GC1st Pty Ltd v Council of the City of Gold Coast & Anor [2025] QPEC 26

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

Arksmead Pty Ltd v Gold Coast City Council & Ors [2000] QPELR 285

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793

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

Broad v Brisbane City Council & Baptist Union (1986) 2 Qd. R. 317

Murphy v Moreton Bay Regional Council & Anor; Australia National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

S & S No.4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42

Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor [2024] QPEC 44

Trinity Park Investments Pty Ltd v Cairns Regional Council Ors; Dexis Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309

Planning Act 2016 (Qld), s 45, s 60

Planning and Environment Court Act 2016 (Qld), s 43, 45, 46

Planning Regulation 2017

E J Morzone KC & D C Whitehouse for the Co-respondent

• [1] This appeal is against the respondent's refusal of an application for a development permit for a material change of use for rooming accommodation (student accommodation) at 99 Golden Four Drive, Bilinga on the Gold Coast.
• [2] The proposal is for student accommodation near the Southern Cross University (SCU) Gold Coast campus to be provided in a 12-storey building with a residential density of one bed per 5.8m². It is impact assessable.
• [3] The land is within the Medium Density Residential Zone (MDRZ) under the Gold Coast City Plan (City Plan), in which "rooming accommodation" is referred to, e.g. s 6.2.2.2(2)(a)(iii). It is subject to a building height overlay, in an area of a 23-metre height restriction, and is also in the residential density overlay, the RD6 category.
• [4] To seek approval, the appellant sought to engage the height "uplift provision" in the City Plan, s 3.3.2.1(9). Increases in building height up to a maximum of 50 per cent above the applicable height restriction, which is what this proposal seeks, may occur where certain prescribed outcomes are satisfied.
• [5] After refusal of the application, there were negotiations between the appellant and the respondent resulting in permission of minor changes to the application; consequently, approval is no longer resisted by the respondent. Thus, the parties contending for refusal are the co-respondents by election.
• [6] Broadly, the co-respondents' arguments focus on whether, having regard to the density and built form of the proposal, it achieves the required outcomes at s 3.3.2.1(9)(a) and (b) of the uplift provision together with some outcomes of the Medium Density Residential Zone Code (MDRZ Code). It is also argued that the proposal is not consistent with reasonable community expectations.

• [7] The appellant relied on the expert witnesses, all of whom supported the proposal. This included town planners, Mr Perkins and Mr Mewing; the visual amenity experts, Mr Butcher and Dr McGowan; architects, Mr Greenaway and Mr Richards; and the economic need expert, Mr Duane. The co-respondents did not call any expert witnesses in the appeal and their case was largely advanced through cross-examination of the other parties' experts and submissions, although there were statements from lay witnesses.

Brief overview of the evidence - Town planning

• [8] The town planners opine that the proposal complies with the Plan's requirements for building height uplift. The local area is transitioning towards its planned character of buildings consistent with the MDRZ including the opportunities for increased height pursuant to the Plan. Bilinga is not a quiet, low-key coastal retreat, rather part of the City's coastal tourism spine, close to the Coolangatta major centre and the airport. There is said to be a well-managed interface between the proposal and the locality, and it will have a relationship to and impact on nearby development which is acceptable, including the reasonable amenity expectations of nearby residents. It only adjoins other premises on two of its four sides; it is exposed to the Gold Coast Highway and a signalised intersection connecting Golden Four Drive with the Highway. It is highly visible but not in a visually sensitive location. It is said to be differentiated from, but harmonious with. other existing and approved buildings in the locality. The built form is described as appealing or pleasing. Importantly it offers housing choice and affordability. It is sympathetic to local character and scenic amenity.

• [9] The exposure and proximity to Golden Four Drive and the Gold Coast Highway is relevant to visual amenity. There are several existing and approved buildings along Golden Four Drive exceeding the height anticipated under the building height overlay. These are considered to sit comfortably within the streetscape and built form context of Golden Four Drive. Again, the height uplift provisions are considered by the experts to be met, considering the form and scale of the proposal. It is compatible with the character and sense of place of the local area. Dr McGowan opined that it would contribute a contextually responsive and attractive new building to the locality, on a visually prominent site with a strong visual connection to the access point to the airport and SCU.
• [10] The landscape architect, Mr Butcher, opined that the reasonable amenity expectations of nearby residents were not adversely impacted. There was no real problem with overlooking because the proposal does not feature balconies, and such screened communal open spaces as it does provide give very little opportunity to overlook adjoining properties. It is not overbearing. To the extent that it may overshadow nearby properties, this is unrelated to its density or size of bedrooms. Similarly, outlook from adjoining properties is not adversely impacted by the proposal's density or bedroom size. The degree of density does not have a substantial impact on the bulk, scale, form, and appearance of the proposal.

• [11] The central theme of the co-respondent's case was that the proposal breaches core planning policy as to density. The density is unacceptable and was found to be so by the Council at first. Further, the density proposed remains largely unchanged and thus the proposal does not meet the RD6 residential density requirements and overall outcomes of the MDRZ Code. The Code includes performance outcomes including PO5. This includes a quantitative benchmark rather than a qualitative solution and the maximum density is one bedroom per 33m² of site area. The proposal is much more intense than that measure. This lack of compliance with the density provisions of the MDRZ Code is significant and as the proposal is materially inconsistent with the forward planning policy established by the residential density overlay map, refusal of the development application is called for. The co-respondents also argued that the proposal - consequent on the density - has adverse amenity impacts, but these were somewhat intangible, as discussed below.

• [12] The site is broadly described above. It is a residential block on the corner of Johnston Street and Golden Four Drive at Bilinga with an area of 1,000m². The proposal is for vehicle access from Johnston Street, which intersects at its eastern end with Pacific Parade, which is on the beachfront at North Kirra. The North Kirra Life Saving Club is nearby. The local area includes a mix of building types and styles including detached dwellings, older two or three-storey unit buildings and some newer, higher density apartment buildings. There are some commercial and other uses including a nearby car rental business. There are 11 sites relatively close to the subject site where building heights above the 23-metre category on the building height overlay map have been built or approved. Of these, at least three are the same height in metres as this proposal (34.5 metres). It is about 650m from the SCU campus, across Golden Four Drive and the highway. It is near to the entry to the airport, again, across the highway.

Relevant principles as to determination of the appeal

• [13] The appeal is decided under the Planning Act 2016 ("PA") and the Planning and Environment Court Act 2016 ("PECA"). Section 43 of PECA provides that the appeal is a hearing anew and the appellant bears the onus of establishing that the appeal should be allowed (s 45(1)). The court is effectively in the place of the assessment manager (s 46(2)(a)).

• [14] As the proposal was impact assessable, under ss 45(5) and 60 of the PA, assessment is to be carried out against the assessment benchmarks in the City Plan together with any matters prescribed by regulation. Regard may be had to other "relevant matters" other than a person's personal circumstances, financial or otherwise (s 45(5)(b) PA).

• [15] The nature of the jurisdiction of this Court on appeal is a broad and flexible discretion where any non-compliance with the planning scheme (in this case the City Plan) has to be balanced against factors favouring approval: Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at [51]; Abeleda & Anor v Brisbane City Council [2022] 46 LGERA 90 at [53]; Trinity Park Investments Pty Ltd v Cairns Regional Council Ors; Dexis Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.
• [16] Brown J (as her Honour then was) said in Trinity Park at [180]:

"The process adopted by a decision maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision maker."

• [17] The planning scheme is important as an expression of the public interest; see e.g. Abeleda at [42]. However, underlining the broad and flexible nature of the discretion, blind adherence to a planning scheme is not appropriate and a degree of flexibility may sometimes better serve the public interest: see Murphy v Moreton Bay Regional Council & Anor; Australia National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [18].

• [18] The co-respondents submit that the City Plan establishes a forward planning policy to achieve modulations and variations in residential density throughout the city. This is done by establishing different residential zones (low density, medium density, and high density). The purpose and overall outcomes for each of the different residential zones distinguish between the intentions for each of them and implement the requirements of the planning regulation. Thus, it is said that the MDRZ is not intended to comprise the highest residential density; as the name suggests, it is intended to be of lower intensity than the higher density residential zone.
• [19] As a matter of construction, it is noted that the word "density" is used without the qualifying adjective "residential" in numerous parts of the Scheme, but the meaning is said to be the same. The MDRZ Code provides for other uses included rooming accommodation however it is said to be not intended that these be high density uses. Terms such as "small scale" services and facilities are referred to in the Code.
• [20] The residential density overlay map is referred to and, as outlined above, emphasis is placed on the density restriction which the proposal is said to vastly exceed.
• [21] By way of contrast, the co-respondents point to the Centre zone Code, overall outcome 2(f) of which contemplates density exceeding the residential density overlay map, subject to certain prescribed outcomes. It is argued that an analogous provision is not found in the MDRZ Code, and this is a strong indicator that the densities prescribed by the residential density overlay map are not intended to be exceeded within the MDRZ. The MDRZ Code does contemplate height uplift to 50% of the maximum height on the map, which this proposal is at the limit of. The co-respondents' submission on this point refers to S & S No.4 Pty Ltd v Council of the City of Gold Coast & Ors [2024] QPEC 42. Reference was made to paragraph [13], however perhaps [130] was intended. As the Court observed in that case at [67], despite the absolute terms of overall outcome (2)(d)(ii), the Building height overlay maps do not prescribe an inflexible standard for development proposed in the Centre zone; see 3.4.4.1(5) of the strategic framework. This is an opportunity to achieve greater building height in a mixed-use centre where a cumulative list of requirements is met (the uplift provision).
• [22] Overall Outcome 2(f) in relation to Residential density was discussed at [130], providing several outcomes to be satisfied. His Honour found that the relevant outcomes were satisfied; see [131]-[134]. As to the submission contrasting the prescribed outcomes for density exceedance with a lack thereof in the MDRZ Code, this is relevant, but this proposal must be assessed on its own merits and according to the parts of the City Plan which are engaged. The proposal in S & S, which was successful on appeal, was for a much higher building (58.8m and 18 storeys), in a different Zone which contemplated taller development.
• [23] More broadly, the co-respondents argue that the exceedance of the prescribed density is of such a high order - exceeding that of the highest density precinct - that the proposal is materially inconsistent with the forward planning policy expressed in the residential density overlay map and refusal is called for. The planning purpose in the relevant part of the Plan tends to locate higher density residential development near centres (which this, so it is argued, is not), with a wide range of consequent benefits.
• [24] It is submitted that the site is not within the high-rise coastal spine mentioned in the strategic framework. However, the respondent points out that the Plan may aim at such development near, not within, this area (Aesthete No. 15 Pty Ltd & Anor v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 18 at [289]- [290]). This is correct, in my respectful view.

• [25] The proposal is argued to have adverse impacts. The density is said to manifest, that is, become clear or evident, in the built form. A building compliant with the density benchmark would be smaller, thus this proposal is necessarily bulkier than the City Plan contemplates; and has concomitant adverse amenity impacts, although it is not clear to me that this is so. Reference is made to the intangible impact of the awareness of local residents of the use, contrasting with the "relaxed beach vibe" of Bilinga. This would have more weight if the site was on the beachfront or adjacent to it, rather than being more associated with Golden Four Drive and the highway. A nearby resident complains of the over densification of the area as unexpected and annoying, and is concerned at changes to the local identity, sense of place and amenity of the area. This is understandable, but the area is already significantly developed with high rise residential buildings of density discussed below, and the separate impacts of this proposal in that context are hard to quantify as unacceptable. As has been mentioned, it is an area in transition. The evidence as to the local area is summarised at [8]-[10] and [12] above. The statements of lay witnesses must be considered, however as in S & S, when considered in the context of the expert evidence and the public interest as expressed in the City Plan, they are not determinative.
• [26] The co-respondent also argues that student accommodation is not necessarily located near universities, citing examples in Brisbane and other features such as online learning. This may be so, however the proximity of this proposal to the university is nevertheless a positive feature. The university is a hub for learning, but also provides social connection for students and other facilities including for exercise and sport.
• [27] Reasonable community expectations are raised, as to density, built form, scale, and impacts on amenity. These expectations are said to favour refusal, as the non-compliances mentioned are significant. Again, the expert evidence as to reasonable community expectations as to amenity is mentioned above, particularly at [10]; it favours approval.

• [28] The respondent argues that the proposal does comply with assessment benchmarks including as to density. Density is a wider concept than mere bedrooms per square metre. The proposal is for density within that contemplated by the City Plan for the location. It has no unacceptable impacts on residential amenity and complies with the uplift provision. Mr Mewing, the town planner, said that density depends on a range of factors including the built form outcome, and how the development interfaces with adjoining developments and the street.
• [29] Non-compliance with the quantitative measure in the Residential Density Overlay Map is, in the Council's submission, not very significant. That measure is part of PO5 but is not part of the Overall Outcomes of the MDRZ Code or the Strategic Framework. Compliance with the purpose and overall outcomes or performance or acceptable outcomes is sufficient (s5.3.3(4) of the City Plan). The density in a mathematical sense, comparing the bedrooms to the site area, is about 5 square metres per occupant. Other residential (non-student accommodation) buildings in the area display ratios of 6.1, 7.8, and up to 9.1 square metres for equivalent calculations. The metric is thus argued to be not very determinative and in any case this proposal for student accommodation - which might be expected to be somewhat dense, as it deals with students who are not expected generally to be wealthy and have limited resources and expectations (many may only live there for 1-2 years) - is argued to be not significantly denser than some of the comparable nearby residential developments.
• [30] The respondent argued that the proposal complies with the planning intent of the relevant benchmarks as to density. It is within walking distance to the University, close to a neighbourhood centre in Bilinga, and food and drink outlets. Other facilities such as supermarkets are accessible by public transport. It is near to or within the high-rise coastal spine. The overall outcome in s 6.2.2.2(d)(ii) does not require the transition to higher intensity to be located exclusively within centres or the high-rise coastal spine, but rather, near to both (Aesthete No. 15 mentioned at [24] above, a case dealing with nearby land at Bilinga).
• [31] Rooming accommodation is expressly mentioned in the MDRZ Code, s 6.2.2.2 (a)(iii), providing it does not reduce potential for medium density residential dwellings nor detract from residential amenity of the area. Housing needs including affordability are relevant to form, scale and intensity; s 6.2.2.2(b)(iv). Thus, when read as a whole, in a Project Blue Sky sense (namely that the meaning of a provision in an instrument must be determined by reference to its language viewed as a whole; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71] on pp 381-2), the City Plan permits higher density outcomes, in this context.
• [32] In any case the respondent submits that the proposal is, in truth, medium density. The built form is consistent with other medium density residential development in the area, its style and density are common for student accommodation, and larger such facilities exist including in Brisbane. It thus complies with Overall Outcomes (2)(a)(i), (b), (b)(ii), (c)(i), and (d)(ii) of the MDRZ Code.

• [33] The respondent also argues that the co-respondent struggles to point to any real or tangible amenity impacts: traffic, noise, and pressure on infrastructure are all acceptable. The increased number of people in the local area is referred to by the co-respondents as impacting the intangible aspect of amenity; the feel of the place and the intrinsic awareness of the nearby residents of the development's existence. This concept arises in such cases as Broad v Brisbane City Council & Baptist Union (1986) 2 Qd. R. 317, including at pp. 324-6. As outlined above, there are lay witness statements which deal with subjective perceptions, but these are said by the respondent not to be consistent with the planning scheme intentions for the area and are thus of little weight.
• [34] In this context the nature of Bilinga as part of the City's coastal tourism spine, near Coolangatta and the airport, as opposed to a quiet, low-key coastal retreat is relevant, as opined by Mr Perkins in his town planning report. The expert evidence was that the proposal would not detract from the residential amenity of the locality because it is consistent with the apparent, height, bulk, and scale of other residential built forms in the area and achieves the relevant outcomes, as set out by Dr McGowan, Mr Greenaway, and Mr Butcher. It is relevant that Golden Four Drive is a more transport-oriented corridor, whereas Pacific Parade is of higher amenity with a foreshore setting. Mr Mewing and Mr Perkins agreed that the proposal did not conflict with the expected amenity of the area.

• [35] The respondent also submitted that the uplift criteria are met. There would be a reinforced local identity and sense of place and a well-managed interface with, relationship to, and impact on nearby development, including the reasonable amenity expectations of nearby residents (s 3.3.2.1(9)(a) and (b)). The planned and existing local identity are to be considered. The area is a medium density residential area near the beach, with a range of building heights and styles (Aesthete No. 15 at [131]). This is supported by the visual amenity and architecture experts.

• [36] As to relevant matters bearing on the planning discretion, the need for the development is said to be strong, on the uncontradicted evidence of Mr Duane.
• [37] There is a significant shortfall of student accommodation in the Gold Coast local government area, and none near the SCU campus, and the provision of student accommodation provides a benefit for students (cheaper, flexible accommodation near campus) and to the local community (by the freeing up of other rental accommodation). The development would contribute to housing choice and availability by providing a product that is not widely available on the Gold Coast, at an affordable price, and provide further residential dwellings needed in the City.
• [38] The compliance with the higher order uplift provision is important in that non-compliance with lower order provisions such as PO5 of the MDRZ Code would not normally result in refusal; the nature and extent of non-compliance with the City Plan is materially diminished in favour of approval (Bell Co Pty Ltd & Ors v Council of the City of Gold Coast & Anor [2022] QPEC 32 at [62]). Thus, if the uplift provision is satisfied, as the respondent submits it would be, the proposal should be approved.

• [39] The appellant submits that density of the development is not reflected in its bulk, scale, or outward appearance. As outlined above, it is similar in these terms to other approved and constructed residential developments in the locality. The unchallenged evidence of the Visual Amenity and Landscape Architecture experts demonstrates the architectural merits and suitability of the built form outcome, compliant with relevant provisions of the City Plan.
• [40] Further, the proposed density is reflective of the use: Rooming accommodation and particularly purpose-built student accommodation is different to multiple dwellings as it comprises comparatively more, and smaller individual rooms rather than a collection of bedrooms in multiple dwellings, typically resulting in higher density.
• [41] The site is ideal for the use because of its proximity to the University: it is the most proximate site in Bilinga to SCU. It is connected to urban facilities that support student accommodation, and other key infrastructure and features in the surrounding areas. It is well located for increased density. The proposal caters for a residential density which is commensurate with the form, scale and intensity of development sought by the City Plan and should be approved.
• [42] The appellant refers to agreement between the experts as to the bounds of the local area (or locality) relevant to the assessment; the existing attributes of the locality in terms of character and built form; the many approved, but not yet constructed, buildings in the locality; and the "planned outcomes" of City Plan and the "transition" it envisages. The relevant benchmarks are met. Reasonable amenity expectations are to be informed by the Planning Scheme and reasonableness (_Ackland Pastoral Co Pty Ltd v Rosalia Shire Council & Or_s [2007] QPEC 112; [2008] QPELR 342, p 348 at [40]) and are met in this case as the evidence establishes; again, see the evidentiary summary at [8]-[10] and [12] above.
• [43] The appellant submits that there is no problem with overlooking, particularly where it is a corner block with only two neighbours. The Golden Four Drive neighbour is a multiple dwelling with a parking area adjoining the site, whereas the Johnston St neighbouring property has its balcony and frontage facing in the direction of the beach, away from the site. The first six levels of the proposal provide setbacks which meet or exceed acceptable outcomes. There are no lower-level windows to be complained of. The design limits overlooking.
• [44] Overbearing is also not a problem, according to the expert evidence, given that it is not significantly greater than would be associated with a 23-metre building which would be within the height overlay map and not require an uplift. Similar observations to outlook are made by the experts Mr Butcher and Dr McGowan. The experts also agree any overshadowing would be minimal. None of these issues, such as they are, are impacted by density.
• [45] The appellant engages with the acceptable outcomes of the Code and submits that:

(a) The land use is expressly contemplated in the zone, as mentioned above. It delivers housing choice, does not reduce the supply of medium density residential dwellings, and does not detract from residential amenity;

(b) The housing form outcome is also met. The proposal has a "form, scale and intensity" appropriate for the zone, and this Bilinga locality. Its locational attributes are positive being near high frequency transport, within 650m of SCU, 400m of the nearest centre, and very close to the beach.

(c) As to character outcomes, OO(2)(c)(i) contemplates "higher intensity places" forming part of the character. It is true, as the experts acknowledge, that the proposal is not "medium rise", as is contemplated. However, this outcome must be read together with the Uplift Provision which allows building heights in this medium density residential zone to reach up to 34.5m. The development is therefore within the contemplated height. The level of amenity is appropriate to the intensity of the area, see OO(2)(c)(ii).

(d) The built form outcomes required by the MRDZ Code are complied with. OO(2)(d)(ii) requires built form to contribute to the transitioning density, and this proposal is acceptable, including for reasons advanced by the Council, see [29]-[32] above. It is near to centres and the high-rise coastal spine and is well serviced by public transport.

• [46] As to PO5, the appellant accepts the density is non-compliant but says this is not significant and does not warrant refusal. The Overall Outcomes are complied with; the underlying intent for density in the zone is achieved, see [45](d) above; the density is appropriate for student accommodation use; density metrics are exceeded in the MDRZ's including Bilinga; there are no adverse planning consequences; and the density helps address housing need and positive planning outcomes such as local vibrancy and utilisation of urban services.

• [47] The need is strong, see [36]-[38] above. There is increasing demand for student accommodation including specifically for SCU. The Australian student accommodation market is undersupplied, and the Gold Coast has an anticipated shortfall in purpose-built student accommodation of over 3,600 beds by 2027. There is a complete absence of student accommodation facilities around SCU. There is low supply of 1 bedroom or smaller dwellings in the study area. There is no current planning for student accommodation development as part of the Gold Coast Airport Master Plan or SCU's master planning report. In addition to these existing market conditions, Government policy is increasing the focus on not only the need for student accommodation, but for such accommodation that is safe and secure, and that does not crowd out residents in individual markets (see generally Exhibit 11, Mr Duane's report, pages 21-22, 32-34). Mr Duane's uncontradicted evidence should be accepted.

• [48] Reasonable community expectations are informed by the City Plan (representing as it does the public interest), existing development and properly made submissions, which raise concerns re: density. The appellant argues that the submissions, whilst genuinely made, relate to an earlier iteration of the proposed development; there is limited regard to the planned character for Bilinga as expressed in the City Plan, the identified transition, and the City Plan's contemplation of high-rise built form in Bilinga (as in S & S, discussed above). It is submitted that the proposal complies with the Plan. Density outcomes are routinely exceeded, including in this locality. For example, they are exceeded by the developments completed by the submitter Mr Smith and by the building the submitter Ms Power lives in (see generally Exhibit 8, the Joint Expert Report as to Town Planning including at p 33 and Exhibit 24).
• [49] It is thus argued that the submissions do not have proper regard for the nature of purpose-built student accommodation and the higher density outcome that typically attends such a use. Thus, the perceptions as expressed, it is submitted, do not attract significant weight in the exercise of the discretion. In my conclusion this is correct.

• [50] Need is dealt with above. The further submissions of the appellant include that the local characteristics of the site make it appropriate for the proposal and its proposed density; the existing infrastructure is sufficient; and it is a positive planning outcome, lacking any adverse impacts on traffic, noise, visual amenity or character. It is argued that the proposal's ability to meet an identified need without unacceptable amenity impacts is decisive in favour of approval; cf Arksmead Pty Ltd v Gold Coast City Council & Ors (2001) 1 Qd. R. 347 at p 357, para [13]; see Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor [2024] QPEC 44 at [5]. In my view this is such a case.

• [51] In my conclusion the appellant has discharged its onus. There is uncontradicted evidence of a demonstrated need for the proposal. The non-compliance referred to by the co-respondents is mainly focused on unacceptable density. My conclusion is that the density is acceptable; a flexible approach should be taken in the public interest. As the Council submits, the proposal is for density within that contemplated by the City Plan for the location. It has no unacceptable impacts on residential amenity and complies with the uplift provision. Compliance with the higher order uplift provision is a powerful factor in favour of approval. As the appellant submits, the site is appropriate for the proposal and its proposed density; the existing infrastructure is sufficient; and it is a positive planning outcome, lacking any adverse impacts on traffic, noise, visual amenity or character. The orders are that the appeal is allowed, the Council's refusal of the application is set aside, and approval granted. I will hear the parties as to directions for the resolution of appropriate conditions.