Developer loses appeal against refusal for overdevelopment of land for retirement village

In GTH Resorts No 5 Pty Ltd v Gold Coast City Council [2020] QPEC 2020, the Planning and Environment Court was required to determine whether a proposed retirement village was an overdevelopment of the land and, if so, were there relevant grounds to justify approval despite the overdevelopment.

The land the subject of the proposed development comprised four adjoining irregular shaped lots with a total area of 13.854 hectares. The land fronted Galleon Way, Currumbin Waters to the west and backed onto Currumbin Creek to the east.

GTH’s proposal was for an ‘over 50s lifestyle village’ with 340 apartments in 16 buildings of 2 and 3 storeys and associated recreational facilities. The development footprint comprised about 8.229 hectares on the western frontage along Galleon Way with the balance area of about 5.625 hectares on the eastern side adjoining Currumbin Creek to be rehabilitated and proposed to be dedicated to council for conservation purposes.

While the development proposed a large area of ecological rehabilitation and open space, the land was subject to a split zoning under the council’s city plan with about 5.121 hectares in medium density zone adjoining Galleon Way and over 8.7 hectares in the open space zone adjoining Currumbin Creek.

The proposed development footprint occupied almost 60% of the land, which significantly exceeded the area of the land included in the medium density residential zone which was about 37% of the land.

The proposed development was code assessable in the medium density residential zone and impact assessable in the open space zone. The application was therefore impact assessable against the whole of the city plan.

Grounds of appeal

In the appeal, the council contended that the court should refuse the application on the basis it was an overdevelopment of the land. Council identified the following “symptoms of overdevelopment”:

• the design and siting of the new use does not respond appropriately to, and respect, known ecological constraints;
• the footprint of the new use intrudes into an area designated for open space purposes, in circumstances where the council’s city plan provides no support for a development outcome of this kind; and
• the design and siting of the new use fails to respect a known flooding constraint, and, as consequence, is contrary to sound floodplain management principles.

More particularly, the council alleged that the development did not comply with the following parts of the city plan:

1. 1. strategic framework;
   2. open space zone code;
   3. environmental significance overlay code; and
   4. flood overlay code.

GTH disputed the council’s allegations of overdevelopment and also advanced the following grounds in support of approval:

• a detailed site constraints analysis;
• a strong level of community and economic need for the new use, which can be met by the development absent any unacceptable amenity impacts; and
• tangible environmental/ecological benefits the development will deliver for the land, and adjoining land.

Court decision

In a lengthy judgment running to 45 pages, Williamson QC DCJ focused his attention to a detailed consideration of the city plan’s provisions dealing with environmental and ecological constraints.

The land was significantly disturbed, having been impacted by the construction of a trotting track and two artificial drainage channels in the 1980s. The court nevertheless found that the evidence established that a range of local ecological values have persisted, or regenerated, on the land despite the historical disturbance. GTH described these values as ‘recently acquired’ but the court said this description did not offer any assistance in this case given the ecological values of the land have regenerated, or persisted, in the face of disturbance over 30 years.

The court noted that the city plan contained a comprehensive suite of provisions, predominantly set out in the strategic framework and environmental significance overlay code (ESOC) dealing with environmental issues.

In the court’s view, the relevant city plan provisions placed a clear obligation on the protection of environmental values on-site (‘in situ’) and the proposed development was required to be assessed on the basis of the extent to which it conserved these existing values. This included to the extent these values were found in the medium density residential zone area of the site as well as the open space zoned area.

The footprint of the proposed development covered the medium density residential zone and intruded into the open space zone. The court noted that the extent of the intrusion in the open space zone was “considerable” being about 3.108 hectares. The built form in the area of intrusion comprised 6 of the 16 apartment buildings, roads, carparks and the proposed recreation facilities.

Given the low lying nature of part of the land, the development footprint required approximately 85,750m3 of fill. All vegetation in the development footprint would be removed.

Ecological impacts

The court accepted, with all of the ecological experts agreeing, that the proposed development would protect, rehabilitate and enhance environmental values in the eastern part of the land outside of the development footprint. The parties however, disagreed on the impact on the western part of the land where the development footprint was located.

In the court’s view, the proposed development would not protect existing koala habitat and swamp oak contained in the development footprint, contrary to the ESOC and strategic framework.

The court was also satisfied on the evidence that the proposed development did not maintain connectivity with and protection of the broader green space network.

GTH sought to argue that the adverse environmental impacts were not significant due to the already degraded nature of the land, however this was rejected by the court. In particular, the court noted that city plan expressly provided that environmental values were to be protected and rehabilitated where they were degraded.

Overall, the court was of the view that the design maximised the development footprint at the expense of ecological values which failed to contribute to the achievement of the nature conservation strategy articulated in the city plan.

Net environmental benefit

GTH tried to address the environmental impacts of the development by arguing that the proposed development would deliver a net environmental benefit despite its adverse impacts.

While the court readily accepted that part of the land would be rehabilitated and enhanced by the development, this alone did not establish a net environmental benefit.

In a detailed consideration of the issue, Williamson QC DCJ recognised that where there is partial compliance with a planning scheme, there is partial non-compliance, and to determine net environmental benefit both the extent of compliance and non-compliance with the planning scheme needs to be assessed.

In this case, the court noted that the city plan has a strict policy of in situ protection and this was not complied with by proposed development which would result in significant loss of environmental values in the development footprint. Therefore, even though environmental values would be protected outside of the development footprint, this did not offset or negate the loss of environmental values in the development footprint. Accordingly, the court was not satisfied on the evidence that:

• GTH established the proposed development will, if approved, result in a net environmental benefit; and
• the proposed development will achieve an environmental outcome that is equal to, or superior, to that anticipated by the city plan.

Open space zone

The court also considered whether the proposed development was contrary to the open space zone code. Council alleged that:

1. 1. the development does not protect matters of environmental significance in the zone; and
   2. the use, and scale, of the development is contrary to the intent of the zone.

Based on the court’s consideration of the environmental issues, it was satisfied that the council made out the first allegation.

In relation to the second point, the court found that the proposal for 144 units in 6 apartment buildings in the open space zone was not consistent with the intent of the zone.

The court accepted that the boundary between the medium density residential zone and open space zone lacked precision and it was appropriate to determine the delineation based on a detailed site analysis. However, the court held that this had to be guided by the city plan and it was not appropriate to disregard the zoning of the land and adopt a first principles assessment.

Exercise of discretion

The court concluded that the proposal represented an overdevelopment of the land, which manifests significant non-compliances with the city plan. Further, the court accepted that this was decisive in the circumstances.

The court nonetheless went on to consider 14 relevant matters that GTH identified as supporting the approval. The court either rejected these matters or held that they were not sufficient to justify approval.

In particular, need and an absence of amenity impact did not in the circumstances of the case support approval.

Key Takeaway

This decision highlights the weight to be given to planning scheme provisions in carrying out the assessment required under the Planning Act. In this case, the council’s city plan contained very clear policy that environmental values had to be protected in situ.

While the court acknowledged that the proposed development had a number of beneficial features and would result in rehabilitation of part of the land, overall the proposed development did not protect environmental values on the land and would result in the substantial loss of environmentally significant habitat.

This constituted an overdevelopment of the land and the resulting failure to retain these environmental values was contrary to the city plan and not in the public interest.

For developers, this decision highlights the risks associated with departing from planning scheme requirements.

Authored by:

Stafford Hopewell, Partner