Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5

[3] Essentially, the appellant submits that there are a number of relevant matters which justify approving the proposed development and in particular it points to an absence of adverse impacts should the appeal be successful. Conversely the respondent submits that approving the proposed development would significantly cut across the centres strategy in its planning scheme, the Gold Coast City Plan ("the planning scheme") which only commenced on 2 February 2016.[2]

[4] The site is located on the corner of Ferry Road and Cotlew Street, Southport. The vacant portion of the site which is the subject of the development application has an area of 3,025m2 and has a frontage to Cotlew Street. The site supports a number of commercial uses including a service station, food outlets and a combined liquor showroom and tavern building.[3] Ferry Road is a State Controlled Road and a major north-south transport corridor. Cotlew Street is orientated east-west and connects with Ferry Road adjacent to the site. There are multiple lanes of traffic in the vicinity of the site and it is separated from nearby residential development by the road network and a canal. There are numerous showroom uses in the vicinity of the site.[4]

[5] The site is within the Mixed use zone - Fringe business precinct. As the proposed office exceeds a gross floor area of 200m2, the proposed development is impact assessable pursuant to the planning scheme.[5] It is not located within a designated centre pursuant to the planning scheme. Public notification resulted in eight properly made submissions, all of which supported the proposed development.[6]

[6] As the development application required impact assessment and the planning scheme contains the relevant assessment benchmarks, the court, to the extent of the disputed issues, must assess the development application against the planning scheme in effect at the time the development application was properly made.[7] However, as the development application is a change application, other than a minor change to the development approval, the assessment is carried out "only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval".[8] Essentially, on the facts before me this means that, in circumstances where no issue is taken with the slight increase in the number of parking spaces to be provided and the minor design changes, the assessment is undertaken in the context of the change of use of the proposed building to an office. Significantly pursuant to s 45(5)(b) of the Planning Act ("PA"), the assessment of the development of application "may be carried out against, or having regard to, any other relevant matter, other than the person's personal circumstances, financial or otherwise".

[7] The appellant must establish that the appeal should be upheld.[9] The appeal is by way of hearing anew.[10]

[8] I wish to say something about the scope of what is contemplated by the second permissive basis for assessment of the development application set out in s 45(5)(b) of the PA given its significance in this appeal.

[9] In Wol Projects Pty Ltd v Gold Coast City Council[11] I made the observation that the assessment undertaken by the court in determining an appeal under the PA is less constrained than it was pursuant to the Sustainable Planning Act 2009 ("SPA"). Pursuant to s 326 of SPA the decision of the assessment manager (the court in an appeal) was required to not conflict with a relevant instrument, which included a planning scheme, unless there were "sufficient grounds to justify the decision despite the conflict".[12] The term "grounds" was defined to mean matters of public interest and to expressly exclude the personal circumstances of an applicant, owner or interested party.[13] Unsurprisingly in Bell v Brisbane City Council & Ors McMurdo JA observed that:

"...a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land..."[14]

[10] The legislative approach of expressly according paramountcy to statutory planning controls appears to have begun with certain amendments to the Local Government (Planning and Environment) Act 1990 ("PEA") which in identical terms each stated that:

"The local government must refuse to approve the application if -

(a) the application conflicts with any relevant strategic plan or development control plan; and

(b) there are not sufficient planning grounds to justify approving the application despite the conflict."[15]

[11] The concept evolved further in the Integrated Planning Act 1997 ("IPA") where ultimately it provided that an assessment manager's decision must not conflict with an applicable code or, in the case of impact assessment, the planning scheme, unless there were sufficient grounds to justify the decision despite the conflict.[16] Initially the term "planning grounds" was used in the context of justifying the decision despite the conflict for decisions requiring impact assessment but the term was expanded in the way subsequently adopted in SPA with the identical definition "grounds".[17] The fact that the current phrase in the PA "other relevant matters" contemplates matters of public rather than personal interest is confirmed by the Explanatory Note to the Planning Bill 2015 where it is stated:

"In other words it is intended that any such matters be matters of public, not private interest, given that the planning and development assessment system is generally intended to serve the public interest."[18]

[12] Accordingly, there is a consistency of approach in terms of what are relevant considerations from the perspective of the assessment manager. What is different, is that now the opportunity to consider matters of public interest outside of what is expressed in the relevant planning controls is intended to occur as part of the assessment of the development application itself and not as a prescriptive requirement at the point the assessment manager is making the decision, which is what occurred in each of the provisions noted above pursuant to the PEA, IPA and SPA. Under the PA it is not necessary for the assessment manager to have firstly found a conflict with a planning control to then, in a limited way, consider a relevant matter as defined in the PA. As a consequence the assessment undertaken is much more fluid and something which may not be a relevant matter in one sense, as it comes within "a person's personal circumstances, financial or otherwise", may become one in another sense as it may, for example, involve a question of public interest in terms of its impacts or lack of impacts.

[13] Accordingly, pursuant to the regime in the PA there is much more scope for a consideration of the site specific benefits of a proposed development in assessing a development application. This in turn leads to greater scope for the use of expert evidence in the assessment process. It allows for evidence about the benefits of a proposed development as part of the assessment undertaken by the court in the exercise of its discretion in hearing and determining the appeal. While a relevant matter is only capable of being considered in a permissive, not mandatory way, it may be assessed in a way unconstrained by the previous requirement that consideration of such matters not occur until the decision making stage and then only in the context of a conflict with relevant planning controls.

[14] The disputed issues narrowed considerably during the course of the hearing.[19] Essentially, while the appellant acknowledges inconsistencies with the Mixed use zone code because of the size of the proposed office, it submits that the inconsistencies are minor and do not warrant refusal of the proposed development. The respondent submits that the proposed development constitutes out of centre development which is fundamentally inconsistent with its centres strategy evident in the planning scheme. The appellant also points to relevant matters which it says warrant approval of the proposed development being planning need, the efficient use of land, the absence of adverse impacts as a consequence of proposed development and the absence of adverse submissions following public notification of it.

[15] One of the themes in the strategic framework of the planning scheme is found at s 3.4, making modern centres. Section 3.4.1 lists the strategic outcomes:

(1) Centres are central locations for mixed use economic activity and community facilities integrated within a residential population. Many people choose to live in or close to centres for their liveliness and the convenience of going about their daily activities. They are connected by the city's public and active transport networks and their land is used efficiently.

(4) The viability of the centres network is maximised by preventing out-of-centre development and avoiding incompatible uses within centres.

(5) Mixed use centres are compact, pedestrian-orientated and vibrant areas with major concentrations of business, employment, community, cultural, retail and residential uses to support the vision of a world-class city. They support the greatest intensity and range of activity in the city, including major international events.

[16] The strategy evident above is continued in the provisions of the strategic framework which address the theme of strengthening and diversifying the economy.[20] Significantly, in s 3.5.2(6) the specific outcomes for the fringe business precinct which expressly contemplate showrooms but not large offices, are set out in the following terms:

"(6) The fringe business precinct occurs in business areas and provides land for high quality showrooms and bulky goods outlets and a range of service and low-impact industry uses. Buildings in this precinct utilise a distinctive urban design and clearly address streets and public areas. Buildings are placed close to street frontages with car parking either behind or beside buildings. Residential uses do not compromise the primary function of these areas."

[17] As noted above the site is in the Mixed use zone - Fringe business precinct. The Mixed use zone code therefore applies to the site and relevantly provides:

(1) The purpose of the Mixed use zone code is to provide for a mix of activities that may include business, retail, residential, tourist accommodation and associated services, service industry and low impact industrial uses.

(2) The purpose of the code will be achieved through the following overall outcomes:

(i) includes a mix of uses such as convenience retail, residential and low key commercial and service industry that are not easily accommodated in mixed use centres and specialist centres and specific to the role and function of the individual area;

(3) The purpose of the Fringe business precinct will be achieved through the following additional overall outcomes:

(i) consist mainly of high quality showrooms, bulky goods retailing, service and low-impact industry uses and outdoor sales yards that are easily accessible by a wide catchment of consumers;

(iii) for shops and offices are very small tenancies that service only the immediate area;

(i) a mix of outdoor commercial activities, bulk retailing, service and low-impact industry and smaller commercial tenancies that are visually attractive, utilise a distinctive urban design and clearly address streets and public areas."

Tenancy sizes for shops and office land uses are limited to very small tenancies that service only the immediate locality.

GFA of tenancies for the following uses does not exceed:

[18] Finally, Table 6.2.19-1 relevantly provides:

[19] The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms:

"[52] The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:[21]

'[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole."

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all of the statutory provisions.'...

[56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes." [22]

[20] While I accept the evidence of Mr Duane, the economist who gave evidence on behalf of the respondent, that the proposed development "even if viewed as out of centre development does not threaten the viability of surrounding higher order centres",[23] I also accept the qualification he makes that it has "the potential to impact the orderly development" of such centres.[24] I accept the evidence of Mr Perkins, the planner who gave evidence on behalf of the respondent, that:

"In my experience it is often the case that individual proposals, by themselves, do not have a materially adverse impact on other places. However, planning is concerned with providing a policy framework within which many, often small, decisions are intended to cumulatively contribute to a desired outcome."[25]

[21] While noting that bus routes 747 and 731 run along Ferry Road, Mr Perkins nonetheless observed that the site "does not enjoy a particularly high level of service by public transport, from the perspective of office-based commuters."[26] Mr Perkins further stated:

"Accessibility is therefore reliant to a significant degree on private vehicles, which is not a desirable situation for a large office-based commuter work force such as would occupy the proposed development. Access to more frequent and diverse public transport services (and support for public transport investment) is one of the major reasons for consolidating larger offices in centres."[27]

[22] It is therefore clear to me that the proposed development is inconsistent with the centres strategy running through the planning scheme which seeks the co-location of offices with other complementary uses and appropriate public transport networks. The site lies outside such a centre in circumstances where offices are only contemplated in the Mixed use zone code to the extent they are "very small tenancies that service only the immediate area" and pursuant to PO14 are limited to "very small tenancies that service only the immediate locality". [28] The corresponding Acceptable outcome limits an office tenancy to no more than 200m2.

[23] It is submitted by the appellant that offices are clearly contemplated within the Mixed use zone and therefore on the site, and that the purported limitation that an office only serve the immediate area or immediate locality is meaningless and should not be given any effect. This is particularly so, it is submitted, when one has regard to the location of the site and the extensive road network isolating it from any accompanying pockets of residential development. It is submitted that these limitations "are not objectively feasible and practically impossible to be implemented from a town planning perspective".[29] In these circumstances it is submitted that the noncompliance is minor. I do not accept this submission. When regard is had to the applicable principles for the construction of planning documents set out in Zappala and quoted above it is clear that the attempts to limit the size of offices in the Mixed use zone are in harmony with the overall planning strategy that large offices such as the proposed development are intended to be located in centres where they can be appropriately co-located with other complimentary uses and public transport infrastructure. The relevant provisions of the Mixed use zone code which address office size are intended to make it clear that only very small offices, unlike the proposed development, are contemplated for the site.

[24] Accordingly, the proposed development presents out of centre development which is inconsistent with the centres strategy running through the planning scheme and evident in the Mixed use zone code itself.

[25] The appellant then points to relevant matters which it submits warrant an approval of the proposed development.

[26] The first of the relevant matters relied upon by the appellant as supportive of the proposed development is the planning need. The concept of planning need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor:

"Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community... Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met..."[30]

Recently in Bell v Brisbane City Council & Ors, McMurdo JA observed that the question to be asked is "not whether the development would satisfy community and economic needs; it is whether there is a need for this development". [31]

[27] The appellant asserts that there is a need for the proposed development, featuring a large office at ground level with significant parking which is not being met in the centres designated in the planning scheme. In support of this argument the appellant called Mr Langley a representative of PICA Group which is a property and financial services group of companies. PICA Group allegedly made a commitment to lease the entirety of the proposed development because it met its needs.[32] Under cross-examination however Mr Langley conceded that the particular characteristics of the proposed development including those set out above were just a preference and that another configuration which did not result in the entirety of the office being on the ground floor would also be adequate.[33] Mr Langley also conceded that the site was the only undeveloped site PICA Group had looked at,[34] and that a similarly designed office building in one of the centres designated in the planning scheme would equally meet the preferences of PICA Group in terms of future office space.[35]

[28] In their joint report the economic experts Mr Leyshon and Mr Duane agreed that it was "inherently difficult to determine the level of demand" for the proposed development.[36] In his individual statement of evidence Mr Duane also identified a number of sites within centres designated in the planning scheme where the proposed development could be accommodated, including a greenfield site at 34 Campus Crescent, Robina.[37] It was also demonstrated to me that the office requirements of PICA Group could be accommodated within a new building which is proposed at 26 Lawson Street Southport, which is within a designated centre and only a short distance from the site.[38]

[29] In the circumstances the appellant has failed to demonstrate a latent unsatisfied demand for the proposed development which is not being adequately met within the designated centres in the planning scheme. Accordingly, planning need is not a relevant matter to be accorded weight in assessing the proposed development against the planning scheme.

[30] The next relevant matter relied upon by the appellant is that the proposed development will result in an efficient use of the site in circumstances where there is no demand for showrooms but a demand for an office. In support of this submission the appellant called Mr Gayler the National Property Manager of the appellant. He gave evidence that after obtaining the development approval for part of the site for showrooms, the appellant began marketing it for this use in about April 2016.[39] Mr Gayler was very vague about the details of the marketing process, however it is clear that a tentative agreement was reached with a national showroom retailer to lease the whole of the proposed showroom building.[40] Ultimately this agreement did not proceed and four months later the PICA Group entered into the agreement referred to above, leading to the development application.[41] In circumstances where the area surrounding the site contains numerous showrooms both with and without frontage to Ferry Road, I simply cannot accept that the vague evidence of Mr Gayler establishes that there is no demand for showrooms on the site. On the facts before me the site can be used for showrooms in conformity with its designation in the planning scheme and there is no merit in the argument that approval of the proposed development is warranted to ensure an efficient use of the site.

[31] The next relevant matter relied upon by the appellant is that the proposed development will not cause any adverse economic or amenity impacts and it will not have an adverse impact on the hierarchy of the centres in the planning scheme. Although this is clearly a relevant matter that may be considered in the assessment of the proposed development, the significant compromise of the centres strategy in the planning scheme, which is still in its infancy, is such that this submission, while being relevant, is not at all persuasive.

[32] The final relevant matter relied upon by the appellant is that there were no adverse submissions to the proposed development, however given the extreme conflict with the centres strategy underpinning the planning scheme, little weight should be given to this submission.

[33] The proposed development is in significant conflict with the centres strategy evident in the planning scheme which only commenced on 2 February 2016. For this strategy to be given meaningful effect it is necessary that large offices such as that contemplated by the proposed development locate within the centres which are designated as appropriate locations for them. Offices of this size should be co-located with appropriate public transport infrastructure and other uses. Conversely, in exercising the planning discretion of the court in assessing the development application, any relevant matters such as an absence of adverse impacts or adverse submissions are not sufficiently persuasive to justify a significant departure from this clear planning strategy in the planning scheme.

[2] Exhibit 2, part C, p 1.

[7] Planning Act 2016 s 45; Planning and Environment Court Act 2016 s 46.

[8] Planning Act 2016 s 82(4).

[9] Planning and Environment Court Act 2016 s 45.

[10] Ibid s 43.

[11] [2018] QPEC 48 at [10].

[14] [2018] QCA 84 at [66].

[15] PEA s 4.4(5A), s 4.7(5A) and s 4.13(5A), inserted by Act No. 37 of 1992.

[17] The assessment manager's decision also had to not compromise the desired environmental outcomes for the planning scheme area: s 5.3.14(2)(b).

[20] 3.5.1(2)(5) and 3.5.2.1(3) and (6).

[21] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381.

[22] [2014] QCA 147; [2014] QPELR 686 at 698 [52].

[29] Written submissions on behalf of the appellant, para 78.

[30] [2003] QPEC 2; [2003] QPELR 414 at 418 [21].

[31] [2018] QCA 84 at [43].