For the first time, the Planning and Environment Court has allowed an appeal decided on whether the new proposed development was compliant with Council’s building height uplift provisions.
Thynne + Macartney successfully represented residents of Hedges Avenue in an appeal before the Court which resulted in the dismissal of a four-storey apartment complex that was found to be inconsistent with the special identity and sense of place enjoyed by the residents of the predominantly two-storey beachside area.
A number of earlier Court appeals had considered these provisions and the challenges (typically by the adjacent residents) had been unsuccessful.
This matter concerned the proposed development of land situated on one of the Gold Coast’s most exclusive residential addresses, Hedges Avenue, characterised by its unique proximity to the ocean and architecturally impressive private dwellings. The subject land had recently obtained a three-storey development approval which was granted on the basis it accorded with the planning scheme’s requirements in relation to height, bulk and scale. A subsequent development application was lodged, seeking to take advantage of the planning scheme’s uplift provisions which allowed an increase in height if certain design and other requirements were met. Council’s approval of this application was appealed by local residents on the basis that the four-storey development did not qualify for the height uplift, primarily on the basis that additional bulk and scale would cause adverse impacts on the amenity of the neighbouring dwellings.
In allowing the appeal and finding that the proposed development was in fact non-compliant, the Court recognised the local identity and sense of place enjoyed by the residents of Hedges Avenue.
The issue critical to this appeal was whether the new proposed development was compliant with Council’s building height uplift provisions. A number of earlier Court appeals had considered these provisions and the challenges (typically by the adjacent residents) had been unsuccessful.
Was there non-compliance?
Of the several requirements that had to be met to engage the uplift provisions, the Court ultimately found that at least three were not met. The Court concluded that the non-compliances were serious in nature and pointed clearly towards a refusal of the proposed development. The Court recognised that concerns raised by local residents in their submissions against the proposed development were squarely directed towards these issues and such concerns proved to be determinative.
Local identity and sense of place
The distinct coastal architecture and luxury beachfront location of Hedges Avenue contributes to the street’s reputation as one of the most desirable addresses on the Gold Coast. It was important to the local residents’ case that the Court recognised and gave significant weight to the unique local identity and sense of place that gives Hedges Avenue its exclusive status.
The Court concluded that, if approved and constructed, the proposed development would not make a positive contribution towards the preservation of the locality’s character because its visual dominance and overbearing height, bulk and scale was found to have adverse impacts. In a locality predominated by one and two-storey residential buildings, a four-storey development such as this was found to be inconsistent with the character and amenity of the local area and disproportionate to nearby developments.
Other relevant considerations
In accepting the evidence of experts, the Court noted that regardless of the development’s quality of design and standard of appearance, it resulted in adverse visual amenity impacts through its cumulative non-compliances and overbearing visual dominance. The Court considered, but did not give much weight to, additional factors such as interface management, housing choice and affordability and proposed amendments to the planning scheme that may result in a reduction in height limits and down zoning for the local area.
The commitment demonstrated by local residents to fight for their interests was ultimately rewarded. The Court’s decision to refuse the proposed development reinforces and preserves the predominant built form and associated identity and sense of place that is enjoyed and coveted by these residents.
Tim has more than 20 years’ experience and leads Thynne + Macartney’s Planning + Environment team. He is a specialist in planning and environment law with expertise in litigation and advice concerning development, management and compliance in this complex and changing area of law. With experience in enforcement and prosecution proceedings for development and environmental offences, Tim also drafts and negotiates infrastructure agreements, responds to compulsory acquisitions, Land Court litigation and advises on approvals and compliance with Environmental Authorities. He works closely with his clients to understand their objectives and to guide them through the intricacies of planning and environment law to create the best result with minimal delay or obstruction.
Emily is a Law Clerk in the Planning + Environment team where she assists team members in legal research, filing, and drafting correspondence and court documents. Currently studying Law at UQ, Emily is on the way to completing a Bachelor of Arts (International Relations) and Bachelor of Law (Honours).