Beckdev Coolangatta Pty Ltd v Council of the City of Gold Coast [2025] QPEC 15

[4] The change application, which was made to Council immediately after the submitter appeal period came to an end for the development approval, seeks to, inter alia, increase the height of the built form to 67.75 metres and 21 storeys.

[5] Council resists the appeal on three alternative grounds. First, it contends the change to the development approval is not a minor change as defined in the Planning Act 2016 (PA). Second, it contends there are sound reasons warranting refusal of the change application on its merits. Third, it contends the change application ought not be approved in the exercise of the discretion.

[6] The appeal is a hearing anew: s 43, Planning & Environment Court Act 2016 (PECA).

[7] It is for the appellant to establish the appeal should be upheld: s 45(1), PECA.

[8] The development approval the subject of the appeal was granted on 24 October 2023 (the development approval). It is a conditional approval attaching to land formally described as Lot 4 on RP115560 and Lot 10 on RP811040 (the site). The assessable development authorised is a new use, namely a material change of use for Multiple dwelling (132 units), Theatre, Community use, Shop, Food and Drink Outlet and Bar.

[9] Condition 2 of the development approval requires the new use to be undertaken and carried out generally in accordance with a bundle of approved plans. Colour A3 copies of the approved plans were before the Court in exhibit 5. A review of the approved plans reveals the built form is a modern and attractive mixed use tower complex. A total of 132 units are proposed. The total gross floor area of the structure is 14,923m2.

[10] As I have already observed, the development approval was granted after an impact assessment. A feature of this process is public notification, which occurred between 7 April 2022 and 4 May 2022. The form of development publicly notified is different to that which was approved. The public were given an opportunity to make submissions about the development application in its original form, which sought approval for a tower 75.5 metres and 23 storeys high. This form of the development attracted significant public interest; 478 submissions were received, of which 458 were properly made. A review of the submissions reveals that matters of amenity, bulk and scale, density, building height, building appearance, and design excellence were key areas of interest for those members of the public who did not support approval.

[11] The form of development was changed twice after public notification but prior to the decision to approve. First, it was changed in February 2023 in response to an information request. The building was reduced to 68.35 metres and 21 storeys in height. After receiving advice from Council that a building of this height was not supported for approval, the development application was changed again in August 2023. The change reduced the height of the building to 58.75 metres and 18 storeys. This is the form of development approved by way of Council decision notice.

[12] No appeal was commenced by the appellant, or submitters, against the development approval.

[13] The appellant's change application seeks to vary the approval in the way identified in exhibit 34. In rudimentary terms, the appellant seeks to alter the development approval in two ways. First, to substitute a new set of development plans for the approved plans. Second, to make consequential changes to the conditions to give effect to the new set of development plans.

[14] The plans (architectural and landscape intent plans) for which the change application seeks approval are contained in exhibit 5 (Document 2.1, pp.72-116). Those plans can be read with, and are complimented by, a bundle of photomontages, which were marked exhibits 7, 8 and 9. The visual aids enable a comparative exercise to be undertaken to expose the changes proposed to the built form approved by the development approval.

[15] The joint report of the town planning witnesses (Ex.1) contains a helpful summary of the changes as between the approved and new development plans. It was agreed between the parties that this table correctly identifies the changes to consider for this appeal. The table is annexed to these reasons and marked A.

[16] In summary terms, the changes proposed to the approved plans can be identified as follows:

(a) an increase in building height from 58.75 metres to 67.75 metres and 18 storeys to 21 storeys;

(b) an increase in the number of units from 132 to 156; and

(c) an increase in gross floor area from 14,923m2 to 17,792m2.

[17] Council contends the change application should be refused for any one of three reasons (Ex.4, para 17), namely that the proposed changes to the development approval:

(a) do not constitute a 'minor change' as defined in the PA (Issue 1);

(b) should not be made having regard to an assessment against the relevant statutory framework pursuant to s 81(4) and (5) of the PA (Issue 2); and

(c) should not be made in the exercise of the Court's discretion, or alternatively pursuant to s 81(2)(g) of the PA (Issue 3).

[18] The appellant has not discharged the onus in relation to Issue 1. This is fatal to the change application; the appeal will be dismissed on this limited basis.

[19] Given the outcome of Issue 1, it is unnecessary to determine Issues 2 and 3.

Issue 1: Whether the change to the development approval results in a substantially different development?

[20] I was persuaded this question should be resolved in the affirmative for the following reasons.

[21] A 'minor change' to a development approval is defined in Schedule 2 of the PA. It was uncontroversial that the only part of the definition in issue is subsection (b)(i), which states:

(i) would not result in substantially different development;"

[22] The substantially different development test calls for a comparative exercise. That exercise in this case requires the development approval, including the approved plans, to be compared with exhibit 34 and the plans referred to therein. The changes identified by this comparative exercise were agreed between the parties. They are discussed at [13] to [16].

[23] Whether the change to the development approval satisfies subsection (b)(i) of the definition of minor change is to be considered broadly and fairly, turning on matters of fact, degree and impression. The point of focus is the 'result' of the change proposed as distinct from the significance of the change. Qualitative and quantitative considerations are relevant to the result of the change, as is Schedule 1 of the Development Assessment Rules: Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2020] QPEC 47; [2021] QPELR 809 and 427 Beckett Rd Pty Ltd v Brisbane City Council [2024] QPEC 4.

[24] To determine whether the change to the development approval results in substantially different development, I had the benefit of a comprehensive bundle of architectural plans (Ex.5) and photomontages (Ex.7, 8 and 9). They depict the development in its approved and changed form. I was particularly assisted by the photomontages. They depict the approved and changed development in context. Their accuracy and reliability was not contested. I am satisfied the photomontages accurately depict the development in its approved and changed form.

[25] The photomontages confirm that the additional building height of 3 storeys and 9 metres will be appreciable from multiple viewing points. It is appreciable (Ex.7 cf Ex.8 & 9): (1) because it marks an obvious increase in the overall height of the built form when compared to the approved development; and (2) because the additional height brings with it additional building bulk, which is evident at the upper most part of the building. That the increase in building height and bulk is visually appreciable from multiple viewing points is consistent with an opinion expressed by the appellant's visual amenity and architecture expert, Mr Curtis. He said the changes to the development approval would result in 'legibly greater building height'.

[26] That the additional building height and bulk is appreciable does not, in and of itself, mean the change to the development approval necessarily results in substantially different development. The change needs to be carefully and closely scrutinised in context. Relevant context here is to be found in the planning scheme. A review of the planning controls reveals that building height and bulk at the uppermost part of the approved development is likely to be sensitive to change. The sensitivity is the product of a forward planning strategy in relation to building height.

[27] As I have already observed, the approved development has an overall height of 58.75 metres and 18 storeys. This exceeds the level stated for the site on a Building height overlay map in the planning scheme. The applicable overlay map earmarks part of the Coolangatta centre, including the site, as having a building height of 39 metres. Where development exceeds the height denoted on the building height overlay map, this is a matter of import for the planning scheme.

[28] The site is included in the Centre zone. Development in this zone is assessed against, inter alia, the Centre zone code. The purpose of the zone code is achieved through a number of overall outcomes, including (2)(d)(ii), which is directed to the height of built form. This provision states that 'Built form...has a building height that does not exceed that indicated on the Building height overlay map'. The approved development exceeds the applicable building height overlay map by about 29 metres. Self-evidently, it does not comply with overall outcome 2(d)(ii) of the Centre zone code. This non-compliance required the assessment manager at first instance to give attention to the Strategic framework in the planning scheme.

[29] The Strategic framework sets the policy direction for the planning scheme: s 3.1(1). To describe the policy direction, the Strategic framework is structured to include layers that build upon each other. One of the layers deals with 'elements'. They refine and further describe strategic outcomes: s 3.1(3)(d). Section 3.4.4 of the Strategic framework deals with the Mixed use centre and specialist centre design and operation element. Section 3.4.4.1 sets out a number of specific outcomes relevant to this element.

[30] Section 3.4.4.1(4) identifies the strategic importance of building height as shown on overlay maps and links this expression of planning intent to the desired future appearance of an area. The provision states:

"The Building height overlay map shows the desired building height pattern and appearance for mixed use centres and specialist centres. This map also shows areas where building heights change abruptly to achieve a deliberate and distinct contrast in built form within and between low, medium or high-rise areas."

[31] The Building height overlay maps, while important, do not prescribe absolute limits. The planning scheme conveys an expectation that approval may be supported for development that exceeds the building height overlay map in a centre. The expectation is to be found in s 3.4.4.1(5) of the Strategic framework (the uplift provision). The uplift provision states:

"Increases in building height occur in mixed use centres and specialist centres where all the following outcomes are satisfied:

(a) a reinforced local identity and sense of place;

(b) a well managed interface with, relationship to and impact on nearby development, including the reasonable amenity expectations of nearby residents;

(c) a varied, ordered and interesting skyline;

(d) an excellent standard of appearance of the built form and street edge;

(f) protection for important elements of local character or scenic amenity, including views from popular public outlooks to the city's significant natural features;

(g) deliberate and distinct built form contrast in locations where building heights change abruptly on the Building height overlay map; and

(h) the safe, secure and efficient functioning of the Gold Coast Airport or other aeronautical facilities."

[32] The uplift provision, considered as a whole, requires building height above that stated on any overlay to be considered having regard to a range of matters. These matters are not limited to the visibility of any additional building height above the overlay or the presence or absence of impact. They require attention to be given to, inter alia, local character considerations, the standard of appearance and the management of interfaces.

[33] The above planning provisions are extracted from version 8 of the planning scheme, which was the document in force when the original development application was treated as being properly made. Version 10 of the planning scheme was also referred to during the appeal. There is, for present purposes, no need to dwell upon the differences between the two versions of the planning scheme; the differences are immaterial. The fundamental point to be made remains the same irrespective of which version of the planning scheme is considered. The point is this: given the extent to which the approved development exceeds the building height overlay, built form height has always been a sensitive parameter for the development approval. That it is a sensitive parameter is confirmed by the submissions received during the public notification period. Many adverse submissions took issue with the extent to which the development exceeded the building height overlay, and its potential for adverse impacts.

[34] Against this background, the result of the change to building height and associated bulk at the upper most part of the built form can be examined. Two perspectives can be adopted. First, the change can be considered in the light of existing circumstances. Second, the change can be considered looking forwards, taking into account extant development approvals that have not yet been acted upon. With the first of these in mind, I was satisfied the minor change proposed did not result in substantially different development. The difficulty in this case arises when a forward looking perspective is adopted. When looking forward, the relationship to, and interface with, an approved but not yet constructed tower on the adjoining land to the south at 39 McLean Street is problematic.

[35] The adjoining land to the south has the benefit of a development approval for a Multiple dwelling in tower form. The photomontages reveal the approved tower is shorter than the approved development, but comparable in height and bulk: Ex.7, pp.5 and 7. The building-to-building relationship between them was described by Mr Buckley as 'sympathetic'. I accept his evidence. It is made good by the photomontages. The comparability, in terms of building height and bulk, of the two approved building forms mean neither visually dominates the other.

[36] The changed form of development materially alters the building-to-building relationship with the approved building form to the south. The photomontages depict a new relationship, one that is characterised by built form dominance rather than similarity and sympathy: Ex.9, pp.5 and 7. The changed form of development visually dominates the built form to the south due to its additional height and bulk. This is a new impact. The impact was aptly described by Mr Olsson. He was called by Council to deal with visual amenity and architectural considerations and described the relationship between the two built forms in colourful terms. He said the changed development puts the adjoining development in the shade in two ways. First, by reason of its visual dominance. Second, by reason of the physical impacts of shadowing the changed form creates. I accept Mr Olsson's evidence. It is consistent with my view of the photomontages. It is also supported by the evidence of Mr Curtis.

[37] Mr Curtis, the appellant's visual amenity and architecture expert, accepted the changed form of development would give rise to shadow impacts upon the upper levels of, and upon the hypothetical occupant, of the adjoining development at 39 McLean Street. He said the impacts would be 'probably not minor' and 'certainly...noticeable'. This evidence, in my view, establishes that the changed development would do one of two things; either exacerbate a known impact (overshadowing on the upper parts of the approved development at 39 McClean Street) or introduce a new impact. Irrespective of which option is selected, both are indicators of a change that results in substantially different development.

[38] The evidence establishes that the likely impacts of overshadowing on the upper levels of the adjoining development to the south will not be trivial; the impacts will be noticeable. That this is so is confirmed by the layout of the approved built form for the adjoining site.

[39] The approved plans for the development to the south show, at the top level, an apartment with extensive glass along its northern façade, which coincides with the interface with the changed form of development. There is also a lounge area with barbeque facilities and the like for occupants of the building on the western end of the building. This area connects to a communal area, including a gym, pool and areas for sitting on the level below. These areas align with the middle of the proposed development and will likely experience noticeable shadowing impacts. These impacts are the direct result of the additional building height and bulk sought by the appellant's change application.

[40] Against this background, Council persuaded me that the change to the development approval would result in substantially different development. This is so, in summary terms, given three matters taken in combination, namely that: (1) the change to the approved building height and bulk is material and would be visually appreciable from multiple viewing points in the locality; (2) the material increase proposed to building height is sought in circumstances where the planning scheme context suggests this is a parameter sensitive to change, engaging the application of the uplift provision; and (3) the change to the approved building height, if allowed, would give rise to the introduction, or exacerbation, of an adverse impact (overshadowing) that is more than trivial - it will be noticeable.

[41] The appellant led a substantial body of evidence about the extent of impact that could be expected from the changed form of development. This evidence was said to establish that the impacts would not be unacceptable. This can be accepted in part; I do not accept this is correct in terms of the likely shadowing impact. There was an evidentiary gap in the appellant's case. The gap related to shadow impacts on the adjoining site to the south. An attempt was made to patch this gap during the hearing but the highest the evidence reached was that of Mr Curtis' opinion, which was referred to in paragraph [37]. His evidence did little to persuade me that the change proposed to the development approval would not result in substantially different development.

[42] This conclusion is, in my view, fatal to the appellant's change application. It cannot be assessed and decided on the footing it seeks a minor change to a development approval. In the event the appellant wishes to persist with the changed form of development, it needs to proceed via a different process, such as an 'other change', with a different assessment regime.

[43] Chapter 3, Part 5, Division 2, Subdivision 2 of the PA provides a mechanism to change a development approval after the expiration of appeal periods. The mechanism is defined in the PA by reference to s 78(1) as a 'change application'. Such an application must be made to the responsible entity identified in s 78A.

[44] There are two types of change application. The dividing line is the product of the 'minor change' definition in Schedule 2 of the PA. A change application that satisfies the definition seeks a 'minor change' to a development approval. A change application of this kind is assessed and decided under ss 81 and 81A of the PA. A change application that does not satisfy the definition is one that seeks an 'other change'. It is to be administered, assessed and decided differently to a minor change to a development approval; section 82 of the PA applies.

[45] The appellant's change application was assessed and decided on the basis that it sought a minor change to the development approval. It was administered, assessed, and decided under, inter alia, ss 81 and 81A of the PA. This had three consequences: (1) the change application was not publicly notified; (2) the public did not have a right to make submissions about the change to the development approval; and (3) those members of the community who have made, or would have made, a properly made submission did not accrue a right of appeal about the changes proposed to the development approval.

[46] The change application before the Court is one that, properly characterised, seeks an 'other change' to a development approval. If it is the appellant's intention to persist with such an application, it has to be assessed and decided on its merits in accordance with, inter alia, s 82 of the PA. This process will, unlike what has happened here, involve the giving of public notification and the accrual of appeal rights for those members of the public who have made, or make, a properly made submission. That the change application must, but has not, been administered in this way brings this appeal to an abrupt end.

Issue 2: Whether the change application should be approved or refused?

[47] A cursory review of the evidence reveals the parties devoted considerable time and money to the resolution of the merits of the change application. This did not end with the preparation of the material led at trial. Public and private resources were also incurred for the hearing and use of Court time. From the Court's perspective, at least 80% of the hearing was devoted to an examination of the merits of the change application.

[48] In circumstances such as this, there is a certain attraction to the idea that the merits of the application should, despite the findings above, be formally resolved by the Court. The rationale for doing so is laudable; it is intended to minimise, as far as practicable, a waste of public and private resources. Such a course should not, however, be adopted in this case. This is so for two reasons, taken in combination. Both assume the appellant continues to seek approval for the proposed changes either in the form of: (1) a fresh change application for an 'other change'; or (2) a fresh impact assessable development application. The reasons are as follows.

[49] First, it is undesirable for the Court to express views about the merits of the changed form of development because, in practical terms, those views have the potential to predetermine the exercise of a future discretion in relation to an application which is yet to be made to, and assessed by, Council. I accept, as a general proposition, there is force to the argument that this, in and of itself, may not necessarily be decisive in every case; whether it is decisive will turn on the facts and circumstances, including whether all of the parties with an interest in the future application are before the Court. This is not the case here. Not all interested parties are before the Court nor had an opportunity to be heard. This is clear having regard to the second reason that follows.

[50] Second, it cannot be said that all persons with an interest in the change application participated in the appeal. Members of the public had no right of appeal in relation to Council's decision. The only entities with an interest in the change application before the Court were the appellant and Council. Given this, and given any new application will allow for public involvement in the decision making process, it is undesirable for the Court to express views, one way or another, about the merits of the change application. To do so in the absence of public submissions directed to the specific form of development for which approval is now sought would be, at least, premature and, at worst, have the potential to predetermine the exercise of future discretion for an application that does not yet exist.

[51] I raised these matters with senior counsel for consideration. After doing so, Mr Job KC and Mr Batty KC both conceded the Court should not consider the merits of the change application in the event the minor change question was resolved adversely to the appellant.

Issue 3: Whether the change application should be approved in the exercise of the discretion?

[53] It is unnecessary to deal with Issue 3 in light of the above.

[54] The findings in relation to the first issue mean the change application before the Court cannot be approved. It does not seek a minor change to a development approval as defined in Schedule 2 of the PA.

[55] Given the merits of the change application were not the subject of consideration or findings, the appeal will be dismissed on the limited basis that the change application does not seek a minor change to a development approval as defined in Schedule 2 of the PA.