Main Beach Progress Association Incorporated & Ors v. Gold Coast City Council & JJ Foundation Pty Ltd [2008] QPEC 37 (20 June 2008)

[3] Main Beach is a well defined local area, contained by the Broadwater and the Spit in the north, the Gold Coast Highway to the west, the Nerang River and the narrow strip of land, known as Narrowneck, to the south, and the beach to the east. It lies at the northern end of the long coastal strip of the city, which extends south to Coolangatta.

[4] While there are a number of vehicular entry points to Main Beach, the subject site was fairly described by Mr Vann as lying at the "front door" of Main Beach. It is the first area of built form on the western side of Tedder Avenue as one leaves the Gold Coast Highway and passes Helen Park and the entry street signs which appear on either side of Tedder Avenue, at the southern end of the site.

[5] To the immediate north of the site lies a contained, low rise commercial strip, which runs along both sides of Tedder Avenue for three blocks (from the Tedder Avenue/Hughes Avenue intersection to the north to the Cronin Avenue/Tedder Avenue intersection to the south). The commercial strip offers a variety of facilities. Some operate at a local level, but the strip also features a large number of quality restaurant/cafes and what were described as "leisure retail" facilities, which have a broader function. While the architectural quality of the commercial buildings is variable (and in many cases underwhelming) there are good quality street level tenancies with good quality fitouts. The joint report of the town planners described it as a "highly developed main street" and a "known place or destination". It is a well known "eat street" and a place "to see and to be seen".

[6] The street system around the commercial strip features rear laneways, which separate the commercial strip from residential development on both the eastern and western sides of Tedder Avenue. There is no rear laneway behind the subject site. Development along Tedder Avenue otherwise (north of its intersection with Hughes Avenue and south of its intersection with Cronin Avenue) is residential in nature.

[7] The height and density of development in the Main Beach area varies. There is however, a stark contrast between the low rise nature of development to the west of Tedder Avenue (and on both sides within the commercial strip) and the high rise towers which visually dominate the residential areas to the east of Tedder Avenue. That contrast is apparent in photographs which appear in Mr Brown's report.[1]

[8] The issues in the appeal are set out in the "consolidated list of issues" which runs to 17 pages. It refers to many provisions of the voluminous and multi-tiered planning scheme. As I indicated in the course of submissions[2], I intend only to deal with the matters which emerged as the focus of the argument. It was not suggested that I should do otherwise. The matters of greatest controversy related to:

1 The commercial component of the mixed use building;

2 The form of the building, including with respect to height, density, bulk, scale and set backs;

5 Conflict / conformity with the planning scheme and the sufficiency of grounds to justify approval, in the event of conflict.

[9] The application required impact assessment. Accordingly, it was required to be assessed having regard to the planning scheme[3] and, by reason of s 3.5.14(2), the decision must not:

(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or

(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.

[10] The principles which apply to the interpretation of planning schemes are conveniently summarised in Westfield Management Pty Ltd v Pine Rivers Shire Council.[4] The consideration of the sufficiency of grounds, for the purposes of s 3.5.14(2)(b), involves an examination of the nature and extent of the conflict, a determination of whether approval can be justified on the basis of grounds which are relevant to the part of the application which is in conflict and, if not, a determination of whether approval is justified, on balance, by reason of the grounds in favour, considered as a whole.[5] That consideration does not have to be carried out in a rigid mechanical way.[6]

[11] The appeal must be decided on the basis of the laws and policies applying when the application was made, but weight may be given to new laws or policies. It was not suggested that there have been changes of any significance for present purposes.

[12] It was submitted, on behalf of the respondent and the co-respondent, that in dealing with the issues, I should place weight upon the Council's decision. I was also invited, by Mr Gallagher QC, for the co-respondent, to make adverse comments about the conduct of Mr Bruce Wilson, who is one of the appellants, and Mr Ron Clarke MBE, who was, and remains, the Mayor.

[13] The development application was made under cover of a letter dated 13 December 2005.[7] Public notification was conducted in August 2006. The applicant conducted a public consultation program. It seems that there were those who encouraged support for, or opposition to, the proposal. Many hundreds of submissions were received, both for and against the proposal. The submissions included a petition, proforma letters and postcards as well as individual letters. This suggests that the application was a matter of some interest and controversy.

[14] The appellants analysed the submissions[8] in order to demonstrate a preponderance of objections from those in the Main Beach area (even leaving to one side the "template" submissions opposing the application, about which the co-respondent raised issues, giving rise to suspicions as to the legitimacy of some). I am not prepared to attach much weight to that in the circumstances. It is difficult to know the extent to which even those who wrote individual letters of objection were influenced by others. In any event, what is more important than numbers alone is the validity of the contents of the objections, the more relevant aspects of which are now reflected in the issues in the appeal.

[15] It is evident that the application was also a matter of some controversy among the Councillors, and that Mr Wilson put his case to the Mayor via correspondence from his solicitor. The application was the subject of a report by Council officers which recommended approval of the application, subject to conditions. The Council's planning committee did not, at first, accept that recommendation and, instead, recommended refusal. The Council then deferred consideration of the matter, pending receipt of further advice. Mr Vann, a town planning consultant, was retained to provide that advice. His report, dated 24 November 2006, also recommended approval.

[16] As is apparent from the minutes of the Council meeting of 4 December[9], the Councillors were divided. On 28 November 2006, the Mayor moved a motion that the matter be deferred "to obtain legal opinion on the reasons for refusal identified at the Council meeting of 13 November 2006". That resolution was lost, by five votes to four. The Mayor subsequently moved a further resolution to refuse the application on nine grounds. That resolution was also lost, by five votes to four. Another Councillor then moved a resolution which recommended approval of the proposal, subject to conditions. That resolution was successful, also by five votes to four. The Committee's changed recommendation (to approve) was adopted by the Council at its meeting on 4 December 2006.

[17] Mr Wilson did not give evidence at the hearing, but an affidavit by his solicitor, Mr Nicholls, was admitted into evidence. Mr Nicholls was not required for cross examination. In his affidavit, Mr Nicholls deposed that, on 1 December 2006, on the instruction of Mr Wilson, he sent a letter to the Mayor. That letter, which ran to some 14 pages, set out the case for refusal of the development application. Mr Nicholls' firm has, on other occasions, acted for Mr Clarke in his personal capacity and for entities in which Mr Clarke has had a level of involvement, but did not then hold any active files on behalf of him, or any entity in which he had an active involvement. Mr Nicholls had not given professional advice to Mr Clarke since about 2002.

[18] On the day of the Council meeting, at which the application was approved, Mr Nicholls received an email from the Mayor. The subject of the email was described as:

"Urgent advice for Mayoral Minutes for Council coord 4 December 2006 re: Tedder Avenue (10 point motion)_V1.doc"

[19] The level of importance was recorded as "high". It stated as follows:

Thank you so much for the advice re: Tedder Avenue. Please be certain to invoice your time on that letter to me personally (I have an account with HG - see Bruce Humphrys). One other matter if you have the time. I intend to move the following motion on the Tedder Avenue application this afternoon. Is there any amendments. Changes, omissions or additions you would recommend that would help our argument should the matter go to appeal in the P&E Court? If so would you have the time to please list them (I would need them by 12.45pm as the meeting begins at 1pm)."

The attached proposed motion was for the application to be refused. Mr Nicholls responded to Mr Clarke's request by an email attaching a suggested amended 12 point resolution.

[20] Mr Nicholls deposed that, in sending the letter of 1 December 2006, he was acting for Mr Wilson and not for Mr Clarke. He was surprised by Mr Clarke's invitation to send him an account. Mr Nicholls did not take up the offer. His firm's fees for both the letter of 1 December and the email of 4 December were billed to Mr Wilson.

[21] The IPA provides for the IDAS system for making, processing, assessing and deciding development applications. That system provides for submissions to be made, in response to public notification. Mr Wilson had exercised that right and, as a consequence, obtained appeal rights. The IPA provides for the application to be assessed, under Division 2 of Part 5 of Chapter 3. In the case of impact assessment, s 3.5.5(2) requires assessment having regard to a number of things, which includes the common material which, in turn, includes the contents of submissions that have been accepted.[10] Once assessed, the application is decided under Division 3. Section 3.5.11(2) requires the decision to be "based on the assessments made under Division 2". The IPA therefore, provides for decisions which are based on an assessment of the development application, rather than other considerations.

[22] The content of the letter sent to the Mayor, on Mr Wilson's instructions, was not of a political character. Rather, it set out, at some length, reasons for coming to the "very clear" conclusion that:

"... there are compelling reasons for arguing that the Council, in the proper exercise of its discretion of its decision power under s 3.5.15 of the Integrated Planning Act 1997 (IPA), must refuse the application to develop a five storey mixed use building at 6-10 Tedder Avenue, Main Beach."

While sending correspondence of that kind to the Mayor might be unusual, I am not inclined to be critical of Mr Wilson for urging the merits of his position.

[23] I can understand the co-respondent's concern about the Mayor, being a member of the decision making body, offering to personally meet an objector's (Mr Wilson's) legal costs of correspondence. I am reluctant however, to record any criticism of the Mayor in that regard. He is not a party to the proceedings and has had no opportunity to answer the criticisms raised on behalf of the co-respondent. Further, it is unnecessary for me to make any adverse comment. It is from the Council's ultimate decision that this appeal is brought. Mr Lyons QC, for the appellants, did not seek to place any weight upon the Mayor's opposition to the proposal, or the split nature of the vote within the Council or, indeed, on the planning committee's initial recommendation to refuse the development application.

[24] The process ultimately followed by the Council was sound. In the face of controversy, the matter was referred to an external town planner for review. Both the planning committee and the Council ultimately followed the advice of the officers, supported by the opinion of an external consultant.

[25] I was urged, by the respondent and co-respondent, to place a deal of weight upon the Council's decision in the matter[11]. As Mr Lyons QC pointed out however, an appeal to this Court proceeds by way of a hearing anew[12]. The expert opinions expressed in the reports which were before the Council, concerned issues which have been the subject of close scrutiny in the context of this appeal (in which Mr Vann was called as a witness). Whatever weight be placed on the Council's decision, the court must ultimately reach its own conclusion, on the basis of the evidence before it.

[26] Criticism was also levelled against Mr Wilson in relation to the number of appellants who were included in the appeal and Mr Wilson's place, as the last mentioned of them. It emerged, in the course of the appeal, that Mr Wilson is the driving force behind this appeal and has provided the funding for it, but there is nothing untoward about that. Mr Wilson is an appellant and has made no secret of his opposition to this proposal. If decisions about the number of persons who became appellants and the positioning of Mr Wilson's name, at the end of that list, were designed to create an impression which camouflaged, disguised or minimised his involvement, then it has had no effect. I have not treated the case any differently than if Mr Wilson had been the sole appellant. Ultimately, what is determinative is the strength of the relative arguments, rather than the number or arrangement of the parties in the court heading.

[27] Impacts on visual amenity and character are considered later in these reasons. In addition to those impacts, it was contended that there would also be other impacts, particularly by reason of the noise and traffic.

[28] The potential noise impacts were examined by Mr Paul King (who was engaged by the co-respondent) and Mr Russell Brown (who was engaged by the appellants). They produced a 14 page joint report, separate appeal reports and also gave evidence at the hearing, but ultimately there was little difference in their opinions.

[29] Their joint report dealt with a range of measures to address the potential for noise but, in paragraph 37, it was acknowledged that:

"There are unlikely to be any fully satisfactory noise control measures which can be implemented to deal completely with the impact of the noise of patrons and vehicle movements. Instead, the focus of control should be on minimising the likelihood of occurrence. The most appropriate means of doing so are to:

(i) minimise the number of patrons by limiting the number of outdoor dining areas; and

(ii) actively encouraging the use of the underground car park associated with the new development."

The experts agreed on modified conditions, which they recommended be attached to any approval.

[30] A residual concern, was the prospect of an increase in on-street parking, should the onsite car parking not fully accommodate the patrons of the proposed development, or if a significant number of patrons decided to use on-street carparking in preference to the on-site spaces. These matters are addressed later in considering the evidence of the traffic engineers. If that were to occur, then there could be some potential impact upon amenity, particularly for the residents of Breaker Street, which is not currently affected by significant street parking. As Mr King pointed out[13] however, that street is the nearest to the Gold Coast highway and would be affected by highway traffic noise in any event. It is also across the road from a park, where noise can occur. Further, the behaviour of patrons of establishments of the kind likely to occupy the proposed development, would be expected to be less problematic than those associated with a night club or hotel, for example. While he acknowledged the potential for some impact upon amenity, if there was significant use of on-street parking, Mr King did not consider it to be overly significant.

[31] Similarly, Mr Brown spoke of the potential for increased street parking, and noise from people going to and from their cars, but described the potential for problems as "a fairly low potential" and added that "I agree it's not sufficient in and of itself ... to refuse the application, it's simply a consideration to bear in mind". He acknowledged that there was really no difference between he and Mr King.[14]

[32] I accept that the proposal would likely have some noise impact, but the level of impact is unlikely to be of such significance as would, of itself, warrant refusal of the application.

[33] Traffic issues were considered by Mr Beard, who was engaged by the co-respondent, and Mr Holland, who was engaged by the appellants. The relevant points of disagreement, at the time of Mr Holland's Response and Revised Traffic Report, were:

3 The Tedder Avenue/Gold Coast Highway intersection;

[34] It was only the impact on the operation of the Tedder Avenue/Gold Coast Highway intersection which Mr Holland then saw as a safety issue warranting refusal of the application. The other issues, while relevant, were not regarded by him as being so significant as to, of themselves, warrant refusal of the application.[15]

[35] The intersection issue became the subject of a further joint report of the traffic engineers, the result of which was the following agreement:[16]

"It is agreed that provided an after hours medical centre or the like is NOT operated within the development on the level above the retail level, and the intersection of the Gold Coast Highway and Tedder Avenue is upgraded as proposed by Mr Beard (a lengthening of the existing third southbound highway lane by 65m), then the impact of the proposed development on operation of the intersection of the Gold Coast Highway and Tedder Avenue is negligible and can be accepted."

[36] Accordingly, even on Mr Holland's approach, there is now no traffic issue which, of itself, would warrant refusal of the application, provided a condition were imposed to achieve the restriction in relation to an after hours medical centre. As to the other issues, which remain of relevance in an overall assessment (retaining the same numbering as above):

1. There was an attack upon the proposed refuse disposal arrangements. Changes made to those arrangements which would result in 11 plastic "wheelie bins" being placed outside the proposed development (in Breaker Street), for daily collection. I do not consider that would result in an unacceptable impact in traffic or amenity terms. The sight of wheelie bins, including multiple wheelie bins, is unattractive, but not uncommon. Mr King's evidence,[17] which I accept, was that there would not be an unacceptable noise impact from the collection of wheelie bins. Mr Holland raised the prospect of collection vehicles having to double park, if there were vehicles already parked on the street but, as Mr Beard pointed out, these types of hazards are an every day occurrence elsewhere in South East Queensland[18]. It is possible that an arrangement could be achieved that would render it unnecessary to place bins on the street[19] (although the acceptability of the refuse collection arrangements are not dependant on that).

2. Mr Beard proposed some amendments to the basement parking area, which were also supported by Mr Holland. Mr Holland was however, still critical of the proposed parking configuration, which he considered to be "user unfriendly"[20]. He thought it would cause difficulties which may cause some patrons to reject the car park, in favour of on-street car parking. In particular he was concerned that the length of cul de sac parking aisles would lead to patrons proceeding down the aisles, in search of a park, only to find that there was no space in which to park and inadequate space to turn around. There was a debate about the point from where the commencement of the cul de sac ought be measured. Mr Beard considered that the arrangements would be satisfactory, subject to some minor changes. I accept Mr Beard's evidence that the proposed car parking arrangements will, notwithstanding the matters raised by Mr Holland, be the most attractive in Tedder Avenue "by a country mile"[21] but, as he also acknowledged[22] there will always be people who prefer to park on the street. I do not regard the magnitude of the potential for patrons to prefer on-street carparking as likely to lead to an unacceptable impact in terms of traffic or amenity.

4. The arrangements for service vehicles assumes a loading zone in Tedder Avenue. Mr Holland thought that there might be problems associated with double parking if that space was occupied by vehicles which parked illegally. That is a possibility, but I do not consider that this risk, which is predicated on the assumption of illegal parking, should be a matter of significant weight. Mr Beard pointed out that the removal of driveways along the Tedder Avenue frontage will enable provision of more kerb-side space. I accept Mr Beard's opinion, as recorded in the joint report, that the on-street service vehicle provision would be acceptable in the circumstances.

5. It was conceded, in the written submissions on behalf of the appellants, that, in absence of an after hours medical centre on the first floor of the proposed development, the car parking provision is adequate, subject to one qualification. That qualification was a concern raised by Mr Holland about whether subsequent provision for secure parking for residents and their visitors would create a shortfall. That is a matter which, I am satisfied, can be dealt with by way of appropriate conditions. Mr Beard confirmed that no account had been taken of footpath dining, which should not be approved at this stage.[23]

[37] The subject site is included in the Residential Choice domain, which is primarily directed towards the provision of residential development. Its stated purpose is "to support the development of a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwellings and apartment buildings that relate well to each other". There is a table of development for that domain, which specifies development which is exempt, self-assessable, code assessable or impact assessable. The table of development has seven parts (A to G respectively). Pursuant to s 4.6.1[24] of the planning scheme:

"Any use not listed in section A of the Table of Development, should be considered as undesirable or inappropriate in the domain to which the table of development applies."

[38] Of the uses proposed for the subject development, the following are, by reason of clause 4.6.1, to be considered as "undesirable or inappropriate" in the Residential Choice domain:

[39] As was submitted on behalf of the appellants, the planning scheme contains no stronger expression of disapproval for a material change of use than to classify it as "undesirable or inappropriate". It was submitted that the proposal is in conflict with the intent of the domain.

[40] The submissions on behalf of the respondent and the co-respondent drew attention to the following passage, from my judgment in SEQ Bond Stores Pty Ltd v Gold Coast City Council[25], dealing with clause 7.6.1 of chapter 2 of division 1 of part 6 of the planning scheme, which is in similar terms to clause 4.6.1:

"(27) While cl 7.6.1 of Ch 2 of Div 1 of Pt 6 speaks of such uses being considered as "undesirable or inappropriate", the provision is not a prohibition on such uses or their approval. The clause could not properly be construed or applied as a prohibition, given s 2.1.23(2) of the IPA. While counsel for the respondent submitted that the provision was as close to a prohibition as one could get under the IPA, the scheme admits, and must admit, of the prospect of approvals being sought and obtained, in response to impact assessable applications, for such uses. It might perhaps be debatable whether conflict with the scheme would arise simply by reason of a decision to grant approval to a use which falls into this default assessment category. Cl 7.6.1 and the Table of Development would in any event, be relevant considerations even s 3.5.14(2)(b) were not triggered. The IPA otherwise requires consideration of the planning scheme in carrying out impact assessment (s 3.5.5(2)(b)). ..."

[41] Having observed that planning schemes under the IPA may not prohibit development, I left open the question of whether approval of an "undesirable or inappropriate" use necessarily, without more, raised conflict with the planning scheme. I did not however, say (or intend to imply) that because IPA planning schemes do not prohibit development, an approval could never conflict with the planning scheme. Section 3.5.14 assumes to the contrary. The "prohibition on prohibitions" under the IPA did not create a planless situation.[26] As I also observed, the fact that a particular form of development fell within the "undesirable or inappropriate" category would be a relevant consideration, even if it did not trigger s 3.5.14(2).

[42] The SEQ Bond Stores Case concerned an application for a tavern on land within the Yatala Enterprise Area LAP. Within the relevant precinct, a tavern fell, by default, into the "undesirable or inappropriate" category, but was not mentioned in a non-exhaustive list of activities, which the provisions stated might be considered to be incompatible. Significantly, the statement of intent recognised the potential appropriateness of needed non-industrial uses, which directly serve other businesses and workers in the area. Further, the site was in a locality expressed to be the preferred location for a consolidation of such facilities. The evidence in that case demonstrated that, while falling, by default, into the "undesirable or inappropriate" category, the proposed tavern was consistent with the statement of intent for the domain, in so far as non-residential uses were concerned, and was proposed for a site in the preferred locality. This case is quite different.

[43] Mr Bain QC, for the Council, submitted that, given the default nature of the designation and the focus of s 3.5.14(2) on the "decision" giving rise to conflict, I should approach the issue by construing the planning scheme as a whole, and then consider whether the use is contrary to it, with particular regard to the intent of the relevant domain, in the context of the planning scheme. That approach, when applied to the subject application, leads me to the conclusion that the planning scheme does not intend the subject land to be developed to provide the facilities proposed in the commercial component of the subject proposal.

[44] The statement of intent for the Residential Choice domain contains support for some non-residential uses. In particular, the domain seeks, amongst other things, to:

"facilitate a wide variety of home office, home occupation and residential support services to be located within the domain, commensurate with local residents' needs."

The Table of Development refers to a range of uses which include a home office and a convenience shop, the latter of which is defined to mean "a shop not exceeding 150m2 that sells food for human consumption and which may also sell or hire other convenience goods".

[45] The nature and extent of the commercial component of the subject proposal extends well beyond that which is supported by the statement of intent. In particular, the commercial component could not be said to be merely "residential support services" which are "commensurate with local residents' needs". The evidence of the economic experts, which is discussed later, demonstrates that the ground floor tenancies in particular are likely to be taken up, in the main, by restaurants/cafes and other "leisure oriented" retailing of a kind which have a broader function.

[46] Given that the site lies to the immediate south of the existing commercial strip in Tedder Avenue, the commercial component will, in effect, form an extension of that strip, connecting it to the southern extremity of Tedder Avenue. Indeed the capacity for the proposal to do so was relevant to the matters advanced in favour of it, including from an economic and urban design perspective. Mr Harrison (an architect called by the co-respondent), for example saw the effective extension of the local business centre as "quite crucial to this site"[27].

[47] Under the planning scheme, the existing commercial uses, on both sides of Tedder Avenue, are included within the Local Business domain. The uses which are proposed in the subject development, but which are "undesirable or inappropriate" in the Residential Choice domain, do not fall into that category in the Local Business domain. That domain however, applies to the three blocks, from the Tedder Avenue/Hughes Avenue intersection to the north to the Crown Avenue/Tedder Avenue intersection to the south. The land surrounding that domain, in each direction, is included in a different domain, being the Residential Choice domain. The inclusion of the subject site within a different domain implies a different planning intent than that which applies to the commercial strip.

[48] The intent of the Local Business domain is primarily focussed upon a local service function. It provides as follows (my underlining):

"The purpose of this domain is to ensure that local business centres provide opportunities for local community interaction and a sense of place and identity. It seeks to provide for a wide variety of activities including retailing, office uses, personal services, entertainment and recreational activities, without changing the function or the predominant local service orientation of the business centre. This domain also provides for residential activity to locate within local business centres where this can be accommodated without fragmenting the commercial centre or creating conflicts between residential and commercial uses.

A key objective of the domain is to ensure that the development of local business centres does not threaten the viability of other existing local centres and other existing and proposed business centres at the district, sub-regional, regional and key regional/metropolitan activity centre levels in the activity centre system.

This domain seeks to promote a local community focus and to support community identity through the provision of high quality public spaces and effective urban design."

[49] As the economists noted in their joint report, the commercial strip in Tedder Avenue is atypical. As the economists' joint report states[28]:

"At present, Tedder Avenue contains a mix of traditional convenience orientated retail services (convenience store/newsagency, a pharmacy, take-away food) together with what could be defined as "leisure orientated" retail services. The latter include up-market fashion outlets, cafes and restaurants. In particular, the centre has an above average representation of cafes and restaurants compared to that found in a typical local centre. Tedder Avenue is recognised as an important location on the Gold Coast for dining out. It is also a place to "see and be seen"."

[50] The same joint report states that restaurants, cafes and take-away food outlets comprise some 52% of total floorspace in the centre. Mr Leyshon conducted shopper surveys. Residents of Main Beach constituted 41% of those interviewed, with the rest coming from residents of other parts of the Gold Coast or from tourists.[29] The "special status" of Tedder Avenue is reflected in its ability to command very high retail rents.

[51] The proposal would be significant in the Tedder Avenue context. It would represent, in effect, a 16% increase in the total ground floor retail and restaurant space in Tedder Avenue[30]. It is unlikely however, that it would increase that space by providing much in the way of traditional convenience orientated retail services for the local population. It is more likely that the ground floor tenancies would be generally taken up by more restaurant/cafes and "leisure orientated" retail facilities, such as boutiques or retail fashion[31], which would not only geographically extend the commercial strip, but, as Ms Bonwick emphasised, reinforce its atypical nature.

[52] Insofar as the second paragraph of the statement of intent is concerned, the economists agreed, in their joint report, that the proposal would not alter the "competitive relationships" between Tedder Avenue and other retail centres and would not unacceptably compete with Southport, Surfers Paradise, Broadbeach or other major centres.

[53] The intent for the Local Business domain does not envisage the broader function of the Tedder Avenue commercial strip. The inclusion of that strip in the Local Business domain does not acknowledge its atypical nature. Mr Leyshon described this as a "short coming" of the scheme.[32] Mr Bain QC, for the Council, described the application by his client of the Local Business domain to the existing commercial strip as "artificial", "inaccurate" and "anomalous".

[54] It was submitted, on behalf of the appellants, that it was significant that the commercial strip was not designated in the scheme as within an Activity Cluster. Activity Clusters are "not usually catchment based" but "can also incorporate traditional business centres which have a role in the hierarchy of catchment based centres". They are "areas with high concentrations of employment, although they do not have to be compact ... they can extend over large areas". The most common form of cluster is said to be "industrial precincts and areas of intense tourism activity".[33] The existing clusters are identified on map PS-4 and include the Spit, Surfers Paradise and Broadbeach. Each of those areas have much higher concentrations of employment and are areas of more intense tourism activity, than the relatively small (albeit well known) three block commercial strip in Tedder Avenue. Mr Bain QC submitted that the commercial strip could not sensibly have been described as an activity cluster.

[55] The existing commercial strip has some elements of a local business centre and some elements of an activity cluster. Mr Leyshon described it as spanning both categories.[34] It may be, as Mr Bain submitted, that its inclusion in the Local Business domain was "for want of a better peg", in the absence of a Local Area Plan for the locality. Whatever be the explanation for the designation, it must be recognised that the Council, in its 2003 planning scheme, made a decision to include the commercial strip within a domain which does not acknowledge its broader function and atypical nature. That is a decision which cannot be ignored.[35] The evidence does not establish that there has been any significant change of circumstances, in relation to the role and function of the commercial strip, since the commencement of the scheme.

[56] It was not suggested that the atypical function of the existing strip is about to change. Considered on a first principles basis, it may seem logical for any extension of the strip to be in keeping with that existing function. That begs the question however, as to whether such an extension is intended by the planning scheme. The decision to include the existing commercial strip in the Local Business domain, and not to extend the boundaries of that domain any further than the existing three block strip, together with the failure to otherwise acknowledge its broader function (far less encourage the reinforcement of the broader function by expansion of the area developed for commercial uses) do not suggest an intention for the commercial strip to be extended, beyond the Local Business Domain and into the Residential Choice domain, by the commercial component of a mixed use development, which would provide more of the facilities which would serve the broader function of the commercial strip and reinforce its atypical nature.

(i) a number of the proposed non-residential uses fall within the "undesirable or inappropriate" category within the Residential Choice domain, which applies to the subject site;

(ii) the commercial component of the proposal does not answer the description of those non-residential uses which are sought by the statement of intent for the Residential Choice domain;

(iii) the commercial component would operate, in effect, as a significant extension of the existing commercial strip, to which a different domain applies, and within which the same uses are not within the "undesirable or inappropriate" category;

(iv) the inclusion of the subject site in a different domain than that which applies immediately to the north, implies a different planning intent; and

(v) the commercial component of the proposed mixed use development would not only, in effect, extend the commercial strip into the Residential Choice domain, but would do so by the provision of a significant extent of further facilities to service a broader function, which is not acknowledged by the intent of the domain.

[58] Those matters suggest that a decision to approve the proposal would, by reason of the commercial component, conflict with the planning scheme. At the very least, those provisions of the planning scheme are relevant to, and of significant weight in, a consideration of the appropriateness of a proposal which would, in effect, provide for development in the Residential Choice Domain with a significant commercial component to provide facilities, which are not residential support services commensurate with the local residents needs, and which would, in effect, extend the existing commercial strip beyond the confines of the land included in the Local Business domain, so that it could connect to the southern extremity of Tedder Avenue, over land in a different domain, within which the uses are, by reason of s 4.6.1 of the planning scheme, considered to be undesirable or inappropriate.

[59] It was submitted, on behalf of the Council, that the location of the site and its orientation to Tedder Avenue "naturally admits of logical (and self-limiting) development of the Tedder Avenue commercial facilities", but that begs the question as to whether an extension is justified. One justification for an extension of commercial development, via the commercial component of this mixed use proposal, was an asserted need. That matter was examined by three economists Ms Bonwick (who was retained by the appellants), Mr Haratsis (who was retained by the Council) and Mr Leyshon (who was retained by the co-respondent).

[60] The joint report of the economists records Mr Leyshon's view that there are a number of indicators of need for the retail component of the development. These include:

• Ongoing population growth in the permanent resident population of Main Beach;

• Rapid ongoing population growth in the wider Gold Coast region;

• The importance of expanding services for tourists and visitors;

• The low (non existent) vacancy rate in the existing centre; and

• The above average rental structure of the existing centre.

[61] He also considered that there is a need for the proposed office space, given the relative lack of such space in the centre, the existing low vacancy rate on the Gold Coast and the demand for modern small area office space users in centres such as Tedder Avenue.

[62] I am satisfied that the proposal is not justified on the basis of ongoing population growth in Main Beach. That population is limited and is experiencing what Mr Leyshon conceded[36] was a relatively slow or low rate of growth. Further, as Ms Bonwick pointed out, Tedder Avenue already provides a range of convenience facilities to cater for the day-to-day or top-up shopping needs of the local Main Beach residents. Those facilities currently include two convenience stores, a newsagent, a range of takeaway food outlets, a pharmacy, five hair / beauty salons, a fruit and vegetable store, video store, bakery, two liquor stores and a delicatessen. Other non-retail convenience facilities include a Post Office, six real estate agencies and two medial centres. I accept Ms Bonwick's evidence that the residents of the Main Beach area are well serviced in terms of their day-to-day or top-up shopping needs.

[63] Further, as has already been noted, retail tenancies in the proposed development are likely to predominantly be in the nature of more restaurants / cafes and "leisure orientated" retailing, than facilities which cater for the day-to-day shopping needs of the local residents. Residents of Main Beach no doubt also make use of the restaurants and "leisure orientated" retail facilities. Mr Leyshon's report says that the demographic characteristics of the population are indicative of a catchment for an "upmarket" local shopping centre, orientated more towards meeting the needs of relatively wealthy, small households with convenience and leisure related retail services. There are however, a plethora of such facilities already available within the centre. I accept Mr Haratsis' evidence that "resident population growth is a very limited indicator of need" for the proposal.[37]

[64] Mr Leyshon's conclusion about need relies, in part, upon population growth in the wider Gold Coast region and the importance of expanding services for tourists and visitors. It may be accepted that the facilities provided at Tedder Avenue are attractive to residents of the broader Gold Coast area and to tourists. No doubt such persons would also be attracted by further facilities, if they were provided in the proposed development. I do not however, consider that is indicative of a level of need which would justify the subject proposal. As Ms Bonwick pointed out, the broader Gold Coast community and tourists / visitors have a range of dining destinations over a wide area from which to choose. This includes Broadbeach, the Spit / Marina Mirage, Surfers Paradise and Southport, all of which offer considerable choice. While Tedder Avenue may have its own particular ambiance, there is no compelling evidence that residents of the Gold Coast city or tourists / visitors are currently under-serviced, suffer from a lack of choice in destinations or dining styles, or would be substantially better served by additional facilities at Tedder Avenue.

[65] Further, the planned role of the commercial strip, as a local centre, should not be ignored. I accept Mr Haratsis' evidence that "from a local centre perspective, I do not believe need could be established". I also accept his evidence[38] that:

"Rapid growth of the Gold Coast region should not be adopted as an indicator of need for a local centre" and "There is only limited importance for Tedder Avenue in the provision of greater services for tourists and visitors. This factor should not be adopted as an indicator of need."

[66] In relation to the above average rental structure and low vacancy rate in the existing centre, My Leyshon expressed the opinion that there must be a strong demand for tenants to get into the centre, in order for landlords to be able to command such rental levels and that the tenants are selling the types of products and services which justify the payments of those rentals.[39] Mr Haratsis pointed out that the centre has a "niche offer" in terms of restaurants, but is small in size, resulting in space being highly prized. Mr Leyshon thought the proposal may help to moderate rents. That does not however, necessarily lead to a conclusion of a strong public or community need for this proposal. As Ms Bonwick pointed out, there are opportunities, within the existing Local Business domain, to accommodate additional facilities, including in the development of 25 Tedder Avenue, which was under construction during the hearing. Further, as Mr Haratsis pointed out: "Vacancy and rental rates relate to a role and function of the centre beyond its local centre status and should not be used as an indicator of need."[40]

[67] The assessment of need for the commercial office space was not the subject of any very detailed analysis. Mr Leyshon relied upon reports from leading agents of a high demand and tight rental market for office space, on the Gold Coast generally, although he conceded, in cross-examination, that the demand for such space is "distinctly cyclical"[41] and influenced more by supply of new space, than fluctuations in demand. In his view, there would be a "quite substantial demand" for the office component of the proposal, given the current lack of such space and the attractions of Tedder Avenue otherwise.

[68] I accept that there would likely be some demand for office space in Tedder Avenue, but I also accept Ms Bonwick's evidence, that the level of need has not been demonstrated. In her oral evidence, Ms Bonwick referred to a then very recently released report[42] which suggests that there will be a strong increase in supply of office space coming on to the market in the Gold Coast. She did not see any significant need for the provision of office space on this site.[43] I am not persuaded that the need for the office component of the proposal is any greater than modest at best.

[69] Mr Haratsis' view was that, from an economic perspective, only a very limited need case could be made, given the planned role and function of Tedder Avenue. As already noted, he also disagreed with Mr Leyshon's conclusion that there was significant need for the proposed retail uses.[44] He agreed with Ms Bonwick that the need is minor or modest at best. Key issues, which led to his support of the proposal were identified by him as "generation of street level activity and maintenance of long term centre viability".

[70] It was suggested by Mr Leyshon and Mr Haratsis that the proposal would increase the "vitality" of the centre as a whole. Mr Haratsis described the benefits of vitality in terms achieving "a pleasant place and an energised place for the entire community". Mr Leyshon saw the proposal as likely to add to the "critical mass" of retail and non-retail attractions at Tedder Avenue. Mr Haratsis saw it as extending the area of street level activity.

[71] Mr Haratsis' view is that the "long term strength and viability" of the centre relates to its "main street style vitality". He regarded it as important to encourage pedestrian movement or a "loop walk" along the "main street" with its "street level activation". Mr Haratsis thought that could be promoted if there were "magnets" or "anchors" in the right locations. He spoke of the "dumbbell" effect, which is often achieved in enclosed shopping centres by locating major "anchor" tenants at either end of the centre, to encourage movement between the two. While Tedder Avenue is unlikely to be the location of a major "anchor" tenant, Mr Haratsis saw some benefit in ensuring that the "structure" of the centre promoted that pedestrian movement. He thought that would be assisted by the proposed development[45], which would also, in his view, encourage growth and investment in the centre.

[72] Ms Bonwick acknowledged the "dumbbell" policy in retailing, but thought that it was not helpful in the current circumstances because:

• Tedder Avenue has a "very strong core", with a strong sense of activity and vitality surrounding that core area.

She saw the proposal as likely to elongate the area and duplicate tenancy types, in a way which may reduce activity and vitality around that core.[46]

[73] Further, Ms Bonwick had difficulty with the notion of seeking to extend the area of pedestrian movement on the western side of Tedder Avenue, when there is no corresponding commercial development on the eastern side of Tedder Avenue opposite the subject side.[47] She did not consider that the creation of commercial development on the subject site would lend itself to vitality in the remainder of the precinct.[48] Further, she expected redevelopment and upgrading of existing commercial buildings to occur whether or not the subject proposal proceeded.[49]

[74] Ms Bonwick also expressed a concern about the economic impact of the proposal (which will be in addition to the impact caused by the new development at 25 Tedder Avenue) on existing traders with the prospect of increased vacancy rates. She pointed to tenancy changes which had occurred over a 12 month period and which she took to indicate some level of "stress". She was however, unable to establish that these tenancy changes were due to "stress" rather than other factors. I am not persuaded that the economic impact of the proposal is likely to lead to significant vacancies in the existing centre.

[75] Insofar as Mr Haratsis' evidence is concerned:

(i) He acknowledged that the centre currently enjoys a good level of vitality;[50]

(ii) His concern is not so much in relation to what the centre currently needs, but what it might need to ensure success in the longer term. In his oral evidence, Mr Haratsis used the expression "long term" or "long run" on some 10 occasions.[51]

(iii) The concern, that tenants might otherwise be attracted to other locations, was one which, he acknowledged, was not being realised at the moment.[52]

(iv) He said the new development at 25 Tedder Avenue, towards the northern end of the commercial strip would be a "major contributor" to the vitality which he seeks[53]. It will strengthen the northern end.

(v) He also acknowledged that, at the southern end, particularly on the western side, there are already some high quality fashion retailers and good quality restaurants and he accepted the proposition that "we already have at the southern end one of those --- dumbells".[54]

(vi) When it was put to him that, with 25 Tedder Avenue strengthening the northern end, and with the existing development at the southern end, the effect which he sought would be achieved, he responded "it certainly will result in very similar effect".[55]

(vii) Mr Haratsis said that he thought it would be good if that part of Tedder Avenue opposite the subject site was also activated, but he went on to describe that as a "long term preference"[56] and did not suggest that it would happen in the near future. He conceded that an extension of the commercial strip on only one side of the street would reduce the effectiveness of the extension in achieving the "dumbbell" approach.[57]

[76] Notwithstanding the matters raised by Ms Bonwick, I accept that, on balance, the proposal would likely make some contribution to vitality, but it is not a contribution which I regard as particularly significant or which justifies the proposal. The existing centre already has good vitality. The new development at 25 Tedder Avenue will contribute towards vitality. Further investment and improvements can reasonably be expected within the existing centre over time. The contribution which the proposal might make to the vitality of the centre is reduced by the fact that, in the absence of some other proposal, it would be an extension on one side of the street only. Any concern about the eventual decline of the Tedder Avenue strip (which currently enjoys high rental returns and low vacancies), in the absence of some change to its structure by an extension of the area, and an increase in its "critical mass", is a long term issue, and one which would be better addressed, if and when the council thought it appropriate to do so, in the context of future plan making or scheme review. There has been no significant change of circumstances since the 2003 planning scheme, which could be said to have overtaken the decision in the planning scheme as to the appropriate extent of the Local Business Domain.[58]

[77] The level of need for the proposed facility is, I am satisfied, minor or modest at best and, in my view, insufficient to warrant approval of the commercial component of the proposal, given the provisions of the planning scheme.

[78] The commercial component of the proposal was also sought to be supported on an urban design basis. In particular, the experts who favoured the proposal considered that its mixed use nature (including the commercial component) would provide an appropriate transition, in the land use, between the southern extremity of the existing commercial strip and the entrance to Tedder Avenue and increase "legibility". Mr Chenoweth, (who was called by the appellants) on the other hand, did not see a benefit in extending the commercial development to Tedder Avenue entry. He described existing commercial area as "low key" and a "discovered place" giving a "sense that it belongs to the residents of the area, even though it is well known outside there". He considered that the proposal would have an adverse impact on character.

[79] These are matters upon which views can legitimately differ, but I do not consider that the extension of commercial development, by a mixed use "transition" is required for the local centre to afford the community interaction and sense of place and identity sought in the intent of the Local Business domain or is required in terms of the sense of place and identity of Main Beach more generally or is otherwise justified. The planning scheme does not suggest that the existing commercial strip is intended to be connected to the Tedder Avenue entrance by a "transitional use" of the kind proposed here and subsequent events have not overtaken the scheme.

[80] I do not consider that the commercial component of the proposed mixed use development is justified.

Building form - height, density, bulk, scale and set backs

[81] There is a Residential Choice Place Code, the purpose of which is stated in terms which follow the statement of intent for the domain. The Place Code includes various "Development Requirements" in s 5.3. Those requirements take the form of performance criteria/acceptable solutions, which are commonly employed in "performance based" planning schemes under the IPA. The development requirements relate, amongst other things, to building height, accommodation density, site coverage, building set back, siting and amenity protection.

[82] The provisions relating to building height and accommodation density refer to Overlay Map OM6 - Maximum Building Height and Overlay Map OM4 - Residential Density respectively. The proposal does not comply with the height or density in accordance with the applicable designations on those maps. The weight to be attached to those overlay maps was a matter of debate.

[83] Overlay OM6-3 is headed "Maximum Building Height (areas outside LAP's)". It shows the existing commercial strip and areas to the west of Tedder Avenue as falling within a "2 storeys" designation. The area which is to the east of Tedder Avenue (and to the east of the commercial strip) but west of Pacific Street and Stafford Avenue falls within a "30 storeys" designation. Land further to the east, between Pacific Street and Main Beach Parade, is included within a "25 storeys" designation with a "20 storeys" designation to the south and a "3 storeys" designation on the eastern side of Main Beach Parade. The applicable designation for the subject site is the "2 storeys" designation. The subject proposal is 5 storeys in height.

[84] Overlay map OM4-9 includes the area to the west of Tedder Avenue, including the subject site, within an "RD4" designation, which is described as "up to 50 dwellings per net hectare (1 dwelling per 200m2 of site area)". The area to the east of Tedder Avenue (and the commercial strip) generally falls within an RD6 designation, which is described as "1 bedroom per 33m2 of site area (up to 300 bedrooms per net hectare)". The subject proposal is for 12 dwelling units and a manager's unit (13 units) on a site area of 2,226m2, which equates to one dwelling unit for each 170m2 of site area.

[85] The appellants sought to place significant weight on those maps for reasons which included the use of the word "maximum" in describing building height and also by reference to part of the statement of planning intent for the residential/tourism/pacific coast land use them which it has said:

"... overlay maps OM4-Residential Density and OM-6 Maximum Building Height will be used to clearly articulate the desired outcome of density and built form for the various parts of the coastal strip."

[86] Mr Bain QC, for the Council, pointed out that, according to the table to clause 4.05 of Part 5 Division 1 Chapter 1 of the planning scheme, the directly relevant land use them for land in the Residential Choice domain is the "Urban Residential" land use theme rather than the Residential/Tourism/Pacific Coast land use theme, which is only said to be directly relevant to the Tourist and Residential domain. As Mr Lyons QC pointed out however, there is no land within the Main Beach area which is included in the Tourist and Residential domain, yet the statement of intent for the land use theme makes a specific reference to Main Beach and the area appears to be included in the residential/tourism/pacific coast land use theme in map PS-1.

[87] Ultimately however, attention must be directed to the way in which the planning scheme gives effect to the overlay maps through the provisions relating to the applicable domain. In the case of the Residential Choice domain, the overlay maps are referred to in the table of development, to determine the level of assessment and in the acceptable solutions in the development requirements within the place code.

[88] The table of performance criteria and acceptable solutions is explained in clause 4 of Part 7 Division 1 Chapter 2 of the planning scheme which states, in part, that:

"Development proposals must comply with the performance criteria to meet the objectives of the planning scheme and to ensure that the DEO's are not compromised. All Performance Criteria are considered separate and distinct.

It is desirable that impact assessable development will comply with the acceptable solutions to ensure that each Performance Criteria is met. However, impact assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant Performance Criteria, to Council's satisfaction. ..."

[89] Accordingly, as the court has observed on a number of occasions, compliance with acceptable solutions is not mandatory. The "performance based" approach to codes in IPA planning schemes admits of the prospect of alternative solutions which may comply with the planning scheme, by meeting the performance criteria. Because the development requirements only reference the overlay maps in the acceptable solutions, the designations cannot be regarded as absolute maximums, notwithstanding the heading to the building height map. It is for this reason that I observed in Cass v Gold Coast City Council & Anor[59], that use of the word "maximum" may, unfortunately, have a tendency to mislead. Mr Bain QC, for the Council, went further by describing the heading as "inappropriate" and the maps as "indicative only"[60] The maps are not however, irrelevant. They are referenced in the acceptable solutions. While admitting of the prospect of other solutions, the planning scheme regards it as "desirable" that impact assessable development comply with acceptable solutions to ensure that the performance criteria is met, although there is also the prospect of an alternative solution.

[90] The development requirements of the place code, insofar as they relate to height and density are as follows:

Accommodation density must be consistent with the residential character of the local area and contribute to the achievement of a variety of dwelling types in the local area.

The dwelling density does not exceed 1 dwelling per 400m2 of site area.

The site is designated with a specific maximum residential density on overlay map OM4 - Residential Density when the development does not exceed the indicated maximum residential density.

All buildings must be of a height which is in keeping with the predominant residential character of the surrounding area. Building height must not result in the significant loss of visual amenity.

The building is no more than 8.5 metres in height and has a maximum of 2 storeys.

The subject site is designed with a specific maximum building height exceeding 2 storeys on overlap map OM6 - Maximum Building Height and the building does not exceed the indicated maximum building height.

The subject site is not designated where a specific maximum building height exceeding 2 storeys on overlay map OM6 - Maximum Building Height when the building is not more than 11.5 metres in height, has a maximum 3 storeys (including a partial third storey) in the set back at a minimum of 10 metres from all boundaries of the site."

[91] The focus of each of those performance criteria is on "character" and a substantial part of the hearing was taken up with evidence and argument about the character of Main Beach and whether the proposed height and density of the proposal complied with the performance criteria in that regard.

[92] The case for the appellants emphasised the existing height and density of residential development in Main Beach, particularly in the area to the west of Tedder Avenue, which includes the subject site. The case for the respondent and co-respondent drew greater attention to the visual dominance of the high rise/high density development to the east of Tedder Avenue and the subject site's location at the interface of the low rise/low density western part of Tedder Avenue with the high rise/high density in the eastern part, as well as the commercial strip to the immediate north and the park and Tedder Avenue entrance to the immediate south. It was suggested that the proposal responds to all of those components in a way which is respectful of the existing character while embracing the "evolving" character of Main Beach.

[93] Reference was made, in this context, to the higher level provisions of the planning scheme, including the Desired Environmental Outcomes and the Planning Strategy as well as to the Gold Coast Urban Heritage and Character Study, which is referred to in the planning scheme. The latter document was described in the Council's submissions as "colourful" and "exhibiting indomitable devotion to the hyperbole".

[94] As the planning scheme acknowledges, the study identified the Gold Coast as Australia's premier "post-modern" city, with an urban form and architecture that "is oriented to lifestyle values, to fantasy and to the future, rather than the traditions of the past". The primary recommendation of the strategy is to "embrace the difference". It contains a relatively brief description of Main Beach which includes[61]:

"Main Beach proper has developed as a high rise area only relatively recently and is focused on Tedder Avenue. It has a sense of more permanent residential neighbourhood than other parts of the high rise coastal strip. The restaurants and coffee shops service this use. Most of the apartment buildings along the foreshore are most modest in scale. The isthmus at Narrowneck acts as a natural barrier to the more intensively developed area to the south."

[95] Understandably, the appellants placed reliance upon statements in the planning scheme which seek to protect local character, while the respondent and co- respondent sought to emphasise those provisions which embrace change. An example is that the co-respondent's submissions placed weight on that part of the explanation for City Image and Townscape Policy CI2 which states "creative innovations in building and landscape design are welcome and necessary" while the appellants' submissions drew attention to the next sentence which states "The resulting developments must reflect the scale and style of the surrounding urban form, so that it positively contributes to the overall city image". Such provisions provide context, but are ultimately sought to be implemented through the domain, including the place code.

[96] The relevant performance criterion for building height is PC6. In Cass v Gold Coast City Council (supra) I recently observed:

"PC6 of the Place Code employs concepts which are somewhat imprecise. They do not require a "string-line" approach, by which no building is permitted to be any higher than its highest neighbour. The focus is what is "in keeping" with the "predominant residential character" and on visual amenity."

[97] In other cases, I have been prepared to find compliance with the performance criterion in relation to low rise buildings which were somewhat taller than either the maximum building height designated on the overlay map, or existing development in the area.[62] Each case will however, depend upon its own facts and the imprecision inherent in the language is no warrant for allowing buildings of any height, irrespective of the character of the area.

[98] A consideration of what is "in keeping with" the predominant residential character of the surrounding area ultimately involves matters of fact, degree and judgment. I was assisted in my understanding of the evidence by an inspection of the area.

[99] Considered from a city wide perspective, Main Beach forms part of the "beach strip", and the "high rise spine" of "tall buildings along the coast line". So much is acknowledged in planning strategy maps PS-10 and PS-11. The part of Main Beach which currently contributes to that spine is the area east of Tedder Avenue, which is visually dominated by high rise high density residential towers. I do not consider however, that is a complete description of the "predominant residential character" of the surrounding area, for the purposes of PC-6. While, as both the respondent and co-respondent pointed out, the residential areas, both and east and west of Tedder Avenue, were included in the same Residential Choice domain and although I was not directed to any express provision of the scheme, which acknowledges and protects the low rise nature of development to the west of Tedder Avenue, it does not follow that the whole of the area is intended to be developed for high rise. If that was so, then one would not expect to see the differential treatments of the different parts of the area in the overlay map.

[100] It was submitted, on behalf of the appellants, that the assessment of character should take place by reference to that part of the area which is within the same designation on the overlay maps. I do not consider that the assessment is necessarily so confined. PC-6 speaks of the "surrounding area". I am not inclined to read down that language.

[101] While the area contains a mix of dwelling types, heights and densities, it is not a random mix. A striking part of the predominant character of the surrounding residential area, as it relates to the subject site, is the dramatic difference between the predominantly high rise areas to the west of Tedder Avenue and the exclusively low rise nature of the residential development to the west of Tedder Avenue (and the low rise nature of the commercial strip). The experts called by the appellants placed great weight on that part of the character and, in particular, the low rise nature of the development west of Tedder Avenue. Mr O'Brien (who was called by the co-respondent) accepted that the distinction is part of the predominant residential character.[63] Mr Harrison (who was also called by the co-respondent) described the predominant resident character of the area surrounding the site as "mixed", but thought a higher value had to be placed on the low rise western area, given the site's proximity to it.[64] Mr Simpson (who was called by the respondent) also took account of the "juxtaposition of the existing high use and low use developments". I am satisfied that the abrupt and dramatic difference between the tall high rise development east of Tedder Avenue and the low rise development to the west forms part of the predominant residential character of the surrounding area.

[102] Being 5 storeys, the proposed building is "high rise" for the purposes of the planning scheme although, in ordinary parlance, it might be regarded as medium rise. It is not low rise, but neither is it a tall high rise tower. It is neither one nor the other, but rather something in between.

[103] The respondent and the co- respondent emphasised what was referred to as the "evolving character" of Main Beach, including the low rise area to the west of Tedder Avenue. It is relevant to have regard to the change which has occurred and which might reasonably be expected to occur in the future.

[104] Main Beach continues to be the subject of development and redevelopment. Photos (in appendix 4 and appendix 5 of Mr O'Brien's report) show the progress of development over the last 50 years, including the emergence of the high rise towers to the east of Tedder Avenue. The focus of the evidence about evolution however, was on the more recent development and redevelopment which is occurring in the low rise area to the west of Tedder Avenue. The evidence was that residential blocks in that part of Main Beach command high prices[65] and continue to be the subject of substantial building and redevelopment work. Examples of that redevelopment appear in the photographic evidence placed before the court. The development and redevelopment in that area takes the form of substantial detached houses and duplexes, the height of which varies from 1 to 3 storeys.

[105] That area shares the same domain and overlay map designations as the subject site. While Overlaying Map OM6 designates the area as within a "2 storeys" area, acceptable solution AS 6.1.3 contemplates development to 3 storeys and 11.5 metres in height where the third storey is a "partial third storey" and is set back a minimum of 10 metres from all boundaries of the site. Attention was drawn to a number of recent developments where Council appears to have accepted an alternative solution which has permitted development to 3 storeys, even though the buildings are plainly not set back to a minimum of 10 metres from all boundaries. These buildings generally present, from the street, as three storey buildings. I accept that further development of that kind may be expected.

[106] These three storey buildings were characterised in the co-respondent's case as 3.5 or four storey buildings and then compared to the proposal, which was described as a 4 storey building with a partial fifth storey. The reference to 3.5 or 4 storeys is because the 3 storey developments are commonly constructed on top of a basement car park, which protrudes, to some extent, above the ground. Under the planning scheme, a storey below ground level, or a storey that projects no more than one metre above ground level is defined as a "basement". I do not accept however, that the buildings have a 3.5 or four storey character in terms of height. They generally present as what they are, three storey buildings above a basement.

[107] While these changes have seen some increase in height and bulk in the area to the west of Tedder Avenue, the character of that area, in height, remains and is likely to continue to be, distinctly low rise.

[108] The commercial strip, within the Local Business domain also remains low rise. While PC6 of the Residential Choice Place Code requires consideration of the predominant "residential" character of the surrounding area, the co-respondent drew attention to the potential for residential development within the Local Business domain, by way of mixed use development. The intent of a Local Business domain contemplates residential activity. PC10 of the Local Business Domain Place Code deals with building height. The performance criteria requires all buildings to be constructed to a height that "complements the character of the local business centre" and does not adversely impact on the amenity of any adjoining residential area. While that part of Tedder Avenue which is within the Local Business domain is also designed "2 storeys" on the overlay map, acceptable solution 10.1.1 provides for development up to 3 storeys where that development includes commercial use on the ground level and residential use on the third storey. Accordingly, redevelopment for a three storey mixed use development is within reasonable expectations in relation to the future development of the commercial strip.

[109] Given the provisions of the planning scheme, there is potential for further tall high rise development to the east of Tedder Avenue.

[110] While the Main Beach area, including the area to the west, continues to experience development and redevelopment, the predominant character continues to feature distinctly low rise development in the residential areas to the east of Tedder Avenue juxtaposed to tall high rise developments in the residential areas to the east. The debate about whether the proposal, at 5 storeys, was "in keeping" with this predominant residential character was influenced by differing views as to the appropriate design response to these differences in height. The experts called by the appellants considered that the proposal was not "in keeping" because it would "blur" the contrast between the high rise and the low rise, while those called by the respondent and co-respondent considered it to be "in keeping" because it responded to both elements, but in a form which was closer to the low rise than to the high rise.

[111] While the proposal is much shorter than the tall high rise, it is also significantly higher than the existing low rise development and is not itself low rise in character.

[112] It was pointed out that the building is not uniformly 5 storeys. It steps down from 5 storeys to 4 storeys at the Cronin Avenue end. The Breaker Street elevation also shows a stepping down of the development towards the western boundary. Notwithstanding the stepping down however, the building remains 5 storeys over a significant part of its substantial length.

[113] This is not a case where the building seeks to hide its height. Indeed the total building height is increased by flamboyant gold fins which protrude above the fifth storey on that part of the building which is at the Breaker Street/Tedder Avenue intersection and, it is said, help to make an entry statement. The building does not have generous setbacks.

[114] The definition of "storey" under the planning scheme provides that a ground floor level, which does not exceed 4.5 metres in height, shall be assessed as one storey only. The definition also measures storeys otherwise by dividing the distance, in metres to the top of the ceiling of the top most level, by 3 metres in the case of a residential use or 4 metres in the case of a commercial use. Here, the proposal employs the maximum floor to ceiling height of 4.5 metres for the ground level, a full 4 metres for the next commercial level, and 3 metres for each of the residential storeys above. When account is also taken of the protruding gold fins, the building height approaches 20 metres, which is of the order of twice the height of the newer three storey residential developments to the west. While, as I have already noted, acceptable solutions are not mandatory, I note that the maximum building height referred to in AS 6.1.3 is 11.5 metres.

[115] It became evident in the course of the hearing that Mr O'Brien and Mr Simpson were not supporters of abrupt change from tall high rise to low rise. Mr O'Brien considered that it would be better to have a building which is higher than three storeys so as to achieve a step between the low rise and the high rise. He saw that as producing a distinction which was "still sharp" but not "absolutely abrupt". He would have no difficulty with five, six or seven storeys and perhaps up to ten storeys for land fronting Tedder Avenue on the western side, including the subject site.[66]

[116] Mr Simpson frankly conceded that he doesn't favour an abrupt change from 30 storeys on one side of the street to three on the other.[67] He saw the proposal, which he described as a "mini high-rise configuration" as being a more appropriate solution, in terms of height and scale, than what would occur with a more abrupt change in height.[68] He confirmed his preference for a "step in between" rather than an abrupt change from 30 storeys down to two or three.[69]

[117] Mr Simpson contended that the development would reinforce the "edge" between the low-rise and the high-rise. In that regard, he saw the existing commercial development as providing "a sheltering medium for the existing residential accommodation behind that". He saw the commercial strip as, in that way, providing an "edge" which he thought would be continued on the subject site "with an interesting residential choice above it". This perhaps goes to the issue about the commercial component of the proposal as well as its height but, from either perspective, I do not consider that the proposed development is justified on the basis of extending a sheltering medium to the residential areas to the west.

[118] Mr Harrison did not support Mr O'Brien's opinion that heights of up to 10 storeys would be appropriate. He saw that the proximity of the site to the low-rise western area as dictating that "you would only moderately increase the height compared to the planned character for the west, rather than substantially increase the height".[70] He recognised that "the predominant residential character is two contrasting characters"[71] and the need "to respond more closely to the low-rise character of the residential area to the west",[72] but thought that because of the unique setting of the site there was the capacity to allow "some extra scale and height" in order "to mark the entry to the Tedder Avenue precinct". The marker effect is discussed later.

[119] I accept that the surrounding area to which regard should be had includes the surrounding area to both and east and the west, but that does not mean that a height which lies somewhere in between will necessarily be "in keeping" with the predominant residential character. In this case, regard must be had to the way that the eastern and western parts of the surrounding area relate to each other. That relationship is not one of gradual transition or gradation, but of abrupt change. The proposed development of a medium-rise or "mini high-rise" on Tedder Avenue, which otherwise marks the boundary of that abrupt change, is not, in my view, "in keeping with" the predominant residential character of the surrounding area, in terms of height.

[120] Gradation does occur, or is planned to occur, in some other parts of the Gold Coast. Overlay map OM6.3 shows, for example, a gradation of designated building height, from east to west, at Labrador.[73] The relevant performance criterion in the Southport LAP Place Code, for example, speaks of a "transition in height". The relevant provisions of the Residential Choice Place Code do not.

[121] Notwithstanding what was said about the evolving character of Main Beach, no such gradation in building height, from east to west, is apparent along Tedder Avenue at Main Beach. My attention was not directed to any provision of the planning scheme which suggests an intention for that to change. The designations on the overlay map suggest to the contrary. As Mr Chenowerth pointed out, such sharp distinctions between tall high-rise buildings and adjacent residential areas also occur in other locations on the Gold Coast.

[122] Some attempt was made to justify the additional height of the building by reference to its proximity to the park and the benefit in providing a further residential development at that location. The argument, in so far as it seeks to justify height, seems to attribute the excess height of the proposal to the residential component only. While the top three storeys are proposed for residential use, the height of the proposal is a result of that component sitting on top of a two storey commercial component. The height of the building is not simply a function of the residential component.

[123] The height of the building was also sought to be justified on the basis of the proposal's ability to act as a "marker" at the entry point of Tedder Avenue. That entry point is currently "marked" by Helen Park, which contains a modest structure announcing "Main Beach",[74] a tall high-rise building on the western side of Tedder Avenue, immediately opposite the park and street level "Tedder Avenue" signs at the intersection of Tedder Avenue and Breaker Street.[75] I accept that existing houses on the subject site do not positively contribute to the attractiveness of the entry, although their low-rise form is in keeping with the predominant residential character, in terms of height. I also accept that the attractiveness of the entry to Tedder Avenue would be improved by an appropriate, well-designed and attractive redevelopment. As Mr Harrison conceded however,[76] that could occur in a two or three storey development. He did however, maintain that a sense of entry to Tedder Avenue would be "reinforced" by the height of the proposal.

[124] As Mr Reynolds acknowledged in his report,[77] the proposal would have little bearing on the legibility of Main Beach as a whole. In so far as marking the entrance to the commercial strip is concerned, I have already determined that there is insufficient justification for extending that strip by development of commercial uses on the subject site. Even if I were to treat the application as if it were an extension of the local business domain, I would find that it does not comply with the performance criteria relating to height in that precinct either, as the height would not complement the character of that centre for reasons summarised by Mr Chenoweth.[78] I also accept Mr Chenoweth's evidence that the Tedder Avenue commercial strip is quite "low key" and does not necessarily need a "big signpost". I am not persuaded that the need for an entry marker justifies the height of the proposal.

[125] The height was also sought to be justified on the basis of the particular characteristics of the location. It lies at the interface of low-rise residential development to the west, commercial development to the north, high-rise residential to the east and a park to the south has already been referred to. What was also pointed out was that it is a site which is primarily focused on Tedder Avenue, whereas the low-rise residential development to the west of Tedder Avenue is primarily orientated on a north-south axis fronting streets which run perpendicular to Tedder Avenue. It is also a site on the extremity of the low-rise area to the west. As a consequence, it would not be visible from many of the residences in that western area. That assists, to a degree, in ameliorating the impact on visual amenity, which is the other test in PC6 of a Residential Choice Place Code. The height of the building would also not block significant sight lines. As the co-respondents case emphasised however, it is on a strategic site, at the entrance of Tedder Avenue and, if developed, would be well known to, and regularly seen by, residents as they move through the area, particularly as they enter and exit Tedder Avenue. The tall buildings to the east of Tedder Avenue are also visible, but the height of the building would have a significant impact upon visual amenity in so far as it relates to the perception and enjoyment of character given the sharp contrast which otherwise forms part of the predominant character.

[126] The proposal fails to meet the performance criterion of the applicable code in relation to building height and I do not consider that there are sufficient grounds, relative to that conflict, which justify approval.

[127] The density proposed is greater than that nominated in the Acceptable Solutions and greater than that which generally occurs in development to the areas west of Tedder Avenue, which is markedly different from that which applies in the high-rise towers to the east. The proposal would contribute to the achievement of a variety of dwelling types in the local area, but the performance criteria requires that to be done in a way which is consistent with the residential character of the local area. While I consider that there is some inconsistency, the issues discussed earlier, in relation to the commercial component and building height are, in my view, of greater significance in this case.

[128] The appellants also relied upon the development requirements in the Residential Choice place code relating to site coverage (PC3) building setback (PC7), siting (PC8) and amenity (PC13). I have already dealt with amenity elsewhere. The building's siting, setback and site coverage differ from that which might be expected were the individual parcels developed for detached dwellings or duplexes, in a similar way to other allotments in the western part of Tedder Avenue. This appeared to be the appellants' preference. The proposal however, is for a mixed use building on an amalgamated site, the commercial component of which would, in effect, operate as an extension of the Tedder Avenue commercial strip. Had I concluded that that was otherwise appropriate, then I would also have concluded that the site coverage, setbacks and siting of the proposal were also justified in the circumstances.

[129] The High Rise Residential and Tourist Accommodation Code was referred to in the issues, but did not feature, in any significant way, in the argument.

Reasonable expectations, impact assessment and overall merit

[130] It was contended by the respondent and co-respondents that there were ample grounds to justify approval of the proposal notwithstanding any conflict in the plans which might be found to exist. The proposed grounds are set out in the written submissions (which I have considered) and include matters which I have already discussed in the context of whether the commercial component of the proposal and its height are justified in the circumstances. I have also had regard to those matters in assessing the grounds in favour of the proposal overall. Other matters include the proposal's:

• Contribution to the mixture of housing available in the area;

• Capacity to act as a catalyst for a higher standard of development;

• The provision of parking and servicing facilities along Tedder Avenue;

• Other benefits acknowledged in the Council officer's assessment of plot ratio bonuses, including the provision of public toilets, footpath widening, site amalgamation, consolidation of the urban footprint and relocation of electrical and telecommunications infrastructure below ground.

[131] The Residential Choice domain seeks to support a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwellings and apartment buildings. That domain applies to the residential areas in Main Beach, both east and west of Tedder Avenue. That area already provides a mixture of dwelling types including detached dwellings, attached dwellings and, on the eastern side of Tedder Avenue, apartment buildings. I accept that the proposed mixed use development, were it to proceed, would add to that mix by offering something not currently found in the locality, although as has already been observed, provision is made within the Local Business domain for mixed use development.

[132] The architectural merit of the proposal is a matter of relevance, although its assessment is necessarily somewhat subjective.

[133] The plans evidence the considerable effort which has gone into the design of the building. It includes many design features which introduce interest, variation and a degree of flamboyance. Reactions to it ranged from being a "unique piece of world-class architecture", to Mr Mack's opinion that, whilst competent, it tried too hard. Mr Simpson described it as "a most competent and attractive piece of architecture and urban design work". Mr Harrison described the building and design as "competent", and added that it would be the benchmark in design quality for Tedder Avenue. Mr Chenoweth thought that in another setting the building would be attractive and vibrant, but did not consider it desirable in the subject location.

[134] Mr Harrison thought that it was important that the development of the subject site be a benchmark in architectural quality and design. Mr Lyons noted that PC9 of the Residential Choice Place Code already required buildings to be designed and constructed to a high ascetic standing. While that is so, the architectural quality of this building is, I am satisfied, of a higher standard than what exists and what might ordinarily be expected. That is a matter I have taken into account.

[135] It might, if developed, encourage others to design to a higher architectural standard, although one would expect new developments to be designed to contemporary standards.

[136] Some evidence was placed upon the "performance based" nature of the planning scheme and on the fact that the application is impact assessable. Indeed, Mr Harrison suggested that the site was an "ideal candidate" for the impact assessable category, because of its location. The co-respondent emphasised that the direct amenity and economic impacts of the proposal were not unreasonable (I have elsewhere discussed the impacts on character and the perception of character). It must be remembered however, that impact assessment is not simply a "first-principles" assessment of a proposal and its impact, irrespective of the planning scheme. As observed earlier, impact assessment must be carried out having regard to the planning scheme, which, in turn, is the basis for reasonable expectations, and a decision on the application must not conflict with the planning scheme unless there are sufficient grounds.

[137] The proposal, in this case, is not without some merit. I am conscious of the obvious effort that has gone into the proposal and that the application was approved by the local authority, in accordance with the recommendations of its officers and an external consultant. This has caused me to pause and reflect upon the conclusion which I have reached. Ultimately however, I do not consider that the proposal is in accordance with the planning scheme and I do not consider there are sufficient grounds to justify approval of the development particularly in relation to its commercial component and the height of the building. I do not regard those matters as trivial or minor, I do not consider that the grounds in favour of the proposal overall justify an approval.

[138] The co-respondent has failed to discharge the onus. The appeal is allowed and the application refused.

[4] [2004] QPELR 337 at [18]; see also Luke v Maroochy Shire Council [2003] QPEC 5; [2003] QPELR 447 at [46] and [55].

[5] Weightman v Gold coast City Council [2002] QCA 234; [2003] 2 QdR 441.

[6] Woolworths v Maryborough City Council [2006] 1 QdR 273.

[9] Appeal Book vol 2D, pg 1229, which reproduces motions moved at the planning committee meeting on 28 November

[10] See definition of "common material" in Schedule 10.

[11] See Luke v Maroochy Shire Council (supra) at [143-144].

[25] [2006] QPEC 66; 2006 QPELR 747.

[26] See Grosser v Gold Coast City Council (2001) LGERA 153 at 162-163, which dealt with a prohibited use under a transitional planning scheme which, by reason of s 6.1.2(b) is taken to be an expression of policy.

[29] Exhibit 18 appendix E, summarised at p 9.

[35] Compare Grosser v Gold Coast City Council [2001] QCA 423; (2001) 117 LGERA 153.

[44] He did not consider the office component.

[58] There was reference to a proposed extension at Marina Mirage, but I do not regard that as a matter which has had an overtaking effect.

[59] [2008] QPEC 032.

[62] See SEQ Bond Stores v Gold Coast City Council, Cass v Gold Coast City Council (supra).

[73] See Cass v Gold Coast City Council.