Central Equity Limited v Gold Coast City Council

[4] The application was originally lodged with Council in April 2005 and sought a development permit for an apartment building comprising 17 units, in 19 storeys. In December 2005 Council officers including its principal architect recommended approval but Council resolved on 12 December 2005 to refuse the application. After the appeal began and, indeed, up to the time of hearing alterations to the plans were made, but Council was content that the appeal hearing proceed despite those changes.

[5] The variations have the effect of reducing the height of the building to 18 storeys and the number of apartments from 17 to 15. They also increase the degree of site cover and reduce setbacks to Garfield Terrace, Frederick Street and the southern boundary, while increasing the setback on the western side. Some special, smaller car parking spaces are introduced. The size and configuration of the ground floor apartment has also been reduced to provide for a new community recreation space, integrated with a swimming pool, and recreation areas. Landscaping has been redesigned to increase the provision of communal open spaces and some areas of proposed 'deep planting'. The area of the basement podium of the building that exceeds one metre above finished ground level is also diminished.

[6] Each apartment will occupy at least an entire floor and the majority will have two bedrooms. At the upper levels, two three-bedroom apartments are split-level sub-penthouse residences, each occupying 1.5 floors. The penthouse is comprised of one four-bedroom apartment, and occupies the two upper floors. Some 470 square metres of communal open space is provided at ground level, including a recreation area of 158m3 containing a swimming-pool and a terrace, and 150m3 of open space. Landscaping and deep planting occupy other parts.

[7] The proposal now has a site cover of 359.78m3, or, 48.9% of the net site area after allowance for the proposed road widening. Of that percentage, 36.1% is attributable to the residential tower while 12.8% relates to the basement podium. Thirty six car spaces are to be provided in a two level basement, including four visitor parking spaces. It is proposed to be reached by a single access off Frederick Street, with a car lift for movement between the two basement levels.

[8] Under the relevant version of the Gold Coast Planning Scheme[2] this land lies within the Surfers Paradise Local Area Plan (LAP) District, in an area described as Precinct 2[3]. As other parts of the Scheme explain, these LAPs have been introduced to identify those areas of the city with a particular local identity or development character that will benefit from the application of consistent planning guidance and development controls.

[9] This particular LAP is intended to directly address '...important issues associated with land use and the built form of Surfers Paradise'[4] and, in Precinct 2, to 'encourage further high-rise accommodation'. A Desired Environmental Outcome (DEO) for the Surfers Paradise LAP is to encourage '...distinctive high-rise residential and tourist development to enhance Surfers Paradise's famous sky-line and townscape'. The subject site is an area where building height should not exceed 30 storeys.

[10] Under the planning scheme the application was code assessable[5] and the fundamental question is whether or not compliance with the applicable codes has been achieved. Section 7.2 of the LAP shows the High-Rise Residential and Tourist Accommodation Specific Development Code, the Surfers Paradise Local Area Plan Place Code and various others touching car parking, access and transport integration fall to be considered.

[11] Under s 3.5.4 of the Integrated Planning Act 1997 (IPA) assessment is undertaken against the applicable Codes. The process is explained in s 3.5.13 which requires the assessment manager to, firstly, assess the proposal against the Acceptable Solutions. If it complies, approval must be granted. If not, the proposal is assessed (as an 'alternative' solution) against the Performance Criteria of the Codes. If, according to this exercise, the proposal complies it is taken to satisfy the Codes and must, again, be approved. If it does not comply, the assessment manager must determine if conditions can reasonably be imposed to achieve that end. If so, approval may follow through this third avenue: s 3.5.13(2).

[12] If, at the end of these exercises, the proposal is still in conflict with the applicable Codes the assessment manager must consider whether there are sufficient grounds to justify the conflict, having regard to the purpose of those Codes. If no sufficient grounds arise, the proposal must be refused. If grounds do present, the assessment manager must consider whether the decision would compromise the achievement of the DEOs for the planning scheme area and, if compromise is found to arise, refuse the application. In the absence of compromise, the proposal may yet be approved.

[13] The process of using the Codes in the Gold Coast Scheme[6] was helpfully explained by Rackemann DCJ in SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74. They follow a familiar 'performance based' structure similar to those found in many IPA planning schemes. They commence with a statement of purpose and then contain development requirements set out in tables of Performance Criteria (PC) and Acceptable Solutions (AS). As Rackemann DCJ said, the PC are generally outcome focussed and the AS indicate a desirable way to ensure compliance - but they are not the only available solution, and PC '...generally ought not be interpreted as requiring adoption of the Acceptable Solution, or even as requiring an alternative solution to be akin to the Acceptable Solution'[7].

[14] As His Honour went on to say, at para [48]:

It is not legitimate to regard departure from the Acceptable Solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a 'relaxation' or a 'dispensation'. It is another way of achieving compliance with the relevant performance criterion.

[15] Written submissions delivered some time after the conclusion of the hearing by Mr Ure for the appellant, and Mr Litster for Council, largely coincided about the principal issues in the appeal although there was some difference of emphasis. Those issues may conveniently be grouped as, firstly, matters concerning communal open space, site and cover and plot ratio; secondly, landscaping and setbacks, and shadow impacts; thirdly, car parking and traffic; and, lastly matters concerning waste collection, the construction of the basements and the preservation of existing Norfolk Pine trees. Mr Litster's submissions did not directly address the question of site cover, as a separate issue under a separate heading, but do touch upon the matter and it is unarguable that many of the issues can be grouped by reference to Council's general concern that the proposal involves too large a development on too small a site.

[16] Although Chapter 2 of the planning scheme specifies that 'All Performance Criteria are considered separate and distinct'[8], in light of the overlap between the matters addressed by the numerous PC in the Codes which are relevant here, it would be excessively mechanical to simply consider each discretely and, in a cases involving purported compliance in a way different from that proposed by the Acceptable Solution, give each a separate positive or negative response. Undertaking the process in that way would also be entirely discordant with ordinary, common modern principles of statutory construction: Project Blue Sky v ABA [1998] 194 CLR 355[9].

[17] For these reasons it is appropriate to consider compliance with PC concerning matters like site cover in concert with those which touch what are plainly, under the Codes, concerns of a similar type: here, those directed towards setbacks, plot ratios and (because it will affect the visual elements inherent in amenity issues arising in regard to those topics), landscape.

[18] The point may immediately be illustrated by reference to the issue of plot ratio, which concerns PC 29 of the Local Area Code. It requires that the bulk of the development proposal be proportional to the character of the local area, '... with some bonus in the floor space available where identified public benefits are provided'. AS 29.1.14, addressing PC 29 contains reference to a Table and to the High Rise Code. AS 29.1.2 refers to Planning Scheme Policy 18 which contains certain urban design bonus provisions relevant to maximum plot ratios. If the point about overlapping needed reinforcement, it is made more vivid by PC 17 in the High Rise Code which, again, refers to bonuses where '... identified public benefits are provided'.

[19] PC 3 of the High Rise Code and PC 4 of the Surfers Paradise LAP Place Code also exemplify the point: each emphasises building design which maximises separation and creates open space and the maintenance of '... an open character within high-rise residential areas' between buildings which are not '... bulky and visually intrusive'. The AS look to site coverage of not more than 40%.

[20] Additional 'Bonus Elements' for architectural merit are dealt with in Chapter 10[10]. In order to qualify, a proposal must show that it possesses 'cutting edge' or innovative qualities in areas including ecologically sustainable development and 'innovative and/or particular expressive use of a range of building materials' or 'architectural quality'. Chapter 10.1 provides that for outstanding architectural merit components '... there is no standard amount of plot ratio bonus that may be earned: each case will be determined on its merits'.

[21] While it has been accepted, in this Court, that architectural merit is not seen as constituting a 'planning ground' which might overcome any conflict between a proposed development and a planning scheme[11], these provisions elevate the issue to importance here.

[22] Mr Shane Thompson, the architect whose firm designed the building, gave convincing evidence that its structural systems, design and construction processes, ecologically sustainable development standards and, in particular, its architectural merit warranted a significant plot ratio bonus. Mr Robinson, another very senior and experienced architect was not, however, prepared to concede there was anything special, unique or even interesting about the building.

[23] Putting aside the question of architectural merit, Mr Thompson's exposition of these elements of his design was detailed and clear, and persuasive that the building employs systems, and processes and adheres to ecologically sustainable design principles which can fairly be described as innovative - in the sense that they have been incorporated at a level which approaches, or is at the highest and best, of current building practices. Ultimately, Mr Robinson's reluctance to concede these things impressed as ungenerous, and unsustainable.

[24] This is not a court of aesthetics but, to the lay person, the representations of the proposed building shown in the exhibits impressed as reflecting design elements which were at least interesting, in some respects novel and, certainly, attractive to the untrained eye. Even the western part of the structure, which is mostly blank wall, showed interesting mixtures of materials, patterns, textures and colours. It is unclear, of course, what weight or relevance this aspect of the matter had when Council came to make its decision. Certainly, the fact senior and experienced architects held different views means that, if Council concluded a want of architectural merit, that decision could never be described as eccentric, unreasonable or demonstrably wrong[12]. This Court is, nevertheless, hearing the matter anew and the impression and effect described earlier mean it is impossible to avoid the conclusion that a fair application of Chapter 10.1 would permit the proposal to attract a measurable bonus for this element.

[25] The basic plot ratio described in the Table in the Local Area Plan Code is 4 to 1. As presently designed, the building has a ratio of 4.56 to 1. Some bonus ought fairly be attracted under planning policy 18 because of the amalgamation of two sites and the question is whether or not additional bonuses have the effect of extinguishing any excess. When a development meets, to a marked degree, the 'innovative qualities' identified in Chapter 10.1 and, in words used elsewhere in that chapter ... 'promises to deliver something more than what the market currently demands' (as a comparison with other high rise buildings in the Surfers Paradise region persuasively showed), the unavoidable conclusion must, here, be that the proposal ought have the benefit of substantial bonuses, to the point where it does meet the relevant performance criteria.

[26] That is not the end, however, of this aspect of the matter. Parts of the Local Area Plan Code (PCs 2, 6 and 11) and the High Rise Code (PC 1) are directed to the important question of setbacks from public and private and boundaries. In their terms, these codes emphasise that new structures should comply with the 'function of the precinct', its 'streetscape character', and not have any 'adverse impact on neighbouring sites'. AS relevant to these PCs look for a six metre frontage setback for all levels of a building, with side and rear setbacks of at least two metres for its lower parts, and a 7.5 m setback above the second storey. According to the definition of 'frontage' contained in the scheme this building effectively faces Frederick Street, where actual setbacks vary between four and something just over six metres. On Garfield Terrace there is a setback (after the proposed two metre road-widening) of three metres to the outermost balcony projections, and four metres to the main wall alignment. On the western side the minimum setback is 3.7 m, rising in the north western corner to 5.5.

[27] A vivid attack was mounted in respect of these shortfalls which, it was said, meant the proposal became inappropriate to the character of the precinct and the 'streetscape' and visually intrusive and 'bulky'. That was not the impression conveyed, however, by some photo montages of the proposal[13] which made it clear that the building, within these setbacks, would not be discordant with existing nearby structures (and associated streetscape) in what is already an intensively developed high rise residential precinct. Further, the intruding balconies on Frederick Street present as partially transparent, lightweight structures, extinguishing or at least ameliorating the practical effects of intrusion. On the western side the setback exceeds the AS up to the seventh level. The setback on Garfield Terrace appears to be at least consistent with that of the buildings to the immediate east, and north, and does not for that reason appear to compromise the character of this intersection. A thoughtful landscaping scheme (discussed later) will further reduce the effects of any intrusions.

[28] Mr O'Brien, an architect and landscape architect, undertook calculations which led him to conclude that the limited dimensions of the building meant it would not present as bulky and visually intrusive, a conclusion reinforced by the depictions of the structure shown in Exhibit 8A. Mr Storey, the Town Planner called by the appellant, was of the view that the design successfully integrated the podium with the footpath and landscaping, in a way which achieved a high standard of visual amenity, so that the site coverage generated by the podium had a negligible impact on the visual bulk of the structure and would not detract from the character of the streetscape. Both conclusions accord with the impression formed from viewing projections of the design and indicate that notwithstanding exceedance of the AS, the proposal meets these PCs.

[29] These conclusions mean that the concerns to which the PCs are directed do not arise, or are effectively extinguished. Moreover, in terms of PC 11 they are integral to a proposed structure with a frontage design which does contribute to an interesting street perspective and the visual amenity of Surfers Paradise. The complaint that PC 2 is breached by claimed adverse impacts on the dwelling to the immediate west in Frederick Street must be considered in the context of the primary focus of the LAP for this district, which is on high-rise buildings. Nor am I persuaded that the design fails to provide building setbacks in accordance with the 'function of the precinct', required by PC 6. The buildings across Garfield Terrace and Frederick Street, to the east and north, appear to have similar (or lesser) setbacks. In the result, the alternative solutions proffered by the appellant satisfactorily meet those PCs.

[30] As to landscaping, Council's case is founded on a requirement that in Precinct 2 of the LAP buildings should be '... sited amidst lush sub-tropical grounds with minimal hard stand areas'[14]. PC 11 of the High Rise Code requires landscaping on frontages of sites which enhance the streetscape and contribute to the desired character of the area. PC 21 of the Local Area Code looks to ensuring '... an attractive outlook is presented to public streets, particularly major roads which serve as gateway routes into Surfers Paradise'. Debate focussed particularly on the planting on Garfield Terrace, where the appellant proposes an extensive area of 'podium' planting and replacement of the existing Norfolk Pines. The evidence of Mr O'Brien was persuasive this would be effective, attractive and, within certain practical limitations, convey a sub-tropical character.

[31] Those limitations relate to scale - the nub, of course, of Council's argument. But they must also be considered in light of the considerable air of unreality that attaches to the aspiration that these buildings stand within 'lush sub-tropical grounds'. First, vegetation of that type is quite alien to that which would naturally occur here. Second, it was apparent on inspection that it is only very rarely achieved and, in the case of recent local buildings, more honoured in the breach than the observance. As Mr O'Brien said, and inspection confirmed:

... the memorable aspects of the character of the surrounding area are primarily determined by the built form (rather than the topographical or landscape elements), and by the beachside location[15].

[32] The podium level planting is relatively low but will nevertheless serve to enhance the streetscape. These conclusions compel, then, a finding that the landscaping component satisfies the relevant PCs albeit in a manner different from the AS.

[33] The question of communal open space and the AS to PC 22 of the High Rise Code was, notwithstanding the expert's agreement that the revised proposal incorporates sufficient communal open space at podium level to cater for the resident's recreation needs, the subject of an argument from Council that the apartments contain a 'media' room which does not, for the purposes of the AS, count as a bedroom; but, because of the ease with which it might be converted to that purpose, should be included as a facility of that kind. While the appellant's planner Mr Storey conceded a risk of conversion existed, both he and the respondent's town planning expert Mr Reynolds agreed the matter could be addressed by appropriate conditions.

[34] It must also be said that Council's apparent sensitivity about the issue appeared exaggerated. The media rooms are set up and constructed for that purpose. These are units of a very high standard and, it may be expected, will be expensive. When cross-examined, Mr Storey was able to stipulate conditions which would significantly reduce this already nebulous risk. There is no convincing basis for including them in calculations relating to the AS for the relevant PC.

[35] Otherwise, Mr Storey's evidence about the amount, nature and features of the proposed communal areas establish satisfactory compliance with PC 22.

[36] While Mr Storey's initial evidence about shadow impacts was shown to contain some errors I was not convinced he was unable to establish compliance with the AS to PC 19. To the south of the proposal the principal effect will be on the tennis court of the high rise development there with impacts which are unsurprising. The notion that non-compliance with PC directed to issues of this kind, in an area categorised for large high-rise buildings, is for obvious reasons both surprising and barely tenable.

[37] Finally, consonant with what impressed as Council's energetic efforts to raise objections to this relatively unexceptional proposal, considerable time was devoted to poor existing specimens of Norfolk pine trees very close to the road edge in Garfield Terrace, near the rear of the site. Nothing in the planning scheme requires their retention and the evidence showed that, if necessary, they could be readily replaced with mature specimens. The difficulty with their preservation relates to the basement space of the proposed development which will impede upon their root systems. The appellant's experts proposed substituting with them with another, not dissimilar, variety.

[38] While Mr O'Brien said they were 'iconic' elements of the landscape around Surfers Paradise other evidence from an arborist, Mr Young, showed they are in relatively poor condition already. Their loss would offend, it was suggested, DEO SOC 1 which calls up the '... establishment, conversation and enhancement of local character and the promotion of a distinctive local identity and sense of place for the various communities of Gold Coast City'.

[39] Mr O'Brien's concession was qualified with the observation that the surrounding area does not exhibit a lush sub-tropical planning appearance, as inspection confirmed. (As an aside it is difficult to see, with respect, how an entirely alien tree - while prevalent on beach fronts on the Gold Coast - could ever qualify as 'iconic'.) Mr Young is of the view that continual necessary pruning and road widening will add further stress to the trees and accelerate their decline. Replacement with Cook Island Pines impressed as a practical solution which was both sensible, and merciful, and would do little if any harm in terms of the local communities alleged reliance upon these 'icons'; or, compromise the DEOs.

[40] This analysis establishes that proper application of the relevant Codes, read in the correct way, would have led to the conclusion that compliance has been achieved or readily can be, with appropriate conditions.

[41] Some other matters arose during the appeal hearing. Geo-technical evidence established the basements could be constructed in a manner that would not require access to or the use of adjoining land. It was agreed an appropriate condition could be imposed to require that construction not involve underpinning across site boundaries.

[42] An issue originally raised concerned PC11 of the parking code. That has since been resolved by moving the driveway to the western end of the Frederick Street frontage. In the result, there is, however, some interruption of previously proposed methods to deal with refuse storage. Mr Viney, a traffic expert, had some criticisms of the proposed methods of waste collection which involved leaving bins on the road or footpath as, the evidence shows, appears to happen in other nearby high rise developments. PC 38 of the Local Area Code requires that adequate facilities for servicing the development with a refuse disposal service should be provided and it was said, in the submissions for Council, that a failure to meet the AS for this PC meant the proposal should be refused.

[43] Refusal on this basis would be specious. Space can be provided for the bins on site, and they can be taken out for collection when necessary. Although this might inhibit the use of industrial bins, the matter is plainly soluble in a practical way, through conditions which meet the limited and very general requirements of PC 38.

[44] The applicant also proposes that movement between the upper and lower car park basements be affected by use of a mechanical car lift. The evidence of the appellant's traffic expert, Mr Healy, was persuasive that these devices are well known and in use in Brisbane (in, for example, a three level basement in a residential building in the inner city). Mr Viney fairly acknowledged that an improvement of overall basement design and the retention of the lift would not produce an unsatisfactory result. Again, a considerable amount of evidence addressed the size and layout of parking spaces in the car park basement when, as was always plain, the proposal could be amended, and made the subject of conditions in a way which meets the planning schemes provisions for minimum parking requirements.

[45] Council's apparently exhaustive efforts to find impediments to this proposal, notwithstanding the advice of its own staff about the value and benefit of the development, mean it is necessary to make a finding that the proposal does not compromise DEO SOC 5 which requires that development achieve:

... the maintenance of residential amenity through the minimisation of any environmental harm or adverse social impacts occurring from the construction and operation of commercial, community, tourism, industrial and extractive industry activities.

As the detailed findings already made illustrate, the appellant's development not only achieves that end, but may fairly be said to have a good prospect of enhancing and improving local character, amenity and identity.

[46] The appeal should be allowed and the matter adjourned to a date convenient to the parties for the resolution of necessary conditions.

[6] Chapter 2, Div 1 Pt 7: Ex 9, pg 58 and following

[7] SDW Projects v Gold Coast (SUPRA) at para [47]

[9] Per McHugh, Gummow, Kirby and Hayne JJ, at 384

[11] Spondor Pty Ltd v Maroochy [2005] QPELR 299

[12] See, eg, the decision of Robin QC, DCJ in Mackay Conservation Group v Mackay City Council [2005] QPEC 94; [2006] QPELR 209 at 237