PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION: YQ Property Pty Ltd v Brisbane City Council & Ors [2020] QPEC 2

PARTIES: YQ PROPERTY PTY LTD (ACN 621 809 783) (Appellant)

v

BRISBANE CITY COUNCIL (Respondent)

and

AMY FRASER (First Co-Respondent)

and

KERRI MORGAN (Second Co-Respondent)

and

VANESSA COOK (Third Co-Respondent)

and

KYLIE MCKIERNAN (Fourth Co-Respondent)

and

BOB RANDLE (Fifth Co-Respondent)

and

DESLEY RANDLE (Sixth Co-Respondent)

and

JAMES BEATTIE (Seventh Co-Respondent)

and

DANIELLA POZZOLUNGO (Eighth Co-Respondent)

and

2

RODNEY SMITH (Ninth Co-Respondent)

and

CHRISTINE MCGILLIVRAY (Tenth Co-Respondent)

and

CRAIG LESLIE PETERS (Eleventh Co-Respondent)

and

PATRICIA GAIL PETERS (Twelfth Co-Respondent)

and

DAVID S HUGHES (Thirteenth Co-Respondent)

and

IAN WOODHALL (Fourteenth Co-Respondent)

and

TREVOR FIELDER (Fifteenth Co-Respondent)

and

LINDA FIELDER (Sixteenth Co-Respondent)

and

HELENE ANDERSEN (Seventeenth Co-Respondent)

and

NATALIE MCLEAN (Eighteenth Co-Respondent)

and

MARK THOMAS WINTERS (Nineteenth Co-Respondent)

FILE NO: 1409/19

DIVISION: Planning and Environment

PROCEEDING: Appeal

ORIGINATING COURT: Planning and Environment Court at Brisbane

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DELIVERED ON: 24 February 2020

DELIVERED AT: Brisbane

HEARING DATE: 28 January 2020 – 5 February 2020 and 13 February 2020

JUDGE: Everson DCJ

ORDER: The appeal will be allowed subject to the imposition of appropriate lawful conditions

CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for multiple dwellings in the low density residential zone

ASSESSMENT – compliance with the planning scheme – whether the proposed development complies with the planning scheme – whether there are relevant matters which justify approval – weight to be given to amendments and prospective amendments of the planning scheme

LEGISLATION: Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES: Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266

Bell v Brisbane City Council & Ors [2018] QCA 84

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16

Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37

Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46

COUNSEL: C Hughes QC and K Wylie for the appellant D Gore QC and M Batty for the respondent

SOLICITORS: MacDonnells Law for the appellant City Legal for the respondent

Introduction

[1] This is an appeal against the refusal by the respondent of a development application

for a development permit for a material change of use and building work for multiple

dwellings in respect of land located at 25, 27, 31 and 35 Eric Road Holland Park (“the

site”).

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[2] The proposed development has been modified at various times in the course of the

appeal and is currently for twenty-three four-bedroom dwellings taking access from

Eric Road with an internal road network (“the proposed development”).1 It retains

three significant trees and incorporates a deep planting plan and significant

landscaping.2

The site and the surrounding area

[3] The site is located in Holland Park which is an established suburb approximately six

kilometres southeast of the Brisbane CBD.3 The site is generally rectangular shaped

with an area of 6,859m2.4 It has a frontage to Eric Road of approximately 50 metres

and consists of four separate lots improved by a detached residential dwelling on each

lot.5 The site gradually slopes from Eric Road to the rear boundary. It contains

significant vegetation concentrated along the common boundaries of the lots.6

[4] In the immediate locality of Eric Road there is a predominance of detached residential

dwellings, although there are numerous multiple dwellings and non-residential uses

in the vicinity of the site.7 Adjoining the site to the north is a childcare centre and

adjoining it to the north is a significant well-established multiple dwelling

development.8 On the opposite side of Eric Road a short distance to the northeast is

another significant multiple dwelling development and a small goods factory. The

wider area surrounding the site contains a wide variety of land uses including a

mosque, aged care facilities, other multiple dwellings, other childcare centres, a

library, a primary school and a crematorium.9

[5] The site is in proximity to Logan Road which is a Selected Transport Corridor

pursuant to the respondent’s planning scheme (“the planning scheme”).10 The Logan

Road District Centre is located approximately 450 metres west of the site.11 There

are several bus stops within 400 metres walking distance of the site.12 I accept that

1 Exhibit 35. 2 Ibid and Exhibit 17, pp 74-82. 3 Exhibit 5, para 13. 4 Ibid, para 11. 5 Ibid. 6 Ibid. 7 Exhibit 6, p 29. 8 Exhibit 5, para 14 and T6-10 ll 1-11. 9 Ibid, para 17 and Figure 3. 10 Brisbane City Plan 2014. Exhibit 5, para 48. 11 Ibid, para 19. 12 Exhibit 6, p 7.

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the site has good access to high quality public transport and is close to a

neighbourhood centre as well as the district centre referred to above.13

[6] The block in which the site is located is zoned low density residential pursuant to the

planning scheme. It includes the adjacent childcare centre and the well-established

multiple dwelling use which adjoins it. Most of the land in the vicinity of the site is

also in the low density residential zone, however there are also significant areas zoned

for community facilities. There are also notable areas in the low-medium residential

zone, including the multiple dwelling development and the factory on the opposite

side of Eric Road.14 The site is also within the Holland Park - Tarragindi district

neighbourhood plan area.

[7] At the time the development application was lodged the site was included in the

biodiversity areas overlay in the general ecological significance sub-category.15 In

the intervening period the biodiversity overlay mapping has been amended to be less

extensive however a significant portion of the site remains subject to it.16

The proposed development

[8] Twenty-three four-bedroom dwellings are proposed in a group title format with

access being taken from Eric Road. Some of the dwellings are attached and some are

not. Only four dwellings front Eric Road and these are proposed to be individual in

their appearance and separated from each other.17 With the exception of dwellings

five and six which are situated in the middle of the site, and indicated as being three

storeys, the dwellings are all two storeys. Regardless of the number of storeys, none

of the proposed dwellings exceeds 9.5 metres above natural ground level.18 Because

of the slope of the site, the retention of significant trees, and the intended landscaping

and deep planting, most of the built form will not be readily visible from Eric Road.19

13 Ibid and Exhibit 5, Figure 3. 14 Exhibit 5, Figure 7. 15 Exhibit 5, para 51 and Exhibit 22, para 24. 16 Exhibit 22, para 29. 17 Exhibit 35 and Exhibit 17, p 48. 18 Ibid. 19 Ibid.

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The statutory assessment framework

[9] Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is

by hearing anew,20 and the appellant must establish that the appeal should be

upheld.21 Section 46 of the PECA addresses the nature of an appeal and relevantly

provides:

“(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—

(a) the P&E Court were the assessment manager for the development application; and

(b) the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”

[10] As the proposed development was impact assessable, s 45 of the Planning Act 2016

(“PA”) relevantly provides that the assessment must be carried out against the

relevant assessment benchmarks in a categorising instrument for the development

which, in the circumstances of the appeal before me, are the relevant provisions of

the planning scheme.22 Furthermore, the assessment may be carried out having regard

to any other relevant matter, other than a person’s personal circumstances, financial

or otherwise.23 Of particular significance in determination of this appeal, s 45 also

provides:

“(7) The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.

(8) However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to— (a) if the statutory instrument or other document is amended

or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document.”

20 Planning and Environment Court Act 2016 (Qld) s 43. 21 Ibid s 45(1)(a). 22 Planning Act 2016 (Qld) s 45(5)(a)(i). 23 PA s 45(5)(b).

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[11] The court in determining an appeal about a development application is conferred a

wide discretion pursuant to s 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide— (a) to approve all or part of the application; or (b) to approve all or part of the application, but impose

development conditions on the approval; or (c) to refuse the application.”

[12] In undertaking this task it is important to have regard to the observations of

McMurdo JA in Bell v Brisbane City Council & Ors that:

“…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”24

However, as Williamson QC DCJ recently observed in Ashvan Investments Unit Trust

v Brisbane City Council & Ors:

“An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s.60(3) of PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. …. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s.60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.”25

[13] The proper approach to non-compliance with the planning scheme in the decision

making process was recently explained by Kefford DCJ in Murphy v Moreton Bay

Regional Council & Anor in the following terms:

“Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice. Not

24 [2018] QCA 84 at [66]. 25 [2019] QPEC 16 at [53].

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every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.”26

The relevant provisions of the planning scheme

[14] At the time the development application giving rise to this appeal was properly made

on 8 January 2019, version 13.00/2018 of the planning scheme was in force.27 Unless

specifically stated otherwise herein this version remains in force. Relevantly, it

provides that where there is an inconsistency between provisions, the strategic

framework prevails over all other components, then overlays prevail over all

components except the strategic framework, then neighbourhood plan codes prevail

over zone codes, which in turn prevail over use codes and other development codes.28

As the proposed development is impact assessable it is to be assessed having regard

to the whole of the planning scheme to the extent relevant. 29 When applying various

codes, code assessable development that complies with the purpose, overall outcomes

and the performance outcomes or acceptable outcomes of the code complies with the

code.30

[15] Within the strategic framework there are a number of broad statements which are

relevant to the proposed development. In particular, pursuant to Theme 2 the strategic

outcomes are stated to include:

“(1) The strategic outcomes for an outstanding lifestyle city are: … (g) Brisbane provides housing choice which allows people

to live in close proximity to their place of work and support their local economies, services and businesses.

(h) Brisbane’s major new housing opportunities will be provided within the existing urban area and form of the city by infill and other types of redevelopment. This will ensure opportunities for residents to enjoy easy

26 [2019] QPEC 46 at [22]. 27 Exhibit 3, p 610. 28 Section 1.5, Exhibit 4, pp 26-27. 29 Ibid s 5.3.3, Exhibit 4, pp 106-107. 30 Ibid.

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access to employment, goods, services, community facilities and also to protect Brisbane’s green edges.”31

[16] Further guidance is provided in s 3.4.3 headed “Brisbane’s housing and

accommodation choices.” Of particular relevance, Table 3.4.3.1 provides for the

following specific outcomes and land use strategies:

Specific outcomes Land use strategies … …

SO2 Brisbane’s housing is diverse in type and form, offering choice to different household types and income levels and individuals with specific housing needs.

L2 Residential development contributes to housing diversity, particularly supporting ageing in place and assisted living and housing suited to households on different incomes, within each neighbourhood and across the city, as outlined in the applicable zone or neighbourhood plan.32

[17] There are also a number of universal statements of planning strategy contained in

Theme 5 headed “Brisbane’s CityShape”. In s 3.7.6, Element 5.5 headed “Brisbane’s

Suburban Living Areas” contains a number of specific outcomes and land use

strategies of general application.33

[18] As noted above, the site is located within the biodiversity areas overlay and included

in the general ecological significance sub-category. Accordingly, the biodiversity

areas overlay code applies. It is stated that where this code includes performance

outcomes or acceptable outcomes that relate to ecological assessment guidance is

provided in the biodiversity areas planning scheme policy.34

[19] The following overall outcomes of the biodiversity areas overlay code have been

identified as being relevant to the determination of the appeal:

“(2) The purpose of the code will be achieved through the following overall outcomes: (a) Conservation, consolidation, connection and restoration

of the network of lands with in-situ values or areas of strategic biodiversity value within Brisbane.

…

31 Section 3.4.1, Exhibit 4, p 45. 32 Ibid, p 54. 33 Ibid, pp 84-87. 34 Section 8.2.4.1, Exhibit 4, pp 164-165.

10

(d) Protection, enhancement and restoration of koala habitat and the facilitation of safe koala movement to assist in the long-term retention of a viable koala population within South East Queensland.

(e) Avoidance of impacts to biodiversity values, ecological features and ecological processes through the placement of development within a development footprint plan.

(f) All reasonable on-site measures to avoid and mitigate impacts on biodiversity values from the development have been, or will be, undertaken.”35

[20] So far as performance outcomes and acceptable solutions are concerned, PO6 and

PO9 have also been identified as relevant. They provide:

If a site is wholly or partly in the General ecological significance sub-category

PO6 Development ensures that ecological features and ecological processes, koala habitat trees, areas of strategic biodiversity value and wetlands within the General ecological significance sub-category area are protected, conserved and restored to ensure the area’s long-term viability. Note – Where proposing development within the High ecological significance sub-category or the General ecological significance sub-category, refer to section 8.2.4.1. Application of this code with regard to satisfying the Purpose of the code and this performance outcome. The proposed solution must provide the same level of service without significant disruption of biodiversity values or outcomes.

AO6.1 … (b) Complies with AO6.2 and

AO6.3.

AO6.2 Development ensures that the development footprint, design and layout are informed by an ecological assessment which: (a) identifies and evaluates

biodiversity values, ecological features (including significant vegetation communities listed in Table 8.2.4.2.B, significant flora species listed in Table 8.2.4.3.C, or significant fauna species listed in Table 8.2.4.3.D), koala habitat trees, areas of strategic biodiversity value, waterways and wetlands;

(b) identifies the likely impacts of the development to biodiversity;

(c) outlines how any potential impacts on biodiversity will be avoided and mitigated.

AO6.3 Development ensures that the development footprint, design and

35 Ibid, p 165.

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layout conserves ecological features…significant flora species listed in Table 8.2.4.3.C, or significant fauna species listed in Table 8.2.4.3.D), koala habitat trees…

… If a site is wholly or partly in the High ecological significance sub-category or the General ecological significance sub-category, other than for a dwelling house

PO9 Development which has or is likely to have a significant residual impact on a matter of State environmental significance or a matter of local environmental significance, after all reasonable on-site mitigation measures have been or will be undertaken, provides an environmental offset. Note – Environmental offsets are provided in compliance with the Queensland environmental offsets framework and the Offsets planning scheme policy.

AO9 No acceptable outcomes (sic) is prescribed.36

[21] Ecological features are defined as including “significant fauna species” which are

defined in Table 8.2.4.3.C.37

[22] In the Holland Park - Tarragindi district neighbourhood plan code the following

overall outcomes have been identified as being relevant:

“(3) … (a) A mix of housing densities and types serves the needs

of the community, especially the neighbourhood plan area’s young adult and elderly populations. Identified character housing is retained with higher density housing encouraged in proximity to major employment nodes and public transport.

… (g) Development is of a height, scale and form which is

consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.” 38

36 Ibid, pp 170-171 and 173. 37 Ibid, pp 344 and 178-183. 38 Ibid, pp 139-140.

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[23] In the low density residential zone code the following provisions have been identified

as relevant:

“6.2.1.1 Low density residential zone code … (3) Zone role overall outcomes are:

(a) Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular: (i) Theme 2: Brisbane’s outstanding lifestyle,

Element 2.1 – Brisbane’s identity and Element 2.2 – Brisbane’s housing and accommodation choices;

(ii) Theme 5: Brisbane’s CityShape and Element 5.5 – Brisbane’s Suburban Living Areas.

(4) Development location and uses overall outcomes are: … (b) Development provides for other housing types at a

house scale to provide housing diversity offering choice to different household types and individuals to suit residents through different life-cycle stages.

(c) Development, other than a dwelling house, including dual occupancy or a multiple dwelling is not accommodated within this suburban setting unless on a well-located site of over 3,000m2.

… (g) Development reflects and supports the high level of

comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.

… (5) Development form overall outcomes are:

(a) Development is of a form and scale that reinforces a distinctive subtropical character of low rise, low density buildings set in green landscaped areas.

… (f) Development responds to land constraints, mitigates

any adverse impacts on environmental values and addresses other specific characteristics, as identified by

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overlays affecting the site or in codes applicable to the development.” 39

[24] Numerous provisions of the multiple dwelling code have been identified as relevant

including the following overall outcomes:

“(2) The purpose of the code will be achieved through the following overall outcomes: … (c) Development in the Low density residential zone is

located on larger sites that are accessible and well serviced by public transport and infrastructure.

… (e) Development has a bulk, scale, form and intensity that

integrates with the existing and intended neighbourhood structure for the area as expressed by zone, zone precinct and neighbourhood plan outcomes, and is consistent with: (i) the location and street context of the site; (ii) its proximity to an activity centre, higher capacity

public transport services, or other community facilities;

(iii) the capacity of infrastructure. … (g) Development in the Low density residential zone or

Infill housing zone precinct of the Character residential zone includes a range of detached and attached building forms and is of an intensity that reflects the lower density form and character of these zones.

(h) Development is of a height that is appropriate to the strategic and local context and meets community expectations consistent with the following: … (viii) 2 storeys in the Low density residential zone.

(i) Development provides setbacks and separation of buildings that contribute to the amenity of residents within and adjoining the site and to Brisbane’s high-quality subtropical streetscapes and public spaces.

… (t) Development provides design elements that retain and

support local character identity and strengthens site features, such as views, heritage, significant vegetation

39 Ibid, pp 129-131.

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or significant corners, particularly where a landmark site.” 40

[25] The following performance outcomes and acceptable outcomes have also been

identified as relevant:

PO5 Development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to: (a) existing buildings that are to

be retained; (b) significant infrastructure or

service constraints such as tunnels;

(c) existing and proposed building heights in the local area and street;

(d) adjoining buildings and separation of buildings necessary to ensure impacts on residential amenity and privacy are minimised;

(e) the impact of slope.

AO5 Development is constrained within the building envelope of the site created by applying: (a) the maximum building height

Table 9.3.14.3.B; (b) front, rear and side boundary

setback requirements in Table 9.3.14.3.C;

(c) car parking boundary setback requirements in Table 9.3.14.3.E;

(d) building separation requirements in Table 9.3.14.3.F;

(e) acceptable outcomes for building height transitions where required.

Refer to Figure b and Figure c. Note – This acceptable outcome can be demonstrated by the preparation of a building envelope plan, elevations and sections.41

… …

PO8 Development separates buildings from existing or future buildings within a site or on an adjoining site to: (a) be consistent with the form

and character intent for the local area;

(b) protect residential amenity including access to natural light, sunlight and breeze;

AO8.1 Development provides building placement and design that: (a) complies with Table

9.3.14.3.F; or (b) positions the primary balcony

or private open space to face the street frontage or rear boundary or adjoining public open space;

40 Ibid, pp 223-225. 41 Ibid, p 227.

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(c) provide visual privacy to reduce the need for fixed screening.

(c) offsets balconies or habitable rooms so that they are positioned outside the cone of vision of existing or approved habitable rooms or outdoor spaces.

Refer to Figure g and Figure h.42

… …

PO25 Development ensures significant vegetation and large subtropical shade trees are protected or established to balance the bulk, scale and form of the building and provide a subtropical landscape setting including natural shade to mitigate heat island effects.

AO25.1 Development ensures that the location of a new building, car parking, driveway or a crossover will not adversely impact the long-term viability of trees to be retained.43

… …

PO51 Development is located on a site that: (a) has sufficient area to achieve

an integrated development outcome with built form transitions to the character of the adjoining neighbouring dwelling houses or low density area;

(b) is conveniently located near shops, public transport services and other community facilities;

(c) has sufficient infrastructure capacity.

AO51 Development is located: (a) on a site with a minimum site

area of 3,000m2; (b) within 400m walking distance

of a public transport stop with 20-minute frequency peak-hour services;

(c) within 800m walking distance of an existing neighbourhood, district, major or principal centre;

(d) that is not gated; (e) with sufficient infrastructure

capacity. 44

[26] I have not taken the time to set out all the detail called up by the acceptable outcomes

listed above. Suffice to say it is uncontroversial that Exhibit 1 demonstrates

compliance with them except to the extent discussed below.

42 Ibid, p 229. 43 Ibid, p 239. 44 Ibid, pp 255-256.

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The disputed issues

[27] The issues which remain for determination may be summarised as follows:

1. Whether the proposed development would:

(a) be of unacceptable height, bulk, scale, form, character, intensity and

incorporate inadequate separation of buildings;

(b) be inconsistent with community expectations; and

(c) significantly impact on the immediate area surrounding the site to an

unacceptable degree.

2. Whether the proposed development will result in unacceptable ecological

impacts;

3. Whether the proposed development provides adequate car parking spaces

having regard to amendments to the planning scheme after the development

application was lodged;45

4. Whether the proposed development should be refused because it does not

accord with the major amendment to the planning scheme contained in major

amendment package H adopted by the respondent on 11 February 2020

(“package H”) which removes provisions allowing for multiple dwellings in

the low density residential zone;

5. Whether there are relevant matters that justify approving the proposed

development, namely:

(a) the extent of compliance with quantitative and qualitative standards in

the planning scheme specifically relevant to development for multiple

dwellings on the site;

(b) that the proposed development will not adversely affect the amenity

or character of the locality and rather make a positive contribution to

it;

(c) that the proposed development comprises appropriate infill

development in proximity to the city which will contribute to housing

choice and affordability, providing different housing types to suit

residents through different life stages;

(d) the fact that the majority of the interior of the development will not be

visible from adjoining streets; and

45 City Plan 2014, Version 17.00/2019.

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(e) the retention of three significant trees together with the removal of

exotic species and the provision of deep planting and landscaping

incorporating native species in circumstances where the site is of

limited environmental value.

[28] The respondent also asserts that the proposed development would be contrary to the

purpose of the PA. This amorphous allegation is not developed in either the written

or the oral submissions of the respondent. In any event, as I observed in Harta Pty

Ltd v Council of the City of Gold Coast:

“The difficulty with the arguments of both parties in this regard is that the purpose of the PA and what is said to advance it are expressed in such general terms, that such arguments do not assume any real significance or add in any way meaningful way to the issues I need to resolve in this appeal.”46

[29] Those comments are most apposite here and I do not propose to address this issue,

particularly in circumstances where it has not been meaningfully developed by the

respondent in the course of the hearing.

Built form, character and amenity

[30] The co-respondents actively took part in the hearing of the appeal. They articulated

their concerns which were principally based around considerations of visual amenity,

ecology, character and inadequate car parking provision, in a polite and measured

way. I have taken into account their concerns in weighing the issues for determination

in this appeal.47

[31] As a starting point, however, it is clear that the proposed development is a use clearly

contemplated by the planning scheme in force at the time the development application

was properly made. Housing choice allowing people the opportunity to live closer to

the city is clearly contemplated in the strategic outcomes for Theme 2 of the strategic

framework. This theme is developed further in SO2 and L2 of Element 2.2 in section

3.4.3 of the planning scheme.48 When regard is had to the more fine grained planning

provisions in the low density residential zone code it is clear that the proposed

development is contemplated by overall outcomes (4)(b) and (c), the latter provision

46 [2019] QPEC 37 at [28]. 47 Exhibit 26. 48 Exhibit 4, p 54.

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nominating a well-located site of over 3,000m2.49 The same may be said when

relevant provisions of the Holland Park - Tarragindi district neighbourhood plan code

are considered and in particular overall outcome 3(a).50 I accept without reservation

the evidence of Ms Morrissy, the town planner who gave evidence on behalf of the

appellant, that the site is appropriately located from the perspective of access to public

transport and proximity to shops and community facilities.51 Moreover it has been

demonstrated that, subject to proposed dwellings five and six being technically three

storeys not two storeys as contemplated in AO2(h) of the multiple dwelling code,52

and there being uncertainty as to whether a public transport stop has a 20 minute

frequency peak hour service as nominated by AO51 therein,53 the proposed

development either meets or exceeds the quantitative standards for such a

development on the site.54

[32] In terms of character, both town planners who gave evidence, Ms Morrissy and

Mr Buckley, who was called by the respondent, agreed that while there were multiple

dwellings already present in the neighbourhood of the site, detached dwelling houses

were predominant and they would still be predominant even if the proposed

development proceeded.55 Ultimately, Mr Buckley clarified his position as being that

the significant vegetation, the subject of the biodiversity mapping, contributed to the

character of the area and that the proposed development was unacceptable because it

compromised this.56

Ecological impacts

[33] Two ecologists gave evidence. Mr Moffitt gave evidence on behalf of the appellant

and Dr Watson gave evidence on behalf of the respondent. They agreed that the site

had ecological values which they described as “generally low”.57 While there was

evidence from the co-respondents of the sighting of koalas on the site some years

ago,58 I accept the evidence of Dr Watson who stated that it was “not a site that you

49 Ibid, p 129. 50 Ibid, p 139. 51 Exhibit 6, p 7. 52 Exhibit 4, p 223. 53 Ibid, p 255-256. 54 Exhibit 1. 55 T6-6 ll 30-47 and T6-12 ll 15-21. 56 T6-18 l 35 and T 6-19 l 5. 57 Exhibit 12, para 55. 58 Exhibit 26.

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would be trying to attract koalas to” given the dangers to them presented by the

isolated urban setting.59 I also accept the evidence of Mr Moffitt that the broad

mapping of the site requires ground truthing in circumstances where much of the

mapped area includes significant weed species and areas of open grass. Ironically, it

also included a driveway which Mr Moffitt described as “actually an avenue of weeds

with a driveway in the middle”.60 Ultimately, the only identified issue of ecological

significance in respect of the site was the impact of the proposed development on

seven native trees.61 I accept the evidence of Dr McGowan, who gave visual amenity

evidence on behalf of the respondent, that “a number of the trees make a significant

contribution to local character values and amenity”.62 Each of the seven native trees

was examined by the two arborists who gave evidence, Mr Young who gave evidence

on behalf of the appellant and Mr Hobbs who gave evidence on behalf of the

respondent. There were three very good specimens, a large Ficus macrophylla

(Moreton Bay Fig), a Lophostemon confertus (Queensland Brush Box) and a

Corymbia intermedia (Pink Bloodwood).63 They are each to be retained should the

proposed development proceed. The other four trees which have been identified as

being of lesser quality are to be removed. No environmental offset as contemplated

by PO9 of the biodiversity areas overlay code is proposed.

[34] I accept that the Moreton Bay Fig, a very large tree, is highly visible,64 and that the

Queensland Brush Box and the Pink Bloodwood are particularly significant to the site

and the wider community, with trees of their size and species in the developed urban

environment an extreme rarity.65 While I accept that the other four trees are

considered significant flora species pursuant to Table 8.2.4.3.C of the planning

scheme,66 and therefore, ecological features as defined therein,67 that does not in my

view, entitle them to blanket protection as a consequence of PO6 and PO9 of the

biodiversity areas overlay code.

59 T6-80 ll 1-5. 60 T6-49 ll 40-45. 61 Exhibit 38, appendix 2. 62 Exhibit 7, p 25. 63 Exhibit 38, appendix 2. 64 Ibid. 65 Exhibit 38, para 17. 66 Exhibit 4, p 178-183. 67 Ibid, p 344.

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[35] The appellant proposes significant deep planting including three compensatory

Eucalyptus tereticornis (Queensland Blue Gums) which Mr Moffitt is confident will

achieve a minimum of a 12m canopy and a 15m height.68 It is proposed that the deep

planting and landscaping will establish a prominent green spine through the site using

native species in deep planting and landscaped areas.69 Mr Moffitt envisages the

rehabilitation of the site through the proposed planting program, replacing current

weed species which are not of any particular ecological value, with native species

endemic to the landscape which would provide movement pathways for fauna, such

a possums, gliders, birds and bats.70 Therefore on the facts before me the most

significant native vegetation on the site will be retained and the ecological values of

the site will be enhanced through the proposed deep planting and landscaping. In

these circumstances the minor non-compliance with the identified assessment

benchmarks in the biodiversity overlay code does not justify a refusal of a proposed

development.

[36] Moreover, the low intensity of the proposed development and the significant areas of

landscaping, deep planting and preserved vegetation are such that legitimate amenity

concerns are appropriately addressed and in particular I am satisfied that there is

compliance with overall outcomes 5(a) and (f) of the low density residential zone

code and PO25 of the multiple dwelling code.

Relevant matters

[37] The relevant matters relied upon by the appellant justifying approval of the proposed

development generally recite the extent to which it complies with the benchmarks in

the planning scheme at the date the development application was properly made, and

point to an absence of impacts or an enhancement of amenity particularly from the

perspective of the ecological outcomes discussed above.

[38] I do not find the extent to which it complies with the planning scheme particularly

persuasive in this regard. I do, however find the extent to which the proposed

development confers ecological benefits is a relevant matter in favour of approval.

As noted above, not only will the most significant and valuable native trees be

preserved but there will be a notable improvement of native flora site coverage as a

68 Exhibit 14, para 12. 69 Ibid, paras 14-16. 70 T6-51 ll 1-20.

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consequence of the deep planting and landscaping plans which are discussed above.

In terms of deep planting the relevant assessment benchmark pursuant to AO32 of the

multiple dwelling code requires a minimum of 10 per cent of the site area to be subject

to the planting. The proposed development contemplates approximately 30 per cent

of the site area being utilised in this way and in my view, this is of significance.71

[39] There are other areas where the proposed development exceeds what is contemplated

by the assessment benchmarks in the planning scheme to a significant degree. Of

note, pursuant to acceptable outcomes in the multiple dwelling code, site cover is to

be up to 45 per cent and dwelling density requirements are not to exceed one dwelling

per 200m2 of site area. What is proposed is a site cover of only 35 per cent and one

dwelling per 290m2.72 Similarly, acceptable outcomes concerning communal open

space are significantly exceeded where the minimum prescribed is, relevantly, 5 per

cent and 9.6 per cent is proposed.

[40] I find that these are relevant matters which favour approval of the proposed

development in circumstances where there is no significant non-compliance with the

planning scheme other than the extent to which it contemplates the removal of four

unremarkable native trees.

Amendments of the planning scheme

[41] Firstly, I will address the amendment of the transport, access, parking and servicing

planning scheme policy which commenced on 29 November 2019.

[42] As noted above, s 45 of the PA requires the court to assess the development

application having regard to the planning scheme “as in effect when the development

application was properly made”,73 but goes on to state that the court “may give the

weight” the court “considers is appropriate, in the circumstances” to the “amended or

replacement” planning scheme.74 The discretion conferred is wide and permissive.

It is mandatory for the court to assess the proposed development against the planning

scheme when the development application was properly made and therefore the

starting point is that an applicant is entitled to the benefit of the assessment

71 Exhibit 1. 72 Ibid. 73 Planning Act 2016 (Qld) s 45(7). 74 Ibid 45(8).

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benchmarks in place at this time unless the court considers it appropriate in the

circumstances to give weight to any amendments or a replacement planning scheme.

[43] Suffice to say the proposed development went from significantly exceeding the

required car parking spaces to a current shortfall of 12 resident car parking spaces and

two visitor spaces as a consequence of the amendment. This is an extreme change in

terms of policy expectations with alarming consequences, considering that the

exceedance in terms of the provision of parking has now become the opposite. In

determining what weight, if any should be given to this amendment I am guided by

the traffic engineers who gave evidence in the appeal. Mr Somerville gave evidence

on behalf of the appellant and Mr Trevilyan gave evidence on behalf of the

respondent. Mr Somerville stated that he was not concerned about an unacceptable

risk of on-street parking arising from this development if the amendment to the

planning scheme was not given effect.75 Mr Trevilyan ultimately conceded that the

provision of two car parks per unit as proposed by the appellant is “certainly a

common allocation and it’s broadly accepted as a number which satisfies the demands

of most residents”.76

[44] In the circumstances I am satisfied that the proposed development provides adequate

parking and I do not propose to give any weight to the amended transport, access,

parking and servicing planning scheme policy.

[45] The consequences of the other amendment are much more far reaching. On 4

September 2018 the respondent resolved to “make a major amendment to Brisbane

City Plan 2014 to remove provisions allowing multiple dwellings in the low density

residential zone”.77 This was package H. All references in the planning scheme

which encouraged multiple dwellings in the low density residential zone were to be

removed. An example is to be found in the overall outcomes in the low density

residential zone code which now include “Development maintains a low density

character in which multiple dwellings are not accommodated”.78 There is an identical

amendment to the overall outcomes for the neighbourhood plan code.79 Package H

75 T4-30, ll 40-47, T4-31, ll 1-10. 76 T4-51, ll 9-13. 77 Affidavit of Jonathon Grant Evans, sworn 28 January 2020, Ex “JGE-10”. 78 Ibid, p 250. 79 Ibid, p 232.

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proceeded to adoption by council resolution on 11 February 2020.80 This occurred

after the scheduled completion of the hearing of the appeal and it has still not become

law in the terms of s 45(8) of the PA,81 however the last steps for this to occur appear

to be a formality and imminent.82

[46] The appropriateness of taking into account draft planning controls is well established.

It is known as the Coty principle which can be traced back to the decision in Coty

(England) Pty Ltd v Sydney City Council,83 where council had a draft planning

scheme which sought to preserve residential accommodation in an area where an

approval was sought for a large and permanent industrial building. The Land and

Valuation Court of New South Wales held that an approval of the proposed industrial

building would “cut across to a substantial degree the considered conclusion of the

respondent council… that the whole block should be zoned Residential” and that it

would “make the ultimate decision more difficult in that the erection of the new

factory would so disturb the existing balance and proportion of residential and non-

residential development and user in the block”.84

[47] Similar considerations arose in Lewiac Pty Ltd v Gold Coast City Council,85 where

the Court of Appeal upheld the decision of this court to give effect to a draft strategic

plan, “adopted and prepared consistently with a policy that had been adopted by the

Council for a little over three years”.86 The development application in question

sought to rezone land which had been designated with a six storey height limitation

pursuant to the draft development control plan such that a ten storey limit would

apply.87

[48] Both Coty and Lewiac illustrate the importance of draft planning controls being given

effect where the intended development would permanently change the desired

character and amenity of the area in question. The facts before me are different. I

am satisfied, having regard to the evidence, including the opinions of both town

80 Exhibit 42. 81 Respondent’s written submissions Re Hiatus Period, Ministers Guidelines and Rules s 22, Schedule

5, Exhibit 40, pp 20 and 68. 82 They include giving public notice of the amendment, ibid 22. The commencement date is still

unclear, Exhibit 41. 83 (1957) 2 LGRA 117 84 Ibid at 125. 85 [1996] 2 Qd R 266. 86 Ibid at 268 per Thomas J. 87 Ibid.

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planners, that the area containing the site already contains a number of uses including

multiple dwellings and that the character will not change if the proposed development

is approved. The proposed development will merely be another multiple dwelling

development in an area where there are many, including another on similarly zoned

land in the same block and another on the opposite side of the street. As both Ms

Morrissey and Mr Buckley observed, despite the mixed character of the area in terms

of the uses which are present, detached dwelling houses predominate and this will

continue to be the case even if the proposed development proceeds.

[49] In exercising my discretion whether or not to give effect to package H, I need to take

into account that the development application was properly made on 8 January

2019,88 more than four months after the respondent resolved to make the major

amendment in accordance with package H. I also need to take into account that upon

it becoming law, the appellant would have the right to make a superseded planning

scheme application requesting the respondent accept, assess and decide a

development application under the planning scheme which applied prior to package

H taking effect, pursuant to s 29 of the PA. This would have the effect of either

preserving its development rights, or entitling it to compensation should the

respondent decide not to agree to the request.89 These rights nonetheless occur in

circumstances where the appellant is presumed to have the benefit of the law in place

at the time the development application was properly made and where it has incurred

the expense of pursuing the development application and this subsequent appeal.

[50] Where there are already numerous multiple dwellings in the vicinity of the site, the

proposed development is well designed and exceeds numerous benchmarks with

respect to site cover, density, and deep planting, the overall impacts of the proposed

development will, in my view be minimal in terms of the amenity of the

neighbourhood. Indeed I have found there will be an enhancement of ecological

values. Conversely, the amendments contemplated by package H have city-wide

effect. They are not focussed particularly on the area where the site is located.

Accordingly, I am of the view that the proposed development will not either cut across

to a substantial degree the planning strategy evident in the amendment or make it

more difficult for the respondent and the court to give effect to this planning strategy

88 Exhibit 3, p 610. 89 PA s 31.

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in the future. Given the matters discussed above, I do not consider it appropriate to

give effect to package H.

Conclusion

[51] The development substantially complies with the relevant assessment benchmarks in

the planning scheme in force at the time the development application was properly

made. To the extent that it does not comply with various provisions of the

biodiversity overlay code, I am satisfied that the ecological outcomes as a

consequence of the preservation of the most significant native trees, the extensive

deep planting and landscaping are sufficient to justify the approval of the proposed

development.

[52] The appeal will be allowed subject to the imposition of appropriate lawful conditions.