Development refused due to conflict with planning scheme despite consistency with local character

29 November 2018
Stafford Hopewell, Special Counsel, Brisbane

The Court in WOL Projects Pty Ltd v Gold Coast City Council [2018] QPEC 48 recently refused a proposed development comprised of four detached two storey dwellings for a property located in Robina. The property is approximately 2,301 sqm and the development proposed a total site cover of 28.41 percent.

The site is located within the Gallery Estate which is comprised of an isolated area of residential development surrounded by a golf course. The local area within the Gallery Estate is comprised of a mix of attached houses and multiple dwellings.

In terms of the site and locality, His Honour Judge Everson DCJ summarised this at paragraph [6] of the decision:

Pursuant to the Gold Coast City Plan 2016 (“the planning scheme”) which commenced on 17 May 2017 and which remains in force, the site and indeed all of Andromeda Parade, is within the Low density residential zone. The site is designated as within the Urban area in the Suburban neighbourhood pursuant to the Strategic framework in the planning scheme. The multiple dwellings in Andromeda Parade reflect a legacy of superseded zoning and policy which contemplated greater residential density than that in the controls pursuant to the planning scheme. (footnotes omitted and our emphasis added)

The property is located within the low density residential zone and is designated within the urban area in the suburban neighbourhood plan under the Gold Coast City Plan 2016 (City Plan 2016).

The issues for determination in the appeal can be summarised as follows:

  • Issue 1: whether the proposed development would be an appropriate land use in the location;
  • Issue 2: whether the proposed development would be compatible with and enhance the planned character of the locality; and 
  • Issue 3: whether there were any relevant matters to justify approval of the proposed development in the event that the Court determined that the proposed development could not comply with the applicable assessment benchmarks.

Issue 1

In the first issue for determination, His Honour Judge Everson DCJ considered that the proposed development was not an appropriate land use for the property, based on reading City Plan 2016 as a whole.

Considerable weight was given to the recent amendments to the City Plan 2016, which reinforces the language and purpose of restricting the development of multiple dwellings in the low density residential zone and in the suburban neighbourhoods.

Issue 2

The second issue for consideration concerned an assessment as to whether the proposed development would be compatible with and enhance the planned character of the locality.

In considering the second issue, His Honour Judge Everson DCJ accepted the evidence of the town planners engaged by both parties, in that the proposed development would result in a low density outcome for the site. Aside from this, His Honour Judge Everson DCJ held at paragraph [25] of the decision that:

While the proposed development may be in accord with the existing pattern of development in Andromeda Parade, it does not accord with the planned character of Andromeda Parade pursuant to the planning scheme. What is planned is dwelling houses supported by other uses in certain restricted circumstances and those circumstances are not satisfied so far as the proposed development is concerned. …the architectural merits of the proposed development and the spatial separation of the proposed dwellings does not overcome the fact that the planned character of the locality no longer supports multiple dwellings for the site. (our emphasis added)

Issue 3

In the third issue, the appellant argued that in the event the Court found that there is conflict with City Plan 2016, the following grounds justified approval of the proposed development:

  • the proposed development would not adversely impact on the residential amenity of the area, as it was comprised of detached dwellings, keeping with the intent for built form in the area;
  • the proposed development would maintain the residential amenity and local character of the area, as the existing area is fully developed;
  • a significant proportion of the existing development is not in line with the intent of the City Plan 2016 for the area;
  • the proposed development is consistent with the existing character of the area;
  • the proposed development would comply with the built form provisions of City Plan 2016;
  • the property is large enough to cater for multiple detached houses, including landscaping and sufficient room for car parking without giving rise to adverse amenity impacts;
  • the central location of the property, with existing services and proximity to schools, shopping centres, employment precincts, commercial hubs and parks; and
  • the support given in the City Plan 2016 for infill development.

Considering the final issue for determination in the appeal, Judge Everson DCJ held that the appellant could not establish any relevant matters that would justify the proposed development, despite the conflict with City Plan 2016.

His Honour Judge Everson DCJ relevantly held that the fact that the previous planning scheme controls contemplated multiple dwellings on the site (which has led to an ‘abundance of multiple dwellings’ in the street), did not justify the departure from the clear planning intent for the property, as set out in the relevant planning controls in the City Plan 2016.

Key takeaway

Developers need to be mindful of not placing too much reliance on the existing character of an area. In the event of conflict with the planning scheme, despite there being an existing amenity or character (due to previous planning controls), the assessment manager and / or the Court will need to be satisfied that the applicant has justified a departure from the planning intent for the particular site as set out in the planning scheme.

Authored by: 
Stafford Hopewell, Partner
Sarah Day, Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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