[3]

Acts Interpretation Act 1954 (Qld) ss 14D, 32D

Archer & Anor v Council of the City of Gold Coast & Ors [2022] QPEC 59 | Case summary | Zoe

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

[2022] QPEC 59

Planning and Environment Court of Queensland|2022-12-23

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Court

Planning and Environment Court of Queensland

Decision date

2022-12-23

Source

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Judgment (893 paragraphs)

[1]

PLANNING AND ENVIRONMENT - APPEAL - appeal against the Council's approval of development application - where the development application is for partial demolition and redevelopment of the Old Burleigh Theatre Arcade - where the proposed development is for a multiple dwelling building containing 30 units, food and drink outlets and shops - where the existing building on the subject land is locally heritage listed - where the height of the proposed development exceeds the height on the Building higher overlay map - where the appellants contend the development is unacceptable due to, inter alia, impact on heritage values and issues relating to traffic, density and built form - whether the proposed development will unacceptably impact on the heritage value of the locally-heritage-listed building - whether the built form of the proposed development is appropriate having regard to s 3.3.2.1(9) of City Plan - whether the proposed development will result in unacceptable traffic impacts - whether there are relevant matters that support approval - whether the proposed development should be approved in the exercise of the discretion

[2]

PLANNING AND ENVIRONMENT - APPEAL - where the Chief Executive to the Department of State Development, Infrastructure, Local Government and Planning contends that the State development assessment provisions are a mandatory consideration - whether the appeal relates to the referral agency response - whether the Court must assess the development application against the State development assessment provisions

[44]

[1] Immediately adjacent the intersection of Goodwin Terrace and the Gold Coast Highway, at 64 Goodwin Terrace and 1823 Gold Coast Highway, Burleigh Heads, are two lots, Lots 1 and 2 on RP 72012 ("the subject land').
[2] Lot 1 on RP 72012 has an area of 1,181 square metres and fronts Goodwin Terrace. It contains a building of local heritage significance variously known as the former De Luxe Theatre building ("the former De Luxe Theatre") and the Old Burleigh Theatre Arcade.
[3] Lot 2 on RP 72012 immediately adjoins the southern boundary of Lot 1 and fronts the Gold Coast Highway. It has an area of 632 square metres and is vacant.[1] Lot 2 is now properly described as Lots 1 and 2 on SP 313766.
[4] The subject land was previously adjoined by a freehold lot on its western boundary that contained a service station. That lot is now part of the road reserve for the Gold Coast Highway. It is under development as a bus station, which is to be associated with the planned light rail station further to the west. The current plans for the light rail station indicate that the station will be in the road reserve for the Gold Coast Highway at a location that is proximate to the subject land.
[5] The Co-respondent, JWZ Partners Development Group Pty Ltd, wants to redevelop the subject land. It proposes to demolish most of the former De Luxe Theatre to facilitate the redevelopment.
[6] On 3 July 2020, JWZ Partners Development Group Pty Ltd made a development application to Gold Coast City Council ("the Council") for a development permit for a material change of use for a multiple dwelling building containing 30 units, food and drink outlets and shops and a development permit for building works to authorise partial demolition of the former De Luxe Theatre ("the development application").
[7] Due to its proximity to a State controlled road, being the Gold Coast Highway, the development application required a referral agency assessment by the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning ("the Chief Executive").[2] The Chief Executive was a concurrence agency and was required to assess the development application against, amongst other things, the State development assessment provisions version 2.6, which was in effect at the time the development application was made.[3] On 20 April 2021, the Chief Executive provided a referral agency response ("the referral agency response"). The referral agency response required the Council to attach conditions, plans and specifications to any development approval given by the Council. A copy of the relevant conditions, plans and specifications were attached to the referral agency response.[4]
[8] The development application was impact assessable and, as such, required public notification. During the public notification period, the Council received about 86 properly made submissions opposing the proposed development, including a petition with about 181 signatories, and one submission in support. Ms Nicolle Archer, a resident of Tallebudgera, and Mr Wayne Purcell, a resident of Southport, (collectively referred to as "the Appellants") each made a submission opposing the proposed development.[5]
[9] By decision notice dated 25 May 2021, the Council approved the development application, subject to conditions. The development approval attached the additional conditions, plans and specifications as required by the referral agency response.
[10] On 22 July 2021, the Appellants commenced this appeal.[6] Ms Archer contends that the proposed development will have an unacceptable impact on the heritage values of the former De Luxe Theatre, and that the built form of the proposed development is inappropriate. Mr Purcell joins with Ms Archer with respect to those matters. He also contends that the proposed development would have an unacceptable traffic impact on the Gold Coast Highway.
[11] JWZ Partners Development Group Pty Ltd and the Council dispute those contentions. The allegations about unacceptable traffic impacts are also disputed by the Chief Executive.
[12] The issue for me to determine is whether, in the exercise of the planning discretion, the development application should be approved.

[56]

[25] I agree with His Honour's observations. They are equally apposite for a party with the onus that provides a list of provisions of a planning scheme on which it relies to support approval of its development application. The written submissions for Ms Archer and JWZ Partners Development Group Pty Ltd were deficient in this regard.
[26] The deficiencies with Exhibit 1.11 and the written submissions had material consequences for the resources of the Court. They led me to spend hours reading, and contemplating, the many provisions of City Plan referred to and the thousands of pages in the almost 200 exhibits tendered during the trial so that I might be confident that I had fully considered all those issues at play.[14] This, in turn, caused me considerable delay in producing these reasons.[15]
[27] Having regard to the difficulties referred to above, the issues ventilated in the written submissions, and the confinement (to an extent) of the issues in the oral submissions on behalf of the Appellants,[16] it seems to me that the issues that remain to be determined can be broadly summarised as follows:
1. Will the proposed development unacceptably impact on the heritage value of the former De Luxe Theatre?
2. Is the built form of the proposed development appropriate?
3. Will the proposed access arrangements result in unacceptable traffic impacts?
4. What is the significance of the properly made submissions and lay witness statements?
5. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
6. Is the proposed development an appropriate redevelopment of a local heritage place having regard to Temporary Local Planning Instrument No. 9.
7. Is the subject land well-suited for the proposed development?
8. Is the proposed development supportive of, and consistent with, the Gold Coast Light Rail Stage 3 project?
9. Will the proposed development positively impact on the local community by creating employment opportunities?
10. Is there a need for the proposed development?
11. Should the development application be approved in the exercise of the planning discretion?
[28] Before turning to consider each of those issues, it is helpful to understand the nature of the proposed development.

[69]

[37] The Notice of Appeal does not state the legislative basis for the appeal.
[38] In the Supplementary Submissions of the Co-respondent by Election, the Chief Executive submits that the right of appeal that was exercised by the Appellants was that conferred under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016. That is, the Chief Executive says that this is an appeal against the decision made by the Council under s 60 of the Planning Act 2016.[20] It further submits that the Court is tasked to exercise the original jurisdiction for the assessment of a development application. It says to do so, the Court must undertake the assessment required to be carried out by the assessment manager and the referral agency. The Chief Executive submits that this is implicit from two things. First, the fact that, under s 43 of the Planning and Environment Court Act 2016 (Qld), the appeal is a hearing anew. Second, s 46(5) of the Planning and Environment Court Act 2016 states that the Court is not prevented from considering and making a decision about a ground of appeal (based on a referral agency response under the Planning Act 2016) merely because that Act required the assessment manager to refuse the development application or approve it subject to conditions. The Chief Executive says that it follows that the State development assessment provisions are a matter against which the development application must be assessed by the Court.[21]
[39] On the Chief Executive's approach, there is no difference between the appeal rights under items 2 and 3 of table 2 in sch 1 of the Planning Act 2016. The Chief Executive relies on the reference to the appeal being by way of hearing anew to justify the Court revisiting every aspect of the development application process.
[40] I disagree with the Chief Executive's analysis.[22] It ignores that s 43 of the Planning and Environment Court Act 2016 (Qld) does not only state that an appeal is by way of hearing anew. It states:

[103]

[62] The relief sought is that the appeal be allowed, and the development application be refused.
[63] As I have already mentioned in paragraph [7] above, the Chief Executive was a referral agency for the development application. Its referral agency response required the Council to attach conditions, plans and specifications to any development approval, a copy of which were attached to the referral agenc[27]response.27
[64] Neither the prayer for relief nor the grounds of appeal in the Notice of Appeal refer to a provision of the development approval that relates to the referral agency response, or to a failure to include a provision in the development approval having regard to the referral agency assessment requirements. The Notice of Appeal makes no reference to the Chief Executive's referral agency response.
[65] The absence of reference to those provisions of the decision notice that relate to the referral agency response in the Notice of Appeal together with the failure to name the Chief Executive as a co-respondent is a strong indication that the appeal was commenced under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016, i.e., an appeal against the decision made by the Council, as assessment manager, under s 60 of the Planning Act 2016.
[66] In her written submissions, Ms Archer confirms her intention to appeal only against the Council's decision. She says her appeal was commenced under s 229 and sch 1, s 1(4) and table 2, item 2 of the Planning Act 2016.[28]
[67] Mr Purcell's intention is not so limited. It was clear from Mr Purcell's conduct in the appeal that he seeks to take issue with the extent of compliance with the State development assessment provisions. In effect, he seeks to challenge a provision of the development approval, being that part of the decision notice that records that the Chief Executive directed the Council to give any development approval subject to the stated development conditions.
[68] Further, the desire to challenge the decision insofar as it relates to the Chief Executive's assessment is apparent from the grounds of appeal wherein the Appellants allege that the proposed development should be refused having regard to provisions of the State development assessment provisions.[29]
[69] In this case, I am persuaded that:

[200]

[146] It may be thought that the submissions set out above are an incomplete quote as they appear to be missing relevant context that would assist in their comprehension. That is not the case. There was no apparent connection between paragraphs 5.17 to 5.23 of the Outline of Argument prepared on behalf of Ms Archer and any of the preceding or following paragraphs. There is also no apparent connection between the submissions and the real issues in the trial. As such, it is sufficient to make four brief observations.
[147] First, I am not persuaded that there is utility in examining the adequacy of the investigation of elements of social significance in the Conservation Management Plan. It is not a matter that has been put in issue. Further, as I have already noted in paragraph [143] above, the question of compliance with the assessment benchmarks with respect to cultural heritage is not determined by ascertaining whether the proposed development is consistent with the Conservation Management Plan.
[148] Second, although Ms Archer anticipated a "suggestion that the TLPI contained a material error", there was no submission, nor an allegation in issue in the proceeding, to that effect. Further, there is no issue in the appeal that raises the contents of the Council's superseded 2003 Gold Coast planning scheme, and the superseded scheme is not in evidence before me.
[149] Third, I do not accept that, absent Temporary Local Planning Instrument No. 7, the former De Luxe Theatre could be removed or demolished without the Council's knowledge. It is on the local heritage register and has been since 6 December 2019. Pursuant to s 44(5) of the Planning Act 2016 and s 20 and sch 10, pt 8, div 1, subdiv 1, s 14 of the Planning Regulation 2017, development on a local heritage place is assessable development. If the development involves only building work (such as demolition alone), the Council would be a referral agency for the development application pursuant to s 54(2)(a) of the Planning Act 2016 and s 22 and sch 10, pt 8, div 1, subdiv 3, table 1 of the Planning Regulation 2017. For other forms of development on the local heritage place, the Council would have been the assessment manager pursuant to s 48 of the Planning Act 2016 and s 21 and sch 10, pt 8, div 1, subdiv 2, table 1 of the Planning Regulation 2017. Either way, absent applicable provisions in the planning scheme, the development would require assessment against the code in sch 2 of the Queensland Heritage Regulation 2015.
[150] Fourth, the contents of the Conservation Management Plan have no bearing on the question of compliance with the criterion in overall outcome (g) of Temporary Local Planning Instrument No. 7.
[151] Having disposed of the various arguments upon which the submissions for the parties focussed, it is convenient to now turn to the substantive question of whether there is compliance with the relevant assessment benchmarks about heritage impacts.

[268]

[188] In support of these observations, the Conservation Management Plan includes the Clarke Gazzard plans and photographs showing the demolition of the 1930s auditorium with the 1955 "book ends" remaining.[156] The Conservation Management Plan then includes a series of "Evolution diagrams" as figures 21 to 23, which are said to identify the three major stages of the evolution of the building.
[189] In section 4.0, the Conservation Management Plan provides further detail about the extent of pre-1955 fabric that remains, including photographs of the relevant fabric.[157] It also includes annotated floor plans in section 4.5 of the Conservation Management Plan.[158]
[190] Although Ms Pearce disagrees with the description of the pre-1976 elements as involving "little" of the 1930s elements, she does not challenge the accuracy of the Conservation Management Plan insofar as it identifies the pre-1976 elements of the former De Luxe Theatre.[159] The heritage experts extract the annotated floor plans, without challenge, in their joint report.[160]
[191] I accept that the pre-1976 fabric of the former De Luxe Theatre is that which is identified on the annotated floor plans in section 4.5 of the Conservation Management Plan as "possible 1933 fabric" and "1955 fabric". In general, the external fabric comprises the 1955 suspended awning over the footpath, the 1950s brick bookend towards the Goodwin Terrace frontage and the 1950s rear bookend, albeit with some alterations to that external fabric. Notable alterations to the rear bookend include replacement of the windows with metal sliding windows, the addition of an external stair providing access to the second-floor residence, the addition of a large commercial exhaust stack, a new arched entry at the western end of the ground floor, and the addition of a large advertising sign in front of the south facing gablet.[161] Much of the 1950s interior fabric has been replaced. However, the rear bookend includes internal fabric associated with the 1955 apartment.

[301]

[208] I have already addressed all other submissions made by Ms Archer with respect to heritage in paragraphs [127] to [137] and [145] to [150] above. Mr Jones did not make any oral s[166]issions on Ms Archer's behalf.166
[209] Here, the submissions of Ms Archer offered no appreciable assistance about the evidence she relies on to support her allegations of non-compliance. The submissions fall well short of what is expected.
[210] Mr Purcell was a self-represented litigant. He did not provide written submissions, electing instead to confine his submissions to those made orally. His oral submissions provided focussed assistance about the evidence he relies on and why he says that evidence should be preferred to other evidence. While brief, his oral submissions admirably addressed the expectations referred to in Peach v Brisbane City Council & Anor.[167]
[211] Leaving aside the issue of the loss of cultural heritage significance occasioned by the demolition of the rear bookend,[168] Mr Purcell advances two reasons why he says the design of the proposed development is not compatible with, and does not appropriately respond to, the cultural heritage significance of the former De Luxe Theatre. First, Mr Purcell submits that the podium does not reflect the form and scale of the heritage listed building because it extends the podium beyond the existing dimensions of the heritage building. Second, Mr Purcell submits that the tower component of the proposed development does not allow the form and shape of the heritage building to be easily recognised. Mr Purcell identified that he relied on the evidence of Ms Pearce in this respect. He submits that her evidence should be preferred to that of Mr Richards and Mr Elliott on the basis that she is more experienced. In that regard, Mr Purcell says that Ms Pearce is a registered architect and has executive membership to ICOMOS,[169] which Mr Purcell described as the pre-eminent international body and author of the Australia ICOMOS Burra Charter, 2013 ("Burra Charter").[170]
[212] Ms Pearce addresses the matters to which Mr Purcell refers in the Joint Report of Heritage Experts.[171] In that report, Ms Pearce opines that the proposed development does not provide an appropriate response to the identified cultural heritage significance of the local heritage place. Her opinion is founded on four matters.
[213] First, there is a loss of a substantial portion of pre-1976 building fabric.[172] Ms Pearce says significant pre-1976 elements of the rear bookend include the south elevation, east and west side returns, roof form including deep eaves and fenestration, face brickwork, precast window lintels, rendered banding, timber windows (including frames, sills and remnant leaves) and the metal raingoods (being gutters and downpipes).[173]
[214] Second, Ms Pearce opines there is a removal from the local context of the form of the building that contributes important landmark qualities communicating its historic use.[174] Ms Pearce says that during its 92-year life, the building has become an important landmark in the locality, contributing significantly to the community life of Burleigh. Ms Pearce says that the subject building was operational as a dance hall and theatre for approximately 36 years but has subsequently operated with different uses over the past 56 years. While it involved redevelopment, Ms Pearce says the place was re-established as the Old Burleigh Theatre Arcade and became a highly popular retail and recreation destination. She says that because of the ongoing use of the building, together with the building's name and the surviving pre-1976 elements, there continued to be a strong visual representation of the building's origins as a theatre. While the building was changed in 1977 and underwent a change of use, with impacts on the 1955 building fabric, the significant history of the building's origins remained unchanged. Ms Pearce says that the surviving building elements represent the historic use and remain critical in demonstrating the tangible link to, and understanding of, this significant history.[175]
[215] Ms Pearce accepts that the Conservation Management Plan describes the rear bookend as having features with less importance as compared to the front bookend. Nevertheless, she says that its demolition results in a loss of building form, landmark, and character qualities.[176] She says it removes significant, identifiable form and fabric that is visible in views from Memorial Park, the Burleigh Heads commercial precinct to the west and the Gold Coast Highway to the south.[177] Ms Pearce opines that removal of the side and back elevations will result in the loss of important aesthetic attributes that are identified in the entry on the local heritage register.[178]
[216] Third, Ms Pearce says that the reduction in internal social spaces has a detrimental impact on the cultural heritage significance of the building.[179] She says that a substantial proportion of the ground floor is given to residential services, reducing the available area for community access and interaction. Ms Pearce's view that the reduction is unacceptable is premised on her opinion that there is significance to the previous use of arcade space for restaurants, cafes, a surfboard shaper, and small-scale retail operations. Ms Pearce says the longest running commercial tenant was the Mexican restaurant, "Montezuma's", which remained until the recent property ownership changes.[180]
[217] Ms Pearce accepts that the post-1976 fabric is not identified to be of cultural heritage significance in the statement of significance criterion or the Conservation Management Plan. However, she considers that the use and social significance of the arcade in the building following the 1976 developments may not have been adequately examined. She says that this is demonstrated in the peer review of the Conservation Management Plan.[181] Ms Pearce says that the upper-level flats were rented by various local people who contributed to the surfing community, along with nationally recognised champion surfers. She contends that over the decades of commercial operation, the arcade was described as a popular meeting place for the local beach-going and surfing community and has substantial meaning for many residents. She relies on the statements by local community laypersons in the submissions and the affidavits to that effect.[182]
[218] Fourth, Ms Pearce says that the cultural heritage significance of the building is detrimentally impacted by the unresponsiveness of the design, which she says does not reflect or portray the identified attributes of character embodied by the building.[183] Ms Pearce is critical of the additional podium area extending to the south and of the substantial tower located behind the retained front façade and over the footprint of the Burleigh Theatre Arcade. She says the heritage frontage is overborne by the scale of the tower and the design of the proposed rear podium bears no relationship to the current form of the heritage building. Ms Pearce says that these design aspects do not interpret or respond to the form or scale of the significant aspects at the west and south of the Burleigh Theatre Arcade. In her view, they totally change the nature of site. She says that, except for the front façade, the footprint and form of the Burleigh Theatre Arcade is lost.[184]
[219] Ms Pearce also criticises the design because, when viewed from Goodwin Terrace, the proposed tower is set off-centre to the clearly symmetrical, stepped façade parapet. She says that these aspects of the design have some adverse effect on the aspects of character, setting and appearance of the local heritage place.[185]
[220] I have difficulty accepting the opinions proffered by Ms Pearce for three reasons.
[221] First, I do not accept Ms Pearce's opinion that the proposed development will remove the form of the building that contributes important landmark qualities communicating its historic use from the local context. In explaining her opinion, Ms Pearce places weight on the ongoing use of the Old Burleigh Theatre Arcade as a highly popular retail and recreation destination. As such, Ms Pearce has failed to focus on the identified cultural heritage significance of the former De Luxe Theatre. This infects her opinion such that I do not consider her opinion to be reliable.
[222] Second, a key matter informing Ms Pearce's opinion was her view that the reduction in internal social spaces will have a detrimental impact on the cultural heritage significance of the building. Her views in that respect were founded on the fact that the use of the arcade for a range of restaurants, cafes, a surfboard shaper, and small-scale retail operations had substantial meaning for many residents. While that may be so, those uses are not identified as having cultural heritage significance in the statement of significance.
[223] Third, I do not accept Ms Pearce's opinion that the cultural heritage significance of the building is detrimentally impacted by the unresponsiveness of the design. Her criticisms are not supported by the plans, elevations, and visual representations of the proposed development in Exhibits 2.01 and 2.02.
[224] Mr Elliott and Mr Richards disagree with Ms Pearce about the suitability of the proposed development in heritage terms.
[225] Mr Elliott is of the opinion that the proposed development is compatible with, and appropriately responds to, the cultural heritage significance of the former De Luxe Theatre, including its contextual significance.
[226] In explaining his opinion, Mr Elliott notes that the Deluxe Theatre building was originally constructed in 1930 and operated as a dance hall and a cinema from that time until 1966, when the venue closed. After approximately a decade of lying dormant, the building was partially demolished, reconstructed and internally reconfigured as a shopping arcade. Mr Elliott says that this is a different land use to that which is identified as of significance. He says that the subject building has not been utilised as an entertainment venue of any description for the past 56 years.[186]
[227] Mr Elliott notes that the identified cultural heritage significance of the place is aligned with the practice of independent film exhibition by owner-operators on the Gold Coast. This is the significance referenced in criterion (a) of the statement of significance for the former De Luxe Theatre quoted at paragraph [171] above. Mr Elliott opines that the building's significance in that regard is somewhat time-damaged and ill-founded given its current configuration and the more recent land uses within th[187]uilding.187
[228] In terms of the aesthetic importance attributed to the former De Luxe Theatre building under criterion (e) of the statement of significance, Mr Elliott says that the local landmark status of the building is predominantly maintained through the retention and adaptation or integration of the three-storey, circa-1950s structure at the front of the building and the series of engaged brick piers along the western (Gold Coast Highway) frontage of the subject land. He says the design of the proposed development maintains significant views to the historic building from the surrounding streets and public areas. Mr Elliott notes that the proposed development retains all the extant architectural elements of the "striking feature" front façade of the building that is readily viewed from the beach, Mowbray Park, and the public promenade across the road to the north.[188] In addition, Mr Elliott notes that the articulated face brickwork façade that extends down the western side of the building will be retained and visible from the Gold Coast Highway. It will be complemented by face brickwork piers that are set in the same module of repetitive bays as those that presently exist along the western façade.[189]
[229] Mr Elliott acknowledges that the existing rear façade of the heritage building is to be demolished and the open space behind it is to be redeveloped as part of the podium structure for the proposed mixed-use tower. However, he opines that the current "back-of-house" view of the heritage building is neither significant nor critical to the conservation of the inherent cultural heritage values attributed to the subject land or the maintenance of a contextual setting for the former De Luxe Theatre building. In that respect, Mr Elliott notes that the unobstructed views of the western (side) and southern (rear) elevations of the heritage building have only recently been revealed. Those aspects of the building were previously substantially concealed from public view by ancillary structures situated immediately to the west and south of the heritage building. Mr Elliott's observations in this regard are supported by the elevated panoramic satellite image of the subject land taken on 15 September 2019.[190] They are also supported by many photographs in Exhibit 2.02 and in the Architecture Joint Experts' Report.[191]
[230] In response to criteria (g) & (h) (i.e., the social importance and special association with a person or organisation respectively), Mr Elliott considers that the previous use of the building as a major entertainment venue from 1930 to 1966 and the special association with William Fradgley and his family and the Thams brothers and their family are historical aspects of this building that are related to its operational use as an entertainment venue in Burleigh Heads up until about half a century ago. That being the case, Mr Elliott opines that any redevelopment of the subject land that seeks to retain a substantive recognisable portion (or portions) of the heritage building would appropriately recognise and respond to these aspects of heritage significance.
[231] The proposed development introduces a further alternative land use mix to the subject land, being use for a mid-rise residential tower with commercial podium tenancies below. However, Mr Elliott notes that the circa 1950s rebuilding and renovation of the De Luxe Theatre by the Thams family to address cyclone damage already introduced a considerable residential component to the subject land, including a residence and six ancillary flats, and commercial tenancies at street level. While the redevelopment of the building at that time maintained the primary use of the building as an entertainment venue (i.e., as a theatre), the theatre operations only continued for about another decade after that work was completed.
[232] Mr Elliott opines that, drawing together the strands of cultural heritage significance attributed to the former De Luxe Theatre, the extent to which the extant building has been retained and integrated into the proposed development achieves an appropriate heritage conservation and management outcome. He says that the proposed development continues to represent the key elements of the former De Luxe Theatre as a local landmark and as a signifier of the publicly available entertainment offerings within the Burleigh area during the interwar and immediate post-World War II periods. Mr Elliott says the retained components of the heritage building within the proposed development represent the respective historical aspects of the subject land reflected in criteria (g) and (h), both of which having long since been discontinued when the former De Luxe Theatre closed its doors in 1966.
[233] Mr Elliott disagrees with Ms Pearce about the significance of the more recent alternative commercial uses. He says that the use of the subject building as a retail arcade is not identified as a basis of local cultural heritage significance. He says that even if there are local connections to the Mexican restaurant tenancy and connections to the local surfing community, neither of these aspects are identified as contributing to the cultural heritage significance of the subject land. Consequently, he says they are not relevant to the heritage assessment of the proposed development.[192]
[234] Mr Richards says that there were extensive changes to the fabric in the 1950s and again in the 1970s.[193] The major alterations in the 1970s removed the theatre auditorium and replaced it with a shopping arcade with masonry side walls, skillion roofs and glazed walls to the east. It removed the auditorium space, both as a use and as a structure, and replaced it with new materials and a new use in between the two 1950s portions of the building, being the front and rear bookends. He says that these wholesale changes mean the integrity of the fabric of the place as a theatre building has been all but destroyed.[194] Only very small parts of the building or subject land are of such cultural heritage significance as to require retention and conservation. They are not such as to prevent redevelopment of parts of the subject land.[195]
[235] Mr Richards says that the loss of the middle section of the building, and its redevelopment, has no impact on the cultural significance of the subject land.
[236] In Mr Richard's view, the loss of the rear masonry bookend also has little detrimental impact on the cultural significance of the subject land. He describes the rear elevation as utilitarian and says that it does not provide important evidence of the picture theatre use.[196] Further, the eastern façade of the building is not exposed or clearly visible from all approaches. Rather, it is hidden by the adjoining development. As for the western side elevation of the building, it features a large section of 1970s fabric that is not of cultural significance. Mr Richards also notes that the western elevation of the building has only recently been exposed by the resumption of the former petrol station on the adjoining land to provide for the construction of the light rail network to Burleigh Heads. As such, the western elevation of the building is not a longstanding view in the townscape of Burleigh Heads. It is not a view that, of itself, is of cultural significance.[197]
[237] In Mr Richards' opinion, the retention of the front elevation of the former theatre is sufficient. He considers that its retention will preserve the strong visual representation of the building's origins as a theatre and the tangible link to the important contribution the place has made to the history of Burleigh and the Gold Coast as a theatre.[198]
[238] In terms of the building's significance as a rare example of an early theatre building on the Gold Coast, Mr Richards opines that a large section of the proposed demolition is not demolition of a former picture theatre. As such, he says that it is not of relevance to the discussion of rarity. The shopping arcade was not an early theatre building.
[239] Mr Richards opines that the proposed development does not impact on the social significance of the former De Luxe Theatre. He explains that physical fabric is often more relevant to aspects of cultural significance such as historical significance or aesthetic significance, where the significance inherently resides in the physical fabric of the heritage place and can be easily identified or highlighted. In contrast, social significance more often resides in individual or collective memories as an idea of a place in history. This significance is less reliant on physical fabric.[199]
[240] Mr Richards accepts that the theatre building has social value and a level of social significance to some members of the local Burleigh community as a relatively early building, and as an early picture theatre (in part) at Burleigh Heads and the Gold Coast. However, the theatre building was never a publicly owned building and did not enjoy the associations of a public building.
[241] Mr Richards says that the feeling the community has for the building in the 2010s and 2020s is to be understood in the context that it is a former theatre that stopped showing films in the 1960s and that lost its auditorium in the 1970s. As such, to the extent that the former De Luxe Theatre building has social significance in 2022, despite all the changes that have occurred to the subject land over time, the significance has limited connection to the physical fabric of the place.[200]
[242] Mr Richards says that the more recent social interaction with the place referred to by Ms Pearce will be maintained with the proposed development. The proposed development provides ample opportunity for continued interaction in the ground floor of the building in those parts dedicated to retail and commercial tenancies and to indoor and outdoor dining, and in the double height atrium space on the ground level that will be available for public access.[201]
[243] Mr Richards is of the opinion that the character of the heritage place is established by the form and building materials of the front elevation of the building, which is retained by the proposed development. Further, were it considered relevant, the masonry character of the building along its western elevation will be represented by a series of expressed masonry elements that match the colour of the retained front section of the building. They represent the current painted masonry piers.[202]
[244] In Mr Richards' view, the demolition of the middle section and the rear section does not adversely affect the appearance of the heritage place.[203] The appearance of the heritage place will be appropriately respected by the retention of the front elevation. Mr Richards disagrees with Ms Pearce's view that the off-centre tower and the lack of setback of the tower from the podium to the west adversely affect aspects of character, setting and appearance of the local heritage place.[204] In Mr Richards' opinion, the new built form is sufficiently separated from the retained front elevation of the building to permit the two elements (being the heritage front elevation and the new tower) to be understood and appreciated as separate and distinct elements.
[245] In addition, in Mr Richards' opinion, the historical interpretation proposed as part of the proposed development will deliver a better outcome for the interpretation of the history of the former De Luxe Theatre than the current situation. He says that it is also sufficient to comply with the relevant and applicable planning instruments.
[246] According to the Burra Charter, interpretation is used to explain or highlight the cultural significance of places where the significance is not readily apparent or hidden. Interpretation is also used to continue the important stories of a place where elements of fabric of a heritage place no longer survive, or are demolished or cannot be retained, and where the elements are important to commemorate the previous history and former use of a place. The naming of the 1970s shopping arcade as the "Old Burleigh Theatre Arcade" was a method of historical interpretation at that time, recognising the history of the place in the present and continuing it into future when the theatre use had long since finished.[205]
[247] Here, the podium level of the building along the western elevation will be expressed by a series of brick piers along the lower floors. In Mr Richards' view, the piers seek to distinguish the podium level of the new building from the tower to maintain the current setting of the building as much as possible.[206] Further, the new design of the tower will incorporate the outline of the western wall of the existing building in the paving pattern along the western colonnade to acknowledge the footprint of the existing building within the new building design.[207]
[248] The front entrance off Goodwin Terrace will be retained and remain as the main entrance to the building on its central axis. The former theatre sign will be reconstructed as a cantilevered blade sign and fixed to the front elevation of the building.[208]
[249] The rear wall of the retained front section of the building is proposed to be finished with original face brick or render painted in brick colour. A public arcade will be created internally on the ground floor with a two-storey volume behind the retained front section of the building and the internal face brick wall. This wall will be visible within the proposed new double height central arcade volume and will display interpretive, large-scale photos.
[250] The cultural history of the subject land will be told internally with photos and memorabilia (if any can be found via a social media campaign with locals) representing the key themes of the subject land as theatre, cinema, dance hall, arcade etc.[209] A theatre story will be curated telling the history of the place as a movie theatre through motion pictures via a screen with projected motion picture images (including the last film shown in the Burleigh Theatre - John Wayne's "Circus World").[210] The evolution of the subject land will be told showing the key changes and periods of the subject land's development through physical models.[211]
[251] The 1950s apartments will be showcased in the new development. This will be achieved through salvaging items from the remaining rear bookend apartment on the second floor and remnants from the former apartment on the first floor. The salvaged items, including 1950s lights, doors, fittings, and fixtures, will be reused in a curated arrangement of artefacts with interpretive signage in display cases or a glass window box.[212]
[252] A historical colour scheme study will be done on all painted surfaces of the retained heritage fabric to guide and inform proposed colour schemes for the proposed development before any works are done.[213]
[253] In terms of setting, Mr Richards explains that the subject land is in the centre of Burleigh Heads. The dominant built environment of the area, and the general setting of the heritage place, is one of mid-rise residential buildings. Mr Richards opines that the proposed development represents a compromise between the heritage retention of the most significant elements of the heritage place and a redevelopment of the subject land in accordance with its underlying zoning.[214]
[254] I accept the evidence of Mr Elliott and Mr Richards. I prefer their evidence to that of Ms Pearce. Although they do not have the same qualifications as Ms Pearce, they are appropriately qualified to express expert opinions about the heritage matters in issue in this appeal.
[255] Further, Mr Richards' evidence about the interaction between the new elements of the proposed development and the retained heritage elements accord with the plans, elevations, and visual representations of the proposed development in Exhibits 2.01 and 2.02. His opinions about the extent of contribution of the rear bookend to the landmark status of the proposed development is consistent with the entry in the local heritage register (read as a whole) and is well-demonstrated by the many photographs in Exhibit 2.02 and the Architecture Joint Experts' Report.[215]
[256] The evidence of Mr Elliott and Mr Richards comfortably satisfies me that the proposed development complies with:

[326]

[268] The sole evidence to which I was directed in support of these submissions was, in relation to the reasonable expectations of the community, a reference to the evidence "set out in the Lay Witness Statements, Exhibits 9.0001 to 9.0005".
[269] The observations of His Honour Judge Jones in Upan Company Pty Ltd v Gold Coast City Council[220] are of no assistance to me. Leaving aside the absence of evidence before me about the design of the building to which His Honour referred, the observations relate to a different development and are of no utility to me in determining the impact of the design of this proposed development.
[270] As for the balance of the submissions quoted above, they are devoid of detail so as to be meaningless. For example, they fail to identify the provision of City Plan with which they allege there is an inconsistency occasioned by adopting a podium form.
[271] Mr Purcell joins in Ms Archer's allegations of non-compliance with City Plan.[221] In his oral submissions, he focussed on the lessening of setbacks to the Gold Coast Highway and the resultant impacts on streetscape character, legibility of the podium form and views of Burleigh Ridge.[222]
[272] Although I received no meaningful assistance from the Appellants in identifying the real issues in the case as they relate to built form, it seems to me that the assessment benchmarks on which the Appellants rely to support refusal call for the consideration of the following questions:
1. Does the building height of the proposed development accord with the intended building height pattern and the desired future appearance for the local area?
2. Does the proposed development reinforce the local identity and sense of place?
3. Does the proposed development achieve a well-managed interface with, and relationship to, nearby development and ensure that the impact on nearby development and its residents is reasonable?
4. Does the proposed development contribute to a varied, ordered, and interesting local skyline?
5. Does the proposed development achieve an excellent standard of appearance of the built form and street edge?
6. Does the proposed development contribute to housing choice and affordability?
7. Does the proposed development protect important elements of local character or scenic amenity, including views from popular public outlooks to the city's significant natural features?
8. Does the proposed development preserve the deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map?
9. Does the proposed development ensure the safe, secure, and efficient functioning of the Gold Coast Airport or other aeronautical facilities?
10. Does the density of the proposed development exceed that shown on the Residential density overlay map?
[273] For context, before answering these questions, it is useful to outline the built form surrounding the subject land.

[327]

[274] As I have already mentioned, the subject land comprises two lots located near the intersection of Goodwin Terrace and the Gold Coast Highway. Following the recent resumption of vacant land to the west, the subject land now has a frontage to Gold Coast Highway of approximately 29 metres (along its southern and western boundaries) and a frontage to Goodwin Terrace of approximately 24 metres (along its northern boundary).[223]
[275] It is expected that the vacant land to the west, which forms part of the road reserve for the Gold Coast Highway, will be improved by works associated with the planned light rail station, including bus stops.[224] Further west, across the Gold Coast Highway, is the Burleigh Heads Bowls Club and Memorial Park.[225] Beyond is the James Street commercial precinct, which is characterised by low-rise commercial tenancies and is one of the main focal points of the local area.[226]
[276] To the north of the subject land, across Goodwin Terrace, is foreshore parkland, the Burleigh Heads Surf Life Saving Club, and the beach.[227] Beyond the immediate vicinity, views towards the subject land from the beach and foreshore park are obscured by Norfolk Pine trees located in the foreshore park. In views towards the subject land from the beach, the adjoining La Pacifique tower does not become visible above the Norfolk Pines until the observer is about 500 metres from the subject land. At this distance, views towards the subject land take in a large expanse of beach and a range of built form, including towers along The Esplanade.[228]
[277] To the east of the subject land is the La Pacifique development, comprising a 17-storey multiple dwelling, with a height of 44.75 metres,[229] and ground level recreation space. La Pacifique is built to the boundary that is shared with the subject land. Its primary orientation is away from the subject land, towards the beach and ocean. The La Pacifique tower is located to the northern part of its site, with the pool area located between the tower and Goodwin Terrace, and a tennis court located across the southern part of that site.[230]
[278] East of the La Pacifique site is the Burleigh Beach Tower, which is also a 17-storey multiple dwelling. It has a height of 45.5 metres.[231] The Burleigh Beach tower is a relatively long tower (43 metres). Its long axis is oriented west to east and it presents its widest facades to the north and south. In contrast to La Pacifique, the Burleigh Beach Tower is located at the southern part of its site, with a tennis court located across the northern part.[232]
[279] Further to the east are two new nine-storey (29-metre-high)[233] residential towers, being Norfolk at 46 Goodwin Terrace and Luna at 50 Goodwin Terrace. With lot areas of 1,012 square metres and 506 square metres respectively, these towers are located on smaller sites than La Pacifique (which is on a site of 2,308 square metres) and Burleigh Beach Tower (which is on a site of 5,075 square metres). The Norfolk and Luna developments have a higher site cover than La Pacifique and Burleigh Beach Tower and have limited open space at ground level.[234] Although they are not as tall as La Pacifique and Burleigh Beach Tower, Norfolk and Luna reinforce the height, scale, and intensity of development on the southern side of Goodwin Terrace between Rudd Park and the Gold Coast Highway.[235]
[280] Further east of these towers is Rudd Park. At approximately 120 metres by 120 metres, Rudd Park is relatively large. It provides a well-defined eastern edge to the intense, taller development at the western end of Goodwin Terrace. In so doing, it reinforces its legibility as a distinct cluster of development.[236] It creates a clear break between the pockets of built form on either side. Burleigh Pavilion sits north of Rudd Park, across Goodwin Terrace. The Pavilion and the Surf Club building are the only buildings located immediately adjacent the beach.[237]
[281] East of Rudd Park, on the southern side of Goodwin Terrace, is a pocket of development of varied form and intensity, including residential towers of 16 and 18 storeys (being the Gemini Court towers) and eight to nine-storey towers fronting Goodwin Terrace. John Laws Park extends along the northern side of Goodwin Terrace.[238]
[282] The Burleigh National Park is comprised of a large area of vegetated headland to the east and south-east of the subject land. It provides an attractive green backdrop to many views through Burleigh Heads. It connects with Burleigh Ridge Park, which follows Burleigh Ridge to the south of the local area.[239]
[283] To the south of the subject land, across the Gold Coast Highway, is a large, seven-storey building that accommodates the Swell Resort and several commercial tenancies.[240]
[284] At the confluence of the Gold Coast Highway and the Esplanade, the north-south oriented beach and foreshore bands deviate eastward before giving way to Burleigh Hill.[241]

[336]

[289] The subject land is shown on Building height overlay map - map 21 within an area bounded by a brown dashed line and the height indicated on the map is "29m".[249]
[290] The proposed development is 14 storeys and 43.5 metres in height. It exceeds the height shown on the Building height overlay map. As such, the proposed development does not comply with the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code.
[291] From the outset of the trial, JWZ Partners Development Group Pty Ltd acknowledged these non-compliances. It relies on the 50 per cent uplift in height permitted under s 3.3.2.1(9) of the Strategic framework, which it says takes precedence over the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code by virtue of s 1.4 of City Plan.[250]
[292] In Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast,[251] I considered version 7 of City Plan to ascertain the degree of importance that the planning scheme attaches to the requirements in s 3.3.2.1(10) of the Strategic framework and the overall outcome in s 6.2.2.2(2)(d)(i) of the Medium density residential zone code having regard to the context in which they appear, including by reference to ss 3.3.2.1(8) and (9).[252]
[293] His Honour Judge Williamson QC also undertook a similar exercise with respect to the overall outcome in s 6.2.2.2(2)(d)(i) and performance outcome PO3 of the Medium density residential zone code in Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor.[253] Although His Honour was considering version 8 of City Plan, there are no material differences between version 7 and version 8 of City Plan with respect to this issue.[254] His Honour's analysis was detailed and carefully considered, and I agree with it. It is consistent with my analysis in Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast.[255]
[294] The analysis in each of those cases had regard to many provisions of City Plan, including ss 3.3.2.1(8), (9) and (10), which specifically address building heights in urban neighbourhoods. They state:

[344]

(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.

[372]

[319] In Mr Curtis' opinion, the proposed development is shown to reinforce local identity through four design attributes.
[320] First, the proposed development's height and bulk, which are comparable to the existing high-rise apartment buildings at the western end of Goodwin Terrace that form part of an evolving cluster of high-rise apartment buildings. These existing buildings, through their contrast to the low-rise scale and open space character of the neighbourhood centre opposite, provide a prominent and established landmark that is integral to the locality's identity. Mr Curtis says that the proposed development is consistent with and will reinforce the cluster as a landmark.
[321] Second, the proposed development will retain the Goodwin Terrace façade of the 'Old Burleigh Theatre Arcade' building, which is a minor landmark that provides a connection to the locality's cultural history. Mr Curtis says that the retention of the Goodwin Terrace façade, and its integration with the podium's enhanced use, will reinforce its ongoing significance as part of the established urban fabric.
[322] Third, the proposed development will contribute to an intensification of use that will assist to activate the proposed light rail station node, which is likely to become part of the locality's identity.
[323] Fourth, the distinctive appearance of the proposed development's tower component, while contributing to the landmark presence of the high-rise cluster, will also screen the relatively austere appearance of the western façade of the existing La Pacifique high-rise apartment building. The proposed tower's appearance will address the Burleigh Village with a highly articulated and a visually complex façade that will complement the Old Burleigh Theatre Arcade façade and contribute to the locality's identity.[280]
[324] Mr Curtis says that the locality's sense of place is largely derived from the elements that contribute to its identity. He considers how these elements are experienced and the meaning they may have will vary for different individuals. However, he opines that for many people the locality's sense of place is likely to be reflected in:

[374]

[325] With respect to the locality's sense of place, Mr Curtis opines that the proposed development will reinforce the sense of place through four design responses.[282]
[326] First, the retention and refurbishment of the Goodwin Terrace and part retention of the Gold Coast Highway facades of the Old Burleigh Theatre Arcade building connects to the locality's cultural past provided by the village centre. In retaining and refurbishing the façades, the proposed development will secure the façades' long-term contribution to the locality's sense of place.
[327] Second, the overall design of the proposed development's podium and tower adopts a visual narrative that celebrates the theatrical origins of the former De-luxe Theatre that once operated on the subject land. It reinforces the contribution that the Old Burleigh Theatre Arcade building provides to the locality's sense of place.
[328] Third, the proposed tower's planning and appearance responds to the sub-tropical coastal setting.
[329] Fourth, the uses accommodated within the ground storey of the proposed podium will contribute to the activation of the street frontage and the ground level conviviality of the Goodwin Terrace and Gold Coast Highway Corner at the gateway to the Goodwin Terrace foreshore opposite the future light rail station. The proposed development's relationship to the light rail station and Goodwin Terrace, and its connectivity to the village centre, will reinforce the existing pedestrian-friendly, seaside-village character.[283]
[330] Mr Butcher agrees with Dr McGowan's description of the elements that predominantly define the existing local identity and sense of place.[284] He adds that, in his opinion, the predominant built form and scale of Burleigh Heads is one characterised as low to medium density. In explaining his opinion, Mr Butcher emphasises the predominance of buildings of one and two-storeys in the commercial centre and the low-height development in the lower lying areas between the Headland and Ridge. He acknowledges the presence of taller buildings but describes them as "isolated" and "sparsely located". He says that the cumulative visual effect of the taller buildings is not one that dominates the skyline or creates adverse impacts on the local character. Mr Butcher says the vegetated Headland and Ridge visually encompass development within Burleigh Heads, not only acting as a backdrop to the beach and foreshore but offering a visual counterpoint to the taller buildings such as La Pacifique and Burleigh Beach Tower. He considers that the prominence of the vegetated natural features and open spaces are integral to moderating the development in the area and creating the area's coastal identity.[285]
[331] Mr Butcher opines that the proposed development will not reinforce local identity and sense of place. His opinion is premised on three matters.
[332] First, Mr Butcher says the height of the proposed development (being approximately 14 metres over that outlined in the Building Height Overlay Map), when combined with the height and form of the two taller buildings (La Pacifique and Burleigh Beach Tower) would clearly and distinctly emphasise the higher built form that would be highly visible from the town centre. He says that would be discordant with the existing built form height in Burleigh Heads; the existing built form transition from La Pacifique to the existing heritage building down to Memorial Park, the Bowls Club and the Burleigh commercial centre; and the intent of the Medium density residential zone, which contemplates a height of 29 metres.[286]
[333] Second, Mr Butcher says that the western façade presents as a highly visible built form element within the context of the Burleigh Heads town centre that dominates views from Memorial Park and the commercial centre towards the Burleigh Headland in the east. He says that this is discordant with the character and identity of Burleigh Heads, which he considers does not seek to promote a single taller building, or a group of taller buildings, as a focal point visible from prominent outlooks.[287]
[334] Third, Mr Butcher says that the additional height over that of a compliant built form makes it inconsistent with the character of the locality as it limits views of the vegetated hills from various locations around Burleigh and does not create a built form transition from the existing taller buildings (La Pacifique and Burleigh Beach Tower) down to the Burleigh town centre.[288]
[335] Like Mr Butcher, Mr Adamson is of the opinion that the proposed development will not reinforce the local identity and sense of place. His opinions are informed by similar matters. They are also informed by his view that the proposed development will have a significant impact on the existing arcade, which he says contributed to the local identity and sense of place as a meeting place for locals.[289]
[336] I do not accept Mr Butcher's opinion that the taller buildings appear to be "isolated" and "sparsely located". Mr Butcher's opinion in that regard sits uncomfortably with his earlier description of the mosaic and the many photographs in evidence before me.[290] The photographs show that there is a pocket of high-rise buildings of varying scale, form, and appearance within the area bounded by Goodwin Terrace, the Gold Coast Highway and Rudd Park. The photographs support the experts' description of the mosaic.
[337] For each of the following four reasons, I do not accept Mr Butcher's opinion that the proposed development will not reinforce local identity and sense of place.
[338] First, I do not accept that it would be discordant with the existing built form in Burleigh Heads to have the higher built form of the proposed development visible from the town centre. The photographs show that La Pacifique is clearly visible from the town centre. The proposed development has a similar height to La Pacifique and will make minimal difference to the extent to which tall buildings will be viewed from the town centre.[291]
[339] Second, I do not accept that the high visibility of the western façade from Memorial Park and the commercial centre introduces an element that is discordant with the character and identity of Burleigh Heads. Rather, it will effectively screen the current view of La Pacifique.[292]
[340] Third, I do not accept that the proposed development will materially change the views of the vegetated hills from various locations around Burleigh. Mr Butcher's evidence is not supported by the many photographs and visual representations in evidence before me and which I accept as providing an accurate depiction of the visual impact of the proposed development.[293]
[341] Fourth, Mr Butcher's opinion about the absence of a built form transition from the existing taller buildings (being La Pacifique and Burleigh Beach Tower) down to the Burleigh town centre is not supported by the provisions of City Plan. Mr Butcher and Mr Adamson both accepted as much during their cross-examination.[294] The Building height overlay maps inform the intended building height pattern and the desired future appearance of the local area. As I have noted in paragraph [304] above, the Building height overlay maps show that the subject land is part of the high-rise spine between the Gold Coast Highway and the beach that runs from the southern end of Miami (proximate to Kelly Avenue) through to the southern end of Palm Beach (just north of Currumbin Creek). Further, to the extent that City Plan anticipates pockets of lower height buildings at Burleigh Heads, the Building height overlay maps indicate that the intended outcome is an abrupt and dramatic contrast in scale, not a gradual tra[295]tioning.295
[342] For similar reasons, I do not accept the opinions of Mr Adamson.
[343] Ms Pearce also expresses opinions about the local identity and sense of place. She says that her view of character aligns with the character identified in the Burleigh Heads Heritage and Character Study (Gold Coast City Council, 2010), which states:[296]

[388]

[353] Early in the hearing, Ms Archer indicated that she did not contend that the proposed development would have an inappropriate shadow impact. However, that allegation was maintained by Mr Purcell.[304] The allegation with respect to shadow impact was later abandoned by Mr Purcell.[305] The decisions of the Appellants to abandon their allegations were wise given the evidence of Mr Curtis.[306] During final submissions, the Appellants did not provide any assistance as to why they say the proposed development does not meet this outcome.
[354] The subject land has only one direct neighbour, La Pacifique. It is otherwise separated by a considerable distance from other development by road reserve and open space. In this context, the only "interface" of potential concern is that between the development and La Pacifique.[307]
[355] This interface issue was the subject of evidence from the visual amenity experts and the town planners.
[356] Mr Butcher and Mr Adamson were each of the view that the proposed development does not achieve a well-managed interface. Critical to their opinions is the absence of a transition in height between La Pacifique and the open space and commercial development towards the west and north-west.[308] As I have already observed in paragraph [341] above, during cross-examination, both Mr Butcher and Mr Adamson accepted that City Plan does not call for a transition in this area. In those circumstances, I do not consider their opinions compelling.
[357] Dr McGowan acknowledges that the proposed development does not fully comply with the acceptable outcomes for side boundary setbacks for the eastern boundary where it interfaces with its only direct neighbour, La Pacifique. The extent to which the setbacks exceed the acceptable outcome are depicted in figure 39 in the Joint Experts' Report - Visual Amenity.[309] Dr McGowan also recognises that the La Pacifique building has no setback to the shared boundary with the subject land. Nevertheless, Dr McGowan opines that the subject land will achieve a well-managed interface with La Pacifique because:

[395]

[363] The outcome sought in s 3.3.2.1(9)(c) is "a varied, ordered and interesting local skyline".
[364] With respect to this issue, I have the benefit of evidence from the visual amenity experts and the architects.
[365] Mr Butcher opines that the proposed development would not create a varied skyline. His opinion is premised on two matters. First, it would reinforce the combined height and bulk of La Pacifique and Burleigh Beach Tower and would be perceived as a similar relative height as those buildings. He says the buildings would present as a dominant collection of closely-positioned structures. Second, the combined height and built form would be visible from key public vantage and arrival points that are very near the subject land.[316]
[366] Mr Butcher also opines that the proposed development would not create an ordered skyline for two reasons. First, he says it would not be responsive to the local skyline in recognising an existing identifiable built form transition from the higher built forms of La Pacifique and Burleigh Beach Tower down to the Gold Coast Highway and lower areas of the Burleigh Centre to the west. He considers that the abrupt change in height would not represent an orderly transition of the skyline within Burleigh Heads and that a height of 29 metres is required in that regard. Second, it would not encourage a height limit of 29 metres contemplated within the Medium density residential zone and, as such, it would not create a balance of built form in its immediate surrounds.[317]
[367] Ms Pearce's opines that the proposed development would create a crowded effect, given its proximity to the existing high-rise buildings, thereby obstructing open sky views and views through to the headland beyond. She accepts that the scalloped curtain treatment on the western elevation is complex and varied when viewed proximate to the subject land but says that it appears homogenous when viewed from more distant points. Further, she says that the lack of a physical setback, podium, or increasing setbacks as the building height increases will accentuate the perception of abrupt height.[318]
[368] Dr McGowan explains that, in his opinion, a varied skyline is not simply a consequence of differences in building height. He considers that a skyline may be varied by differences in building form, appearance, and scale (beyond height).[319]
[369] Dr McGowan describes the existing local skyline as highly varied and interesting. He says that although the City's high-rise spine may be somewhat fractured in the local area, a degree of order is provided by the obvious contrast in scale between the commercial core, the high-rise buildings to the north and to the east, and the open space frame that defines these areas. He says that any development on the subject land will affect the clarity of these areas because the subject land is highly visible and at the interface of the open space frame and the high-rise area.[320] Dr McGowan opines that the proposed development will enhance the clarity between these areas, improving the order in the area. He says that the well-resolved northern and western facades of the proposed development, which are described in more detail in paragraph [382] below, will contribute visual interest to t[321]skyline.321 Further, while the tower component of the proposed development will have a similar height to the two nearest towers, Dr McGowan says it is of an obviously different form, scale, and [322]earance.322
[370] Mr Curtis opines that the proposed tower will provide a landmark skyline structure that will be visible to receptors within the James Street centre locality to the west, receptors within the foreshore open space to the north and receptors in vehicles passing through the locality on the Gold Coast Highway. He says it will provide a prominent bookend to the evolving high-rise cluster and a gateway to Goodwin Terrace. As such, he says that the tower will contribute to the varied, ordered, interest, attractiveness, and distinctiveness of the skyline. Further, Mr Curtis opines that the proposed development's location within an open setting opposite the foreshore and the bowling greens with road frontages to the north, west and south will maintain and promote an open skyline.[323]
[371] The achievement of a varied, ordered, and interesting local skyline is a matter that calls for a value judgment. It is a matter about which reasonable minds might differ.
[372] That said, I prefer the evidence of Dr McGowan and Mr Curtis to that of Mr Butcher and Ms Pearce. Dr McGowan's description of the existing local skyline accords with the photographs before me and Dr McGowan and Mr Curtis each provide cogent explanations that accord with the proposed plans, elevations, and visual representations.
[373] I do not find Mr Butcher's evidence compelling. His opinion about the absence of a varied skyline is founded on consideration of the skyline within one urban block only. That is an unduly restrictive approach in this local area. Mr Butcher also fails to explain the connection between the visibility of the proposed development from key public vantage and arrival points and the creation of a varied skyline. As for his opinion about the absence of an ordered skyline, it starts from the premise that the proposed development does not replicate the existing identifiable built form transition from the higher built forms of La Pacifique and Burleigh Beach Tower down to the Gold Coast Highway and lower areas of the Burleigh Centre to the west. I do not find this approach persuasive.
[374] I also do not consider Ms Pearce's evidence to be persuasive. She does not explain her views well, nor do I consider them to be supported by the proposed plans, elevations, and visual representations.
[375] Further, and in any event, in my view, the proposed plans, elevations, and visual representations establish that the outcome in s 3.3.2.1(9)(c) is satisfied.[324]
[376] The evidence of Dr McGowan and Mr Curtis and the proposed plans, elevations, and visual representations persuade me that the proposed development also complies with performance outcome PO2 of the Medium density residential zone. In reaching that conclusion, I am cognisant that the overall site cover exceeds that in the acceptable outcome and that the site cover of the tower is largely consistent with the acceptable outcome.[325] Nevertheless, the plans and visual representations demonstrate that the locational attributes provide separation from neighbouring development and that the proposed development responds to these locational attributes with an appropriate form that promotes an open skyline.[326] The adoption of a tower component on only part of the subject land is a feature that assists with promoting an open skyline.

[400]

(a) the refurbished Goodwin Terrace façade of the former De Luxe Theatre, which is accentuated as a feature of the proposed development by the setback of the tower behind; > > (b) the now fully exposed western façade of the podium, which retains part of the existing building's facade and includes extensive fenestration; > > (c) a partially new western façade that maintains the visual rhythm of the existing façade's appearance, which is characterised by red brick columns; > > (d) red brick infill cladding to the curved spandrels between the columns at the front edge of the balconies on levels 2 and 3, which complement the red brick columns; > > (e) operable curved screens to the fenestration between the columns on levels 2 and 3, which complement similar screens to the fenestration and narrow balconies on the tower above; > > (f) a brick-coloured linear screen, rather than an operable curved screen, at the podium roof terrace level, which accentuate the visual break between the podium and tower forms; > > (g) a tinted-glass, scalloped, faceted handrail to the narrow, west-facing balconies, which reinforces the visual break between the podium and tower forms and visually caps the retained façade and separates it from the tower; > > (h) the setback of the external wall to the enclosed spaces behind the line of the brick colonnade, which differentiates and accentuates the colonnade as a distinct architectural element and provides greater depth to the appearance of the podium when compared to the tower above; > > (i) the ground storey commercial uses of the podium, the façade's zero setbacks and the setback of the operable shop fronts, which activate the Goodwin Terrace and Gold Coast Highway frontages; > > (j) the visually differentiated wedge-shaped southern end of the podium, which is comprised of: > > > (i) the vertical blade screens at ground level at the southern end of the podium that assist in animating the ground storey's appearance; > > > > (ii) individual upper levels that are characterised by fluted, white, horizontal panels with recessed fenestration above set behind planter boxes. > > > > (iii) façade elements that provide clear expression to each level of the podium and articulate its appearance, fragment its visual mass, and provides visual interest; and > > > > (iv) a landscape roof terrace that includes planter boxes, small trees, and small individual shade structures.[330]

[402]

(a) an extruded rectangular plan form wrapped in projecting concave edges to the north, west and south; > > (b) a northern façade that: > > > (i) addresses Goodwin Terrace with balconies that extend across the full width of the façade on each level and layer the façade's height; > > > > (ii) has a distinctive three-dimensional quality created by the concave alignment of the stacked balconies, their depth and the curved vertical end walls that return along the west and east facing facades; > > > > (iii) includes deep balconies and glass balustrades that provide a feathered edge to the tower's form that mitigates its visual bulk and contributes to the transparency provided by the floor-to-floor glazed balcony walls; > > (c) a western façade that: > > > (i) has a greater width than the northern and southern facades and that is modulated by the feathered western end of the northern façade balconies, a vertical landscape feature within a deep recess that extends from level 1 to the roof line and separates the façade into two principal vertical elements, and the scalloped appearance of the individual stacked balconies within these two principal elements; > > > > (ii) provides individual operable external screens to each of the abovementioned balconies that will mitigate the solar impact of the western sun and provide a varied and dynamic appearance to the façade; > > > > (iii) in its overall composition, alludes to the appearance of a stage curtain suspended above the podium "stage" below; > > (d) a southern facade that: > > > (i) is modulated by three vertical elements that reflect the scalloped articulation of the west-facing façade. The western most element effectively wraps the corner from the western façade and accommodates a narrow balcony; > > > > (ii) contains elements that provide significant animation to the façade's appearance and reinforce the scalloped design motif of the western façade; > > > > (iii) separates the elements with deep recesses, which accentuate the vertical proportion of the façade's appearance; > > (e) an eastern façade that: > > > (i) will be partially obstructed from view by the existing adjoining La Pacifique tower; > > > > (ii) will be modulated by the return of the north and south facing balconies, which will provide book ends to the central part of the façade; > > > > (iii) vertical screen elements; and > > > > (iv) a vertical landscape feature within a deep recess that extends from the podium terrace to the roof line.[331]

[413]

[396] The grammatical construct of s 3.3.2.1(9) is poor. The drafting of s 3.3.2.1(9)(e) is even more unfortunate than the other subparagraphs, although they are also not without difficulty. The outcome is expressed only as "housing choice and affordability". The absence of a qualifying verb is problematic. I agree with the observation of His Honour Judge Williamson QC in Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor[345] that the absence of a verb appears to deny s 3.3.2.1(9)(e) the status of an outcome that is capable of satisfaction by a development. Nevertheless, it is to be given some meaning.
[397] City Plan defines "affordable housing" as "housing that is appropriate to the needs of households with low to moderate incomes",[346] but this is not what is sought in s 3.3.2.1(9)(e).
[398] The term "affordability" is not defined in the Planning Act 2016, the Planning Regulation 2017, the definitions in sch 1 of the City Plan,[347] or the Acts Interpretation Act 1954. As such, pursuant to s 1.2.1 of City Plan,[348] the term is to be given its ordinary meaning.
[399] The Macquarie Dictionary defines "affordable" as "able to be financially afforded".[349]
[400] The phrase "housing choice and affordability" is also to be considered in the context provided by City Plan.
[401] Section 3.3.2.1(9)(e) appears in the Strategic framework. The Strategic framework identifies that City Plan supports development of the Gold Coast into a world-class city. To that end, City Plan represents a major shift from development on the city's fringe to redevelopment of urban centres and key inner-city neighbourhoods. This is intended to achieve an orderly and economically efficient settlement pattern. As part of this, some urban areas will be renewed and transformed thanks to investment in world-class transport infrastructure, while other urban areas will be protected to maintain their existing appearance and amenity.[350]
[402] As part of the strategic intent to achieve a world-class city, City Plan recognises that it needs to plan for all households. In s 3.2.1, City Plan states:

[447]

[422] Further, Ms Morrissy opines that the proposed building height, scale, and form of the proposed development is consistent with its local context and setting. In that respect, she explains that the subject site is well located to accommodate the scale and intensity of development proposed as it contributes to the renewal of Burleigh Heads, where there is good access to recreation assets, centre activities, infrastructure, and public transport.
[423] Ms Morrissy notes that Burleigh Heads will become even more accessible with the extension of the light rail corridor and station, which is currently planned to adjoin the subject land to the west. This is of significance given improvements to public transport are identified in City Plan as being a catalyst for mixed use development and higher density living. Areas around light rail stations are intended to transform into places that become more compact, interesting, connected, and active. Ms Morrissy opines that, in this way, the proposed development contributes to the realisation of planning outcomes associated with the efficient use of land that integrates land use and travel patterns; the capitalisation on investment in existing and planned infrastructure; walkable neighbourhoods and the facilitation of sustainable travel choices by providing opportunity for a greater number of people to travel differently throughout the neighbourhood and City, thereby reducing reduce congestion and air pollution; and improving convenience, travel time efficiency, living costs and health.
[424] Mr Duane, the economist retained by JWZ Partners Development Group Pty Ltd expresses similar opinions to that of Ms Morrissy. He says that the proposed development at primarily three and four-bedroom units would target couples with children as compared with most stock being smaller dwellings for single persons or couples only. As such, he says that the proposed development will add to diversity of housing choice. Mr Duane also opines that the proposed development represents an opportunity to provide higher density residential development in a location that provides a high degree of residential amenity, and which is served by significant levels of private and public infrastructure supporting residential uses. He says that increasing population density in such areas not only achieves planning goals but achieves greater economic efficiency in terms of the use of existing and proposed infrastructure which in turn benefits the community generally.[367]
[425] I accept the evidence of Ms Morrissy and Mr Duane. They each provide cogent explanations for their opinions.
[426] As is evident from the planning scheme context referred to in paragraphs [401] to [413] above, the planning outcomes that Ms Morrissy says are furthered by the proposed development are outcomes that inform the planned settlement pattern in City Plan and the planned outcome of housing cho[368] and affordability.368
[427] For the reasons provided above, to the extent that s 3.3.2.1(9)(e) can be regarded as requiring satisfaction of an outcome of "housing choice and affordability", it is satisfied here.

[451]

[429] Parts of the existing building on the subject land, being those parts that reflect the former De Luxe Theatre, are important elements of local character. For the reasons provided in paragraphs [105] to [258] above, I am satisfied that the proposed development appropriately protects the important elements.
[430] The visual amenity experts agree that the important elements of local character and scenic amenity are the prominent landscape features of the area, namely the foreshore parkland and Norfolk pine trees, the beach and coastline, and the green backdrop of Burleigh ridge and Burleigh headland.[369]
[431] In considering the potential impact, I was assisted by the view impact analysis provided during the development application.[370] This document analyses six viewpoints that represent a range of public viewpoints that would achieve views of the proposed development, including views from the beach. Some of these viewpoints take in the significant natural features in the area. For each viewpoint, the view analysis includes a photo of the existing view; an image that depicts the existing view with a mass model that represents compliance with acceptable outcomes for site cover and setbacks; and a photomontage with the proposed development added. The view analysis does not have regard to likely future development in the area, such as increases in building height contemplated (on the Building Height Overlay Mapping) for the commercial core. To the extent that such future development may affect views towards the subject land and important features of the area, they are not depicted.[371] As was identified by Mr Butcher, there is an anomaly in the key plan for the view impact analysis in terms of the identified location of the photographer.[372] The anomaly is of little important. The viewpoints are appropriate to assist in consideration of impact on views from popular public outlooks.
[432] I was also assisted by the evidence of Dr McGowan and Mr Butcher.
[433] Mr Butcher opines that, in addition to the viewpoints the subject of the view impact analysis, there are important views to the subject land from Memorial Park, the pedestrian crossing point along Connor Street (from James Street to Memorial Park), the intersection of West Burleigh Road and Burleigh Street, and the pedestrian crossing at the intersection of West Burleigh Road and the Gold Coast Highway.[373] The Joint Experts' Report - Visual Amenity contains photographs from each of those viewpoints.[374] He says that those photographs demonstrate that the proposed built form is likely to be highly visible and that the important elements of local character and scenic amenity would be impacted.[375]
[434] I accept that the proposed development will be highly visible. However, it does not follow that the important elements of local character and scenic amenity would be impacted. In many of the identified views, the proposed development will simply replace the current view of La Pacifique. In doing so, it will replace the view of the austere side elevation of La Pacifique with a view of a more resolved and visually interesting façade.
[435] As is explained by Dr McGowan, the view impact analysis demonstrates that for views from the west, around James Street and Memorial Park, the existing La Pacifique building is prominent and already obscures views to the headland backdrop behind. The proposed development would effectively sit within the silhouette of La Pacifique and have only a minor increase in the obstruction of views to the headland or on the view generally. For views from the Gold Coast Highway, approaching the subject land from the north or the south, the proposed development would create a prominent bookend to the existing pocket of high-rise buildings and an abrupt and well-defined edge to the Gold Coast Highway (and future light rail station). From viewpoints to the north of the subject land, the proposed building would not obscure views to any important elements of local character and scenic amenity. From viewpoints to the south of the subject land, the proposed development would obstruct limited views towards the Norfolk Pines that signify the foreshore parkland, but so would development of a height in order of that designated on the Building height overlay map. For views from the north (on the beach) and north-east (near Burleigh Pavilion), the proposed development will present as an attractive and distinctive tower form above the retained heritage building and will bookend the pocket of high-rise development. From these viewpoints, the proposed building would not obscure views to any important elements of local character and scenic amenity. Further, regardless of the viewpoint, the additional height being sought is not the cause of any increased impacts on views.[376]
[436] Similar observations are apposite for the additional viewpoints identified by Mr Butcher.
[437] Having regard to the evidence referred to above, I am satisfied that the evidence establishes that the outcome in s 3.3.2.1(9)(f) is satisfied.
[438] The evidence also satisfies me that the proposed development complies with the overall outcome in s 6.2.2.2(2)(b)(vi) of the Medium density residential zone code which requires:

[505]

[483] The subject land has frontage to two streets, the Gold Coast Highway, which is a state-controlled road, and Goodwin Terrace, which is a local road.[403] Although the Gold Coast Highway is a state-controlled road, it is not a high-speed road. It currently has a posted speed limit of 50 kilometres per hour.[404]
[484] Access to the proposed development is to be to and from the Gold Coast Highway via a driveway adjacent the southern boundary of the subject land. The traffic engineers agree that this access location is almost identical to the existing access for the subject land.[405]
[485] JWZ Partners Development Group Pty Ltd submits that the maintenance of the same access arrangements is of some moment given the Court's obligation to consider the existing lawful use of the land pursuant to s 31(1)(f) of the Planning Regulation 2017. It submits that Mr Rytenskild's complete failure to take this into account, despite acknowledging its relevance, presents as a telling indictment against his evidence generally. I disagree for two reasons.
[486] First, assuming the previous use should be regarded as an existing lawful use even though it has ceased, it is a matter to which I must have regard.[406] However, the legislative regime still requires me to assess the acceptability of maintaining the present access location for the purpose of the proposed development.
[487] Second, there are material differences between the uses associated with the existing driveway and that now proposed. As is observed by Mr Rytenskild, the existing driveway served approximately six car parking spaces which were allocated to staff, whereas the proposed driveway would serve 84 car parking spaces and a heavy vehicle loading facility. The existing driveway was also historically used by vehicles with a low turnover. The previous use would have generated in the order of 20 vehicle movements per day. In comparison, the proposed driveway will be used by approximately 35 vehicle movements per hour during peak periods plus heavy vehicle movements. In addition, previous users of the existing driveway were workers associated with tenancies in the arcade who one would expect to be familiar with the arrangements. That will not be the case for all those who access the proposed development. The access will be used by residential and commercial visitors and delivery drivers who may not be familiar with the access and constrained operating arrangements.[407]
[488] In addressing the traffic issues, JWZ Partners Development Group Pty Ltd and the Council each also place weight on the fact that the proposed access location is the only reasonable access location available that permits preservation of the heritage façade to Goodwin Terrace. Accepting that to be the case, it is difficult to appreciate why any appreciable weight would be placed on that consideration if the access location would create a serious safety issue.
[489] The real issue is whether the safety of the proposed access is compromised by inadequate sight lines. In his Further Statement of Evidence dated 1 June 2022[408] and during cross-examination, Mr Rytenskild confirmed that his concern is limited to a potential issue that may arise after the completion of the Gold Coast Light Rail Stage 3 project.[409]
[490] With respect to that issue, the traffic engineers agree that Australian Standard AS2890 provides the appropriate design standard.[410] Figure 3.2 of AS2890 is a diagram outlining the key elements of the sight distance assessment methodology.[411]
[491] The appropriate sight distance that is required at the access driveway depends on the frontage road speed. The appropriate standard also differs depending on the nature of the property to which the driveway provides access. Here, the appropriate standard is that for "other than domestic". The table associated with the diagram provides sight distance standards described as "Desirable 5s gap" and "Minimum SSD". "SSD" is not a defined term in Australian Standard AS2890.[412]
[492] Mr Trevilyan provides a helpful description of these terms. His evidence was unchallenged. He explains that the "Desirable 5s gap" relates to the ability of a driver on the access driveway seeking to enter the priority road[413] to make a safe and sound decision as to the available gap in the traffic stream. He says that "SSD" means "stopping sight distance" and that "Minimum SSD" relates to the reaction time of a driver and the braking distance of a car on the priority road.[414]
[493] To assist with consideration of whether appropriate sight distances will be achievable after the completion of the Gold Coast Light Rail Stage 3 project, Mr Douglas prepared drawings that overlaid the proposed development on the most recent design drawings for the Gold Coast Light Rail Stage 3 project.[415] He also prepared drawings that depict the current situation, absent changes from the Gold Coast Light Rail Stage 3 project.[416] The drawings were before me as Exhibit 12.02.
[494] Exhibit 12.02 depicts that the egress path out of the driveway is "squared up" for motorists. This may be achieved using line marking, and potentially rumble strips.[417] The annotations on the drawings demonstrate that, having regard to the standards in Figure 3.2 of Australian Standard AS2890:

[507]

[495] Based on that analysis, Mr Douglas opines that the minimum and desirable sight distances for a frontage road with a posted speed of either 40 or 50 kilometres per hour are achieved from the subject access point.[419] Mr Trevilyan agrees.[420]
[496] Mr Douglas says that the only potential issue relates to the placement of the bus stop associated with the proposed light rail station. When buses stop for the boarding and alighting of passengers in the future bus stop, they may momentarily reduce available sight lines. That said, the available sight lines will never be below the minimum sight distance for a 40 kilometres per hour frontage road speed. Mr Douglas says that, in response to this potential constraint, before entering the carriageway motorists may elect to wait for the bus to depart, at which time they will gain greater sight lines. He observes that situations of that kind occur regularly in proximity to kerbside bus stops. As such, he does not regard the use of the future bus stop as a "boarding and alighting" stop as creating any meaningful safety concern. If that is planned, motorists will not reasonably be able to simply wait until the bus departs before they enter the carriageway. If the bus stop is to operate with lengthier dwell times, Mr Douglas says that it would be prudent to locate the front of the bus stop clear of the minimum 40 km/hr sight triangle. He says that is achieved with the current Gold Coast Light Rail Stage 3 project planning.[421]
[497] Mr Douglas says that moving the front of the bus stop by some three metres would also achieve the minimum 50 km/hr sight triangle and moving the stop by around ten metres would achieve the desirable five second gap sight line for a 40 kilometres per hour frontage road. He expects such matters will be considered further and resolved by the Department of Transport and Main Roads as part of the ongoing planning and design of the Gold Coast Light Rail Stage 3 project. His expectation in that regard is informed by his experience in working on such major projects over the past 35 years. He says that in his experience, the onus to make such provision is placed on the design team for the State project.[422]
[498] With the benefit of that further analysis, Mr Rytenskild criticises the safety of the access arrangement for the proposed development for five reasons.
[499] First, Mr Rytenskild's says that Exhibit 12.02 is based on design parameters from AS2890 and Austroads standards, which he says is not appropriate.[423]
[500] The criticism has no force. Exhibit 12.02 only relies on Australian Standard AS2890, except for Sheet 8, which has regard to the standards contained in Austroads. In any event, as Mr Trevilyan explains, it is necessary to have regard to both documents for guidance and to assist interpretation.[424] Even Mr Rytenskild had regard to both. He did so for his assessment of observation angles.[425]
[501] Mr Rytenskild's second criticism is that the posted speed limit for this section of the Gold Coast Highway is yet to be finally determined by the Department of Transport and Main Roads and he considers that the Department would generally desire a speed limit of at least 50 kilometres per hour. On that basis, he says that it is appropriate to adopt a conservative design speed of at least 10 kilometres per hour above the planned posted speed limit of 40 kilometres per hour.[426]
[502] The traffic engineers assumed that the posted speed limit for the Gold Coast Highway will be 40 kilometres per hour once the Gold Coast Light Rail Stage 3 project is completed.[427] The genesis of their assumption can be traced to a response prepared by Bitzios Consulting on behalf of JWZ Partners Development Group Pty Ltd as part of the development application process.[428] This response records outcomes from a meeting with the State Assessment and Referral Agency and the Department of Transport and Main Roads, noting that the posted speed limit would be reduced to 40 kilometres per hour upon the completion of the Gold Coast Light Rail Stage 3 project.[429] The response also includes the Bitzios Consulting Sight Distance Assessment drawing, which was prepared on the basis of a posted speed environment of 40 kilometres per hour and which was approved as part of the changed referral agency response.
[503] On 2 February 2022, the traffic engineers prepared a conduct report which sought, among other things, the current design plans for the Gold Coast Light Rail Stage 3 project and confirmation from the Department of Transport and Main Roads that the design speed and posted speed limit at the location of the subject land would be 40 kilometres per hour.[430]
[504] In a letter dated 9 February 2022, the Department of Transport and Main Roads advised:

[511]

[506] In any event, I do not accept Mr Rytenskild's criticism. It seems disingenuous. As became apparent during his cross-examination, whatever the Department's desire, Mr Rytenskild is firmly of the view that the Department will be forced to adopt a posted speed limit of 40 kilometres per hour because of the road geometry. As he explained during his oral evidence, the location of the light rail station in the middle of the Gold Coast Highway forces the southbound carriageway to be relocated so that it is against the subject land. In his view, the resultant alignment will only permit a design that accommodates a posted speed limit of 40 kilometres per hour.[433]
[507] Third, Mr Rytenskild says that it is not feasible to expect that the design of the planned bus interchange could be modified so that a greater sight line is achieved. He expects that it will need to cater for two buses and says that it would be inappropriate to modify it to improve sight lines.[434]
[508] This criticism does not cause me concern. The current proposed location for the bus stop would not obstruct the sight lines available for a design and posted speed limit of 40 kilometres per hour. Further, I prefer the evidence of Mr Douglas and Mr Trevilyan with respect to this issue. I accept their evidence that it is not a mandatory design requirement to consider a bus when assessing the appropriateness of sight lines for development.[435] I also accept that a sensible motorist would simply wait for a bus to move or exercise appropriate caution in undertaking a turn when the sight lines are more constrained.[436] In addition, as was accepted by Mr Rytenskild during cross-examination, the signals at Goodwin Terrace will generate natural gaps in the traffic.[437]
[509] Further, the design of the Gold Coast Light Rail Stage 3 project is not yet finalised. The final design of the Gold Coast Light Rail Stage 3 project will need to account for the subject land and its existing access conditions as part of its design.
[510] Mr Rytenskild fourth criticism is that Australian Standard AS2890 does not contemplate an angle of observation of more than 90 degrees.[438] This criticism is disingenuous. As was conceded by Mr Rytenskild during cross-examination, the Australian Standard does not contain specifications with respect to visibility angles and sight restrictions due to vehicle design. This is a matter about which traffic engineers typically consult Austroads Part 4A for guidance.[439]
[511] Figure C1 of Austroads Part 4A, vision becomes increasingly difficult when the angle of observation extends beyond 70 degrees. An angle of observation of more than 90 degrees requires the driver to take additional actions, such as to wind down their window so they can view beyond the pillar of a car or to move their body position in the car to look past the pillar and through the rear window. Such measures can increase visibility up to an angle of 120 degrees.[440] This was conceded by Mr Rytenskild during cross-examination.[441] This type of behaviour can be reasonably expected of a driver in many situations when driving. I do not accept that the need for a driver to turn their head, and possibly their body, is a basis for legitimate concern in this case.
[512] Fifth, Mr Rytenskild does not accept the use of rumble strips or line marking will "square up" drivers as they exit the subject land. Further, he is of the view that these safety measures could be removed at any time, could wear off, or may not be maintained, and that rumble strips could pose a safety hazard for cyclists.[442] The exact measure to be adopted is a matter for detailed design. I am satisfied that there is a potential design solution and that conditions can be appropriately drafted to ensure that the design solution is maintained throughout the life of the development. Further, I do not share Mr Rytenskild's concerns that the public would ignore line markings. In my view, it is reasonable to assume that the public comply with matters such as line marking.
[513] For the reasons provided above, I prefer the evidence of Mr Douglas and Mr Trevilyan with respect to safety. Their evidence satisfies me that the proposed access arrangement is safe.

[516]

[515] In the Joint Experts' Report of First Meeting of Traffic Engineers, Mr Rytenskild expresses concern that vehicles exiting the proposed access that cross into the U-turn lane opposite will not be able to join the queue without encroaching the through lane. He says that traffic modelling is required to demonstrate that queuing generated by the signalised U-turn facility will not extend past the proposed point of access under projected traffic conditions for ten years from the anticipated opening year of the development. It is unclear whether he says this is a matter that presents a safety issue or one that he says will worsen the operating conditions of the Gold Coast Highway or both.
[516] Mr Douglas and Mr Trevilyan disagree.
[517] Mr Douglas notes that the subject land has been used in the past and it included an access at the same location. He says that although the development will increase the number of vehicles egressing the subject land, the distance to weave across to enter the U-turn lane remains constant. If motorists have difficulty entering the U-turn lane, there is a further opportunity to use the U-turn lane at the next median opening opposite George Street East, some 350 metres to the south.[444]
[518] Mr Douglas considers the issue further by reference to traffic counts provided by the Department of Transport and Main Roads for the Brake Street and Gold Coast Highway intersection. His assessment concludes that the proposed development is likely to increase potential additional U-turn movements on the Gold Coast Highway by nine to ten per cent. Assuming that half of the motorists would use the Brake Street U-turn, with the other half using the George Street East U-turn facility, Mr Douglas opines that the potential additional U-turn movements are "very low". He calculates an increase of just 4.8 per cent, which represents only a 0.2 per cent increase in traffic movements for the Brake Street intersection.[445]
[519] In addition, Mr Douglas notes that the current concept plans for the Gold Coast Light Rail Stage 3 project show an extension of the turn pocket, which may allow motorists egressing the subject land to more readily cross into the U-turn lane.[446]
[520] Mr Trevilyan makes similar observations. He notes that at differing times of the day, a varying proportion of trips egressing the subject land would seek to undertake a U-turn movement to head northwards on the Gold Coast Highway. He says that this is a movement that is already being utilised, including by users of the subject land. Mr Trevilyan is of the opinion that any potential capacity constraints related to the U-turn facility located near Brake Street is a moot point as an additional U-turn facility is located a short distance further to the south proximate to George Street East. In those circumstances, Mr Trevilyan is of the opinion that this could not reasonably be a matter of refusal.[447]
[521] I prefer the evidence of Mr Douglas and Mr Trevilyan to that of Mr Rytenskild. Their opinions on the issue are cogent and well-explained. Their evidence satisfies me that there are no operational or safety hazards associated with the proximity of the access to the u-turn facility at Brake Street.

[524]

[532] Ms Archer lodged two lengthy submissions with the Council objecting to the proposed development and provided an affidavit in the appeal.[457] They attach results from an online community survey that she ran to ascertain the community sentiment and expectations in relation to the development application. The survey ran from 6 to 19 December 2020 and received 182 responses to questions about opinions on the Old Burleigh Theatre Arcade and the surrounding Burleigh village. As is observed by Ms Archer, that part of the community that responded to her survey expressed concern about the character of Burleigh being changed beyond comfort and recognition. Ms Archer also expresses concern that the proposed development's design does not maintain enough publicly accessible space and that the social significance of the subject land, associated with its use after the theatre use, will be lost.
[533] The affidavits of Mr Hicks, Mr Dick, Mr Magin and Mr Lethlean explain the significance of the existing building on the subject land to them and express concern about the loss of what they regard as important elements of the building, including its public accessibility. Mr Hicks also expresses a concern about the unattractive design and Mr Lethlean explains his concerns about impacts on views, and privacy and amenity.
[534] The submissions and affidavits indicate that the community expects that the heritage listing will protect the existing building's elements that reflect its more recent use for commercial tenancies. As would be evident from my findings above, the expectations that elements of the existing building that reflect its more recent use for commercial tenancies will be protected sits uncomfortably with the protection afforded by the entry of the subject land on the local heritage register. Consequently, little weight can be afforded to that expectation and the grounds for objection founded on that expectation.
[535] The submissions and affidavits also reveal an expectation that the proposed development should comply with City Plan, particularly the outcomes sought in s 3.3.2.1(9). The objections are largely premised on a belief that the proposed development does not comply with City Plan and the protection it affords matters such as building height, building form, local character, setbacks, site cover, scenic amenity, shadowing, heritage, density, and car parking. It is reasonable to expect compliance with City Plan. In large measure, that is achieved by the proposed development. To the extent that the proposed development does not comply with City Plan, the submissions lend weight to the case for refusal of the development application.

[536]

(a) The proposed development is appropriate in terms of: > > > (i) its compatibility with surrounding development (existing, approved and intended); > > > > (ii) it provision of appropriate and desirable infill development; > > > > (iii) its provision of: > > > > 1. housing choice and diversity; > > 2. a development that is well designed and that has appropriate regard to the amenity of, and is otherwise appropriately designed for, the locality in which the subject land is located; > > > > 1. a development on land that is suitable for, and well situated for, development of the type proposed, > > (b) The proposed development is well located with respect to nearby public and private infrastructure including public open space (including public parklands and the beach); complementary and supporting uses (e.g. centre activities, sport, recreation, entertainment and dining facilities); and current transport facilities (private, active and public), as well as proximity to the proposed future Gold Coast Light Rail route (and a station) in the immediate vicinity of the subject land; > > (c) The proposed development is consistent with and complementary to the land uses in the locality of the subject land and the proposed development is a natural and logical re-use of the subject land; > > (d) The proposed development would make a positive contribution to the architectural built form, general development pattern and amenity of the area with no unacceptable adverse amenity or other impacts and no unacceptable adverse town planning consequences but rather it will enhance the amenity and enjoyment of the community, including by way of activation at ground/street level, provision of convenience tenancies and appropriate development above; > > (e) The nature and location of the proposed development is consistent with the reasonable expectations of the community, in all of the circumstances; > > (f) The proposed development is supportive of, consistent with, and will not detrimentally affect, the third stage of the Gold Coast Light Rail in the subject locality; > > (g) The proposed development will positively impact on the local community by creating employment opportunities both during the construction phase and during the lifetime of the development; > > (h) There is an economic, community and planning need for the proposed development."

[564]

[548] The elements identified of high significance are:
- "Townscape connections between the former De Luxe Theatre / Old Burleigh Theatre Arcade and the Burleigh Heads foreshore, Mowbray Park, Memorial Park, the Burleigh Heads Bowls Club and the Burleigh Heads commercial precinct
- Views to and from the front 'book end' to the Burleigh Heads foreshore (including the pine trees) and Mowbray Park (views to and from the north)
- Views to and from the front 'book end' to the Burleigh Heads Bowls Club, Memorial Park and Burleigh Heads commercial precinct (views to and from the northwest and west)
- Views from the Gold Coast Highway (southbound) to the front 'book end'
- Evidence of the 1955 footprint and form adapting the earlier 1930s footprint and form
- The front 'book end' including the Goodwin Terrace front brick façade of the 1955-1966 theatre including the north elevation, east and west side returns, stepped parapet, roof form, fenestration, awning, and street frontage patterning below awning (including bullnose columns, central opening and side entries)
- Original 1955 materials of the front 'book end' including face brickwork, bullnose brick columns at ground level, precast window lintels, rendered banding, timber windows (including frames, sills and remaining double hung leaves on west façade), awning structure (6 metal rods and plates) and soffits, metal raingoods (gutters, downpipes and headers)
- The central 1955 ground floor public entry and access space (adapted from the earlier 1930's central entry) including the ceiling finishes
- Evidence of the fixings for the former 'theatre' sign mounted on the front façade up until 1966
- The 'De Luxe' and 'Thams Bros Est 1912' theatre sign"[471]
[549] The elements identified of significance are:
- "Views to and from the west façade to the Burleigh Heads Bowls Club, Memorial Park and Burleigh Heads commercial precinct
- Views from the Gold Coast Highway (northbound) to the rear 'book end'
- The rear 'book end' including the rear brick façade of the 1955-1966 theatre including the south elevation, east and west side returns, roof form including deep eaves, and fenestration
- Original 1955 materials of the rear 'book end' including face brickwork, precast window lintels, rendered banding, timber windows (including frames, sills and remnant leaves), metal raingoods (gutters and downpipes)
- Evidence of the 1955 planning (former apartments and possible projection room)
- 1955 apartment to second floor, rear 'book end' including layout, joinery and materials, and internal fitout (including cabinetry and light fittings)
- Evidence of front 1955 apartments (originally 4) including front ground floor access corridors, internal timber stairs, timber T&G flooring and floor framing
- Possible remnant section of wall to ground floor (in retail tenancy) and possible evidence of projection room to first floor"[472]
[550] Reading the provisions of Temporary Local Planning Instrument No. 9 with the Conservation Management Plan, only those elements identified as having high significance in the Conservation Management Plan are required to be retained. That is, those elements listed in [548] are the only elements that the Conservation Management Plan "requires" be protected.
[551] The proposed development retains and conserves each of the elements of high significance. The proposed development will also conserve some of the elements of significance, such as joinery and light fittings from the 1955 apartments.[473] As such, the proposed development complies with all the requirements of Temporary Local Planning Instrument No. 9.
[552] The proposed development's compliance with the most recent and focussed planning intentions, as reflected in Temporary Local Planning Instrument No. 9, materially diminishes the significance of the non-compliances with Temporary Local Planning Instrument No. 7 in the exercise of the discretion.

[594]

[589] On the basis that Mr Purcell was self-represented and had received a positive test result for COVID-19, I granted the adjournment.
[590] Following my decision to grant the adjournment, JWZ Partners Development Group Pty Ltd made an application for the costs thrown away by the adjournment, limited to the costs of two counsel for that day, costs of one solicitor and the witness expenses for Mr Duane. The Council also made an application for the costs thrown away by the adjournment, limited to the costs of one counsel for that day and the costs of two solicitors.
[591] Ms Archer and Mr Purcell resisted the application for costs.
[592] The starting position in the appeal is that each party is to bear its own costs.[490] However, under s 60 of the Planning and Environment Court Act 2016, the Court may make an order as to costs when a party has incurred costs in one, or more, of nine identified circumstances. There is no obligation on the Court to make an order if one or more of the circumstances is established. The Court retains an unfettered discretion to make an order as it considers appropriate.
[593] One of the circumstances that may give rise to a costs order is if a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding.[491] This is the foundation for the costs applications made by JWZ Partners Development Group Pty Ltd and the Council.
[594] It is not necessary for me to determine whether the power to award costs is enlivened because, in the exercise of my discretion, I am not prepared to award costs for two reasons.
[595] First, the possibility of an adjournment of the hearing should have been apparent to JWZ Partners Development Group Pty Ltd when it received an email from Mr Purcell on Friday evening about his positive test result for COVID-19 given it was known that Mr Purcell was self-represented and intended to speak on his own behalf. As such, if JWZ Partners Development Group Pty Ltd held genuine concerns about incurring unnecessary cost associated with Mr Duane's attendance on the first day of hearing, it could have arranged to change the order in which it would call its witnesses. This would have ensured it was ready to proceed with the trial if that proved possible while also avoiding unnecessary costs in the event the appeal was adjourned.
[596] Second, even if Mr Purcell had provided notice of the intention in his email of Friday evening, in which he otherwise promptly notified of the results of his COVID-19 test, such notice would not have alleviated the need for the parties (and their legal representatives) to attend on 23 May 2022.
[597] Both applications for costs are dismissed.

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

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