WBQH Developments Pty Ltd v GCCC

Performance Criterion 1 of the Tourist and Residential Domain Code (PC1):

"All buildings must be constructed to a height which complements the distinctive local character of the coastal parts of the city and either:-

(a) contributes to the clustering of high rise structures; or

(b) introduces transitional building heights between these high rise clusters."

Performance Criterion 10(a) of Tourist and Residential Domain Code (PC10(a)) and Performance Criterion 7(a) of the High Rise Residential and Tourist Accommodation Code (PC7(a)) are in identical terms:

"All buildings and ancillary structures must be designed to:

(a) contribute to the urban character of the local area."

[5] In short, the dispute comes down to whether a building that height complements the character of the local area. Although there are distinctions between the tests imposed by them, it was common ground that PC10(a) and PC7(a) add nothing significant to PC1. If the proposal meets PC1, it necessarily meets the others. Depending on how PC1 is interpreted, it is conceivable the development could conflict with PC1 yet meet the requirements of PC10(a) and PC7(a). If the proposal fails at the first hurdle, however, there is little utility in considering the other PCs. The application must not be approved unless there are sufficient planning grounds to justify approval despite the conflict with PC1.[1] The focus of evidence and argument was whether the proposal does conflict with PC1 and, if so, whether there are sufficient planning grounds to justify approval despite the conflict. They are the questions addressed by these reasons.

[6] The proposal does not achieve the Acceptable Solution identified for PC1.

AS1: The building height does not exceed the maximum height as identified on Overlay Map OM6 - Maximum Building Height.

That map specifies a "maximum building height" of seven storeys for the area in which the site is located.

[7] Its failure to meet AS1 triggered impact assessment, instead of code assessment of the project.[2] However, that does not establish a conflict with PC1. Compliance with acceptable solutions is not mandatory.[3] If WBQH can demonstrate an alternative solution meets PC1 there is no conflict.

[8] This requires a performance based assessment of the proposal against PC1. In undertaking that assessment, Council argued the planning intent expressed in the Residential/Tourism - Pacific Coast Land Use Theme[4] is relevant. That theme states, in part, that Overlay Maps.... OM6 - Maximum Building Height will be used to clearly articulate the desired outcome of ...built form for the various parts of the coastal strip. On Council's case, this reinforced a construction of PC1 which admits of only limited and quite specific circumstances in which it can be otherwise satisfied.

[9] WBQH cautioned against elevating the height limit identified in the Overlay Map to the status of a Performance Criterion. There can be no dispute that a building which exceeds 7 storeys can be approved if it otherwise meets the requirements of PC1. The question is whether this particular building meets PC1 in this particular location. Council argues it does not.

1. the height of the building must complement the distinctive local character of the coastal parts of the city; and

a) contribute to the clustering of high rise structures; or

b) introduce transitional building heights between these high rise clusters.

Thus the project must satisfy 1 and either 2(a) or (b).

What is the distinctive local character which the building must complement?

[11] The parties do not agree what is the relevant coastal part of the city for this application or what is its distinctive local character. Those questions are necessarily inter-related. To some extent the area will be revealed by characteristics which identify a distinctive local character. Yet what is an area's distinctive local character may differ depending on how broadly or narrowly its boundaries are drawn. The conundrum is acute in this location in which low rise predominates, save for Royal Palm and Princess Palm. The boundaries of the area proposed by the parties reflect their contentions about what is its distinctive character. WBQH argued the case for a narrowly defined area in which those buildings establish a distinctive character and Council for a larger plane upon which they present as aberrations.

[12] The area for which WBQH contended is bounded to the east by the beach and Pacific Ocean, to the north by Lacey's Lane and to the west by the Gold Coast Highway. To the south lies the Palm Beach Parkland, although it was not clear whether WBQH included it within the area.[5]

[13] That area was defined, in large part, by reference to the impact of the height of Royal Palm and Princess Palm. Other features were relied upon: there is a higher population density; a pattern of mega allotments rather than fine grained subdivision; and differences in the road configuration. The first two features reflect the two tall buildings and Currumbin Sands. As for the road configuration, Jefferson Lane, a roadway parallel to the beach behind the front dune, ends at Lacey's Lane to the north of the block; and there is a service road and associated vegetation buffer from the Gold Coast Highway along a short strip which is different to other parts of the suburb of Palm Beach. According to WBQH its distinctive local character is higher density and taller structures.

[14] Council argued it is artificial and unduly restrictive to confine the enquiry to a single city block to the south of Lacey's Lane. The suburb of Palm Beach as a whole, as it extends between the headlands to the north and south, is a distinct part of the city, although it was reasonable to draw the eastern boundary at the Gold Coast Highway, because PC1 refers to coastal parts of the city.

[15] The features Council relied upon included the physical boundaries created by substantial land forms to the north: Tallebudgera Creek, Big Burleigh and the Burleigh Ridge; and to the south: Currumbin Creek and Currumbin Hill. Those features are recognised in the Planning Scheme as timeless gateways; significant natural entry points into this part of the city.[6] Mr Middleton, the architect engaged by Council, also noted the absence of a beach front esplanade in Palm Beach as a point of distinction from other coastal parts of the Gold Coast.

[16] Both experts engaged by WBQH considered the suburb of Palm Beach lacked a cohesive urban character, although their architect, Mr O'Brien, conceded the natural features formed natural boundaries. As against that, Professor Brannock, the town planner engaged by Council, and Mr Middleton found a consistency of built form comprised primarily of residential development of three to four storeys with some buildings up to seven storeys. There are three stand-out exceptions to this built form, two of them being Royal Palm and Princess Palm. Council argued the distinctive local character is low rise residential development in contrast to other more intensively developed coastal parts of the city of the Gold Coast.

[17] Mr O'Brien appeared to start his search for distinctive local character from within the geographical confines of the area Council contended for. He identified only two areas within Palm Beach as having distinctive local character; that is, a character that set it apart from its surrounds. They are the commercial centre and this area south of Lacey's Lane. That he could identify only two areas which significantly diverged from their surrounds tends to indicate that, overall, there is a fairly uniform local character across Palm Beach as a whole. That is Council's argument.

[18] The role attributed by WBQH to the two tall buildings marks the most significant divergence between the parties. There is no contest those buildings are distinctive in the sense of being different. Regardless at what distance the lens is focussed, they present as divergent features in the current built form of Palm Beach.

[19] Whether they also define the local character of an area is a different question. This begs the question to what extent the two tall buildings can determine both the character and the area of the coastal part of the city to which the Performance Criterion relates. WBQH would have it they do both.

[20] That proposition is self perpetuating, to a point. If the primary focus is the dominant influence of the buildings, the boundaries will be drawn to reflect the area in which they dominate. So drawn, the building's dominance will define the distinctive local character. The argument breaks down once it is conceded, as Mr O'Brien did, the buildings' influence, but not dominance, extends beyond the area contended for by WBQH.

[21] If the boundaries are drawn to include the suburb of Palm Beach east of the Gold Coast Highway, their impact is obviously diminished. Significantly, if the area is defined to extend north of Lacey's Lane, but not to encompass the whole suburb, the result is the same. Once the field extends beyond WBQH's narrow confines the buildings present as aberrations. Rather than defining local character they stand in contrast to it. That is how Professor Brannock saw it, identifying them as conspicuous and uncharacteristic within the immediate and the wider surrounding residential neighbourhood.[7]

[22] It can hardly be disputed the influence of the buildings extends beyond Lacey's Lane and Mr O'Brien agreed that is so. It seems to me to be a difficult proposition to maintain that the boundaries must be fixed by the range of the buildings' dominance rather than their influence. That smacks of a self serving analysis.

[23] The other features relied upon to draw the northern boundary at Lacey's Lane either reflect, largely, these two buildings (density and pattern of tenures) or are of marginal significance when considering built form as it relates to character (the road configuration). If, then, the existence and influence of the tall buildings is a primary factor in drawing the boundaries, stopping at Lacey's Lane appears to me to be too restrictive. This northern boundary is the important one in determining this question as south of the site lies parkland and then Currumbin Creek. The built form lies north of the proposed site and the question is how far north one looks in identifying local character.

[24] In resolving these linked questions of area and character, the existence of the two buildings cannot be disregarded.[8] Nevertheless, the circumstances in which they were constructed and the pattern of development in the area since their construction is relevant in determining later planning scheme provisions.[9] When built, planning approval was not required. There was, then, no height restriction or preference expressed by a planning scheme. Since then, a seven storey height restriction or trigger has been a feature of all three Planning Schemes adopted in 1982, 1994 and 2003. Under those schemes no further buildings of that nature at this end of Palm Beach have been approved. Whether any were applied for is not in evidence. The fact is a broad policy intention has been repeatedly endorsed by Council and there has been no departure from it. The impact the existence of these buildings may have on the application of the current planning scheme must be considered in that context.

[25] As a starting proposition, I am not attracted by a narrow enquiry about character. Without good reason, the court should not adopt an overly restrictive approach or confine consideration to a narrow radius around the site.

[26] That is consistent with the approach taken by this Court in other, albeit not identical, situations. In Degee,[10] Skoien SJDC said:

"I think that, in seeing whether a developing area provides a mix of different housing styles, one can look fairly widely in order to define the area. In this case it should not be restricted to the site block or to any narrow radius around it."

[27] While the question asked in that case was different, I see no reason to depart from that general approach unless there are other indications in the planning scheme that the court should look more narrowly. In my view, the indications given by higher order elements of the scheme are that provisions of the scheme are intended to preserve a distinct low rise residential character for the suburb of Palm Beach as a whole.

[28] The land use themes adopted in the scheme provide a broad indication of the type of activities and development envisaged for distinct parts of the city in order to achieve the desired environmental outcomes and the intent of the planning strategy. The domains defined in the scheme are closely related to land use themes identified for each domain. The domain codes implement, through their planning measures, the purpose of the land use themes. Council has regard to the land use themes as expressions of broad planning policy when considering impact assessable applications that do not fully accord with applicable codes. [11]

[29] This site is in the Tourist and Residential Domain. One of the land use themes expressed through the planning measures in that code is Residential/Tourism - Pacific Coast.[12] That land use theme acknowledges the diversity of residential and tourist development along the Pacific Coast predominantly on the eastern side of the Gold Coast City Highway from Coolangatta to Labrador.

[30] Council emphasised the statement of planning intent[13] for that land use theme, in particular its reference to Overlay Maps being used to clearly articulate the desired outcome of built form for the various parts of the coastal strip.

[31] The overlay map is, then, a planning measure to implement a land use theme in a domain. It is not merely a trigger for assessment. It articulates an expressed planning intent. As such, both the land use theme and overlay map assist in interpreting what is the coastal part of the city to which PC1 relates for this application.

[32] The Overlay Map 6 series of maps exhibit an indication that Palm Beach, as a suburb, is regarded as a distinct coastal part of the city. The uniformity of the height restriction applied in Palm Beach along the coastal strip, largely to the east of the Gold Coast highway, is disturbed only by a local area plan for the commercial centre of the suburb. That stands in contrast to maps in that series for other areas in which more finely grained distinctions are drawn within suburbs, as well as between them: such as the maps covering Broadbeach, Mermaid Beach, Tugun, Bilinga and Coolangatta.

[33] WBQH found indications in the statement of planning intent for the land use theme that a localised assessment is called for. In particular:

"this place code seeks to ensure that buildings are designed to reflect the individual character of the various tourism clusters and residential neighbourhoods along the coastal strip. It also seeks to regulate new development to ensure that it contributes to the amenity of the local area and complements the scale and design of adjoining properties."

[34] According to WBQH, the use of phrases such as: the individual character of residential neighbourhoods; the amenity of the local area; and the scale and design of adjoining properties indicates local character is to be judged at a smaller or more localised not a broader scale.

[35] But, Council argued, it is the residential neighbourhoods, not the adjoining properties, which are important when considering distinctive local character. The planning intent is to ensure the individual character of residential neighbourhoods is reflected by a building's design. The area south of Lacey's Lane cannot be considered a residential neighbourhood distinct from that to which it is connected. That seems right to me.

[36] The second requirement of PC1 (contributing to clustering or transitioning between clusters) is more directed to adjoining or nearby structures. I am not persuaded, however, that the distinctive local character of an area should be determined by such a narrow reference point.

[37] While there are distinct features at the southern end of Palm Beach, the two tall buildings stand in contrast to the predominant built form. Even on a narrowly delineated scale, at that end of the suburb, arguments are legitimately raised that the distinctive local character is established by the low rise development of Currumbin Sands and the remaining single dwellings south of the towers. There is also the influence on character of the open space of the Parkland to be considered.

[38] Palm Beach presents to me as a distinct coastal part of the city because of the geographical features which delineate its northern and southern extents and because of the consistency of its built form which differs from that encountered in other coastal parts of the city. Overlay Map 6 reinforces a planning intent to preserve that character, low rise residential development.

[39] Royal Palm and Process Palm are discordant features which clash with, rather than complement that character. A third building of a similar height to the smaller of the two will be no less discordant.

[40] In Mr O'Brien's opinion, a motorist travelling up the Gold Coast Highway would not be surprised by seeing a tall building in the proposed location. The observer would have in mind images of other taller structures seen in parts of the coastal strip already passed through, even if they are no longer within sight. That may well suggest the building complements structures in other coastal parts of the city, it does not support an argument that it complements the distinctive local character of this coastal part of the city.

[41] There is also the perspective of users of public spaces to consider when applying a performance criterion plainly directed at character and amenity. Currently, from within the Parkland, the visual impact of the two tall towers is offset by the intervention of characteristic low rise development. The subject site is an edge site. The proposal would place an uncharacteristically tall structure in the foreground of that perspective.

[42] In my view, then, WBQH fails at the first hurdle, because it has not established it fulfils the first requirement of PC1. A building of that height in that location will not complement the distinctive local character of this coastal part of the city.

[43] In case I have erred in drawing that conclusion, I will consider the alternatives comprised in the second requirement of PC1 before turning to address whether there are sufficient planning grounds to justify approval despite the conflict.

Contributes to the clustering of high rise structures.

[44] One of the alternatives in the second requirement of PC1 is that the proposed building is constructed to a height which contributes to the clustering of high rise structures.

[45] Clustering does not have a technical meaning. The definition of cluster in the Macquarie Dictionary is:

"Cluster noun 1. a number of things of the same kind, growing or held together; a bunch; a cluster of grapes. 2. a group of things or persons near together; a cluster of bombs...Verb .5 to gather into a cluster"[14]

[46] The requirement is not to form or establish a cluster of high rise structures but to contribute to the clustering of such structures. Whether or not the two existing towers form a cluster is not to the point. The evident purpose of PC1 is to group together high rise structures (over 5 storeys)[15] not scatter them throughout the domain.

[47] Council seemed to argue this aspect of PC1 could only be satisfied where the site was located in both the Tourist and Residential Domain and in an area identified in Planning Strategy Map PS-13 as "City Edges - High Rise". This is because the only other reference in the planning scheme to clusters of buildings that it located was in s1.5 of the key strategy: Ch 15 City Image and Townscape. It described Map PS-13 in these terms:

"The City Edges - High Rise are clusters of high rise buildings on Surfers Paradise which form a physical and visual landmark when viewed throughout the City. It is intended that this edge remains clear and distinct by restricting clusters of high rise to a concentrated area, as identified, thereby providing enhanced legibility within the urban area."

[48] Further Planning Strategy Map PS11 identifies the Palm Beach as a minor concentration in the High Rise Spine. The purpose of the map is to describe the broad physical structure of the City in terms of its built form and natural landscape. It sits comfortably with the interpretation contended for by WBQH.

[49] The language of PC1 does not suggest a restriction to particular areas identified on Map PS-13. It could easily have included a limitation of that nature but does not. The proposal fulfils this aspect of the Performance Criterion.

Introduces transitional building heights between high rise clusters.

[50] WBQH faintly pressed an argument the proposed development would introduce transitional building heights between high rise clusters. In his report, WBQH's town planner, Mr Ransome, said this aspect of PC1 was satisfied but did not seek to justify his opinion because, he said, it was clear the requirement of clustering was satisfied. In giving evidence, he said the proposed building would provide a transition of building heights back from the tallest tower to the creek corridor. He also said it would transition between the buildings to a cluster somewhere south of the site, without nominating where that cluster might be located.

[51] Even accepting Royal Palm and Princess Palm form a cluster, there is no identified cluster within sight of the proposed development to which it could be said the proposed building would provide a transition in heights.

[52] Mr O'Brien said the building transitioned between the lowest and highest buildings in the cluster. If regard is had to the height of the buildings, rather than the number of storeys, the difference in height between Princess Palm and the proposed development would be almost imperceptible. It could not contribute to the transition Mr O'Brien identified. In any case that is not the transition that PC1 requires.

[53] The proposed building would not introduce transitional building heights between high rise clusters.

Are there sufficient planning grounds to justify approval despite the conflict?

[54] Having determined the proposed building does not comply with PC1, I must consider whether there are sufficient planning grounds to justify its approval. Those planning grounds must be matters of public interest[16].

[55] WBQH argued the proposal is otherwise consistent with higher order planning provisions and sound urban planning. Council does not dispute they are matters of public interest but denies they are sufficient. The requirement for sufficient grounds suggests something more is required than the proposal is otherwise compliant with the scheme.[17]

[56] The nature and the extent of the conflict are relevant to the assessment[18]. The proposed building does not complement the distinctive local character of this coastal part of the city. It would result in a third tower being located in an area characterised by low rise residential development. In my view, it would tend to reinforce rather than ameliorate the aberrant buildings and, to that extent, it is a significant conflict with PC1.

[57] None of the matters put forward by WBQH establish a positive betterment in terms of planning outcomes[19] that would justify departure from the planning scheme. A proposal which complies with PC1 would achieve as much. There are not sufficient planning grounds to allow the application to be approved and the appeal is dismissed.

[1]Integrated Planning Act 1997 (Qld), s 4.1.52.

[2] Gold Coast City Council Planning Scheme, Part 5, Division 2, Chapter 6, 5 Tourist and Residential Domain

[3] Main Beach Progress Association v Gold Coast City Council [2008] QPEC 37; [2008] QPELR 675 at [88] - [89]

[4] Gold Coast City Council Planning Scheme, Part 3 Division 4 Chapter 13

[5] Its experts, Mr O'Brien, architect and Mr Ransome, town planner expressed different views on that point.

[6] Gold Coast City Council Planning Scheme, Part 3, Division 2, Chapter 15, City Image & Townscape, 1.5

[7] Page 10 of Professor Brannock's report.

[8] As Judge Quirk recognised in Purcell Family v GCCC [2004] QPEC 9; [2004] QPELR 521 at 524 (20); Muir JA in Aria Property Group Ltd v Maroochy Shire Council [2008] QCA 169 at [67]

[9] Grosser v GCCC [2001] QCA 423

[10] Degee & Anor v Brisbane City Council & Anor [1998] QPELR 287, at 289.

[11] Gold Coast City Council Planning Scheme, Part 3, Division 3, Chapter 1.

[12] Gold Coast City Council Planning Scheme, Part 5, Division 1, Chapter 1, Clause 4.0 & Table to Clause

[13] Gold Coast City Council Planning Scheme, Part 3, Division 3, Chapter 14, Clause 1.0.

[14] Macquarie Dictionary 4th ed, 2005 .

[15] Gold Coast City Council Planning Scheme, Part 4, Division 1.

[16] Integrated Planning Act 1997(Qld), Sch 10 Definition of grounds.

[17] Grosser v Gold Coast City Council [2001] QCA 423.

[18] Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273 at 286 [23].

[19] Palyaris v Gold Coast City Council [2003] QPEC 56 at [37].