June update on Court Case challenging DA 776 Pacific Parade Currumbin (old Elephant Rock Café site). Now is the time for you to help save Currumbin
After obtaining advice from leading lawyers and barristers in town planning, the Court Case commenced in the Planning and Environment Court Brisbane on 5 March 2026 No 631 of 2026 by adjoining neighbour’s and Save Currumbin seeking to set aside development 2 approvals granted by GCCC to John Fuglsang Developments Pty Ltd the owner and developer of the site. The original MCU/2022/588 for 6 storeys was granted in 2024 (Development Application) and the OTH/2025/79 for 7 storeys over a wider block was granted in 2026 (Change Application).
The Applicants contend that all levels in the building plans (carpark level 1 to penthouse bedroom level 6 in the first approval of the Development Application and level 7 in the subsequent Change Application approval) are a “storey” as that term is defined in the Town Planning Scheme legislation, and so the building exceeds the 3 storey building height maximum for code assessment in the Neighborhood Centre Zone along Pacific Parade. Our lawyers basically say Council got the law wrong by counting storeys only in a “vertical plane”, a notion council had internally in a practice advisory note- but is not the law. So, this is a test case for future DA’s in Currumbin and other sensitive areas where developers ‘push the envelope’ and Council interpretations fail to protect significant vegetated ridges and public amenity.
The Originating Application to the Court also states that the council failed to take into account relevant considerations such as non-compliance with the Strategic Framework and other provisions of the Planning Scheme and failed to require public notices of the applications which robbed the public from the opportunity of making submissions.
The solicitor for the Applicant, Michael Connor, prepared and filed several affidavits including by director Paul Stone exhibiting expert reports of town planner Jake Storey and Public Amenity Expert Dr Nick McGowan as well as an affidavit by expert architect Mr. Lesley Curtis that supports the proposition about storeys in the building. We attach a link to the Affidavit of Mr. Curtis. We attach a link to the Affidavit of Mr. Stone.
Ben Job KC and Susan Hedge Barrister at Law prepared submissions to the Court. We attach a link to those submissions.
In them learned King’s Counsel and counsel state that Th Gold Coast City Council ought to have applied the law (Sch 4 and Sch 24 of the Planning Regulation) in relation to the calculation of storeys in the building and not relied on their Practice Note which is of no legal effect- indeed the reference in the administrative note to a” vertical plane” in calculating height in storeys was specifically removed from that legislation after 2016. Neither Version 9 of the Planning Scheme at the time of the first Development Application in 2022 nor Version 12 of the Planning Scheme at the time of the Change Application in November 2025 contain the words “vertical plane” in the definition of storey height. The GCCC in their reasons for approval state they relied on their own Practice Note. Interestingly the Council’s guidance note has since been removed from their website. It is the Applicant’s contention that the only wording of relevance is to be found in the Planning Regulation 2017. See para 38 b) of the submission:
- “ The Applicants rely on the second limb of the building height definition, that the “number of storeys in the building above ground level” is more than three. The Applicant submits that:
- A “space” between two floor levels or a floor level and a roof will capture the whole of a space on a horizontal plane, and does not refer to only part of a space considered in a vertical plane;
- In determining building height, the number of storeys in the whole building is considered, rather than the number of storeys in one vertical plane.”
The submissions go on to make the point at para 54 et seq that “the purpose (of the building height also supports a construction of the second limb of the definition that focuses on the whole building rather than a particular point)…. identified in the Strategic Framework… Where the Building height overlay map shows both storeys and metres, the lesser of the two shall apply, and any fraction which results from the calculations shall be rounded down to the nearest floor or partial floor. “…
In relation to local ridgelines and Currumbin, Part 3.8 A safe, well-designed city, section 3.8.2 Element -Landscape character provides:
“(8) The landscape significance of the major ridgelines and minor ridgelines, including Burleigh Ridge and Currumbin Hill, characterised by their steep slopes and native vegetation cover, is protected by retaining and enhancing vegetation cover where possible; restricting building heights; and ensuring building designs preserve the existing natural landform and complement the vegetated hillscape character. ”
The fine-grained nature of the Building height overlay maps also supports a conclusion that the planning scheme has been carefully designed to regulate building height as a way to regulate development in the city.
The change in level of assessment by virtue of the height of a development proposal reflects the importance of such intent, the importance of an assessment of taller development against the strategic framework, and a desire that the community be consulted in relation to such development.
The Applicants submit that therefore, the development the subject of the Development and Change Applications and Development and Change Approvals required impact (not code) assessment.
The Court required Council to file all the documents relevant to the Approval process including OTH/2025/12 that Council initially rejected on 13 Oct 2025 as ‘ not properly made’ (click here for full Document Bundle). The material disclosed by GCCC comprises of 8 volumes and over 4300 pages, 1600 pages of which were not previously available to the public. The Index is not very accurate, and many key documents are not actually named in the index and only ascertainable by scrolling through the email ‘chains’.
The Court made orders on 9 June as to the further timetable of the case which includes the Council and developer having to file material by the end of the month and for the Applicants to Reply by mid-July with a date for hearing to be set thereafter.
We have good prospects of winning this test case to limit height along Pacific Parade to 3-storeys and we are in the heat of the legal battle against a well-resourced council and developer. We appreciate all your support over the years but now we need one final push to the finish line.
If you want to help preserve Currumbin as we know it, now is the time- please click the links to donate (families) or take up sponsorships (businesses) before the end of June. This is a test case to stop high-rise like this from going up all along Pacific Parade- which will happen if the flawed approvals are allowed to stand as a precedent.
Paul Stone and Patrick Dixon
Directors Save Currumbin Ltd ABN 24 688 965 700