Planning and Environment Quarterly Case Review – July 2022

The second Quarterly Case Review for 2022 is here. We wrap up interesting and topical cases from the Courts.

We have passed the halfway point for the year and it is time for our next Quarterly Case Review. The Courts have published a raft of new judgments in the last few months and in this issue, we have extracted:

• a Court of Appeal decision relating to the definition of “storey”;
• a Court of Appeal decision about an “other change” application to an existing development approval; 
• a detailed analysis from the Planning and Environment (P&E) Court about how to assess an application for preliminary approval for a material change of use and an associated variation request;
• an interesting decision about where a condition limiting the life of an approval, tipped the planning discretion exercised by the P&E Court in favour of a development that was otherwise contrary to important planning policies in a range of planning instruments; and
• a judgment about the building height uplift provision in Gold Coast City Plan.

Robertson v Brisbane City Council & Ors [2022] QCA 45 [2022] 14 QLR 

On 1 April 2022, the Court of Appeal handed down its reasons in Robertson v Brisbane City Council & Ors [2022] QCA 45, relating to a decision of the P&E Court which was heard in 2021. The case concerned the definition of “storey” in City Plan.  

The primary case was commenced by the owners and occupiers of a building which was neighbouring a proposed development site. The applicants sought a declaration that the decision of the Brisbane City Council to approve a development application for a material change of use for a three-storey apartment building, was invalid and of no effect. The key issue in the primary decision concerned whether an area on the rooftop of the proposed building constituted a fourth storey, thereby triggering impact assessment, rather than code assessment.  

The dispute focused on a 15m2 area, outside the lift to the rooftop. The area was covered by a roof and enclosed by a door. The question in the P&E Court was whether that fell within the definition of “storey” under the Brisbane City Council City Plan 2014 (City Plan) where a storey:

“(a.)  means a space within a building between 2 floor levels, or a floor level and a ceiling or roof, other than—
        i.    a space containing only a lift shaft, stairway or meter room; or
        ii.   a space containing only a bathroom, shower room, laundry, toilet or other sanitary compartment; or
        iii.  a space containing only a combination of the things stated in subparagraph (i) or (ii); or
        iv.  a basement with a ceiling that is not more than 1m above ground level; and

(b.)    includes—
        i.   a mezzanine; and
        ii.  a roofed structure that is on, or part of, a rooftop, if the structure does not only accommodate building plant and equipment.”

In the P&E Court, the focus of the argument was subparagraph (a) of the definition above and whether the space was within the building and containing only a lift shaft. The primary judge found that the “subject area” was merely a space where people could wait for an elevator or step into when exiting the lift or walking up the stairs, and could not be a space for another purpose (such as being part of an entertainment area). The primary judge found that the “subject area” did not constitute a storey having regard to paragraph (a)(iii) of the definition. He dismissed the application.   

In the Court of Appeal, the focus of the argument was subparagraph (b) of the definition and whether the area was a roofed structure that was on, or part of, a rooftop. Fraser JA determined that the area was within the building, as it was inseparably connected with the rest of the interior to the building by the lift shaft. It could not be both “within” the building, and at the same time “on or part” of the rooftop.  McMurdo JA held that the area was a space within a building between a floor level and a ceiling. As such, it would have been a storey but for the exclusion in paragraph (a)(iii) of the definition. The P&E Court’s decision that the area fell within the ambit of paragraph (a)(iii) of the definition was not challenged, and the Court of Appeal agreed it was correct. The Court of Appeal determined that the subject area was not a distinct structure on, or part of the roof. It was a part of the building.   

For those reasons, the Court of Appeal found:

• the area was not a storey as defined;
• the proposed development was three storeys, and not four; and
• the P&E Court was correct to dismiss the Applicants’ application.  

Upan Company Pty Ltd v Gold Coast City Council [2022] QCA 75

This recent Court of Appeal decision relates to an “other change” application in relation to a 20-storey high-rise residential building at Main Beach.   

The Applicant, Upan Company Pty Ltd, made an “other change” application. The external treatment of the two buildings was vastly different, meaning the “minor change” process was not available. The suite of changes proposed also included an increase in overall building height (by 3.75m), changes to setbacks, and a reduction in the extent of transition in building height. Council refused the “other change” application and that decision was then appealed to the P&E Court. That decision was ultimately upheld by the P&E Court and the Court of Appeal.   

The chronology of events is interesting. After the initial hearing, the P&E Court published reasons for judgment and indicated the appeal would be dismissed, but invited further submissions from the parties before making final orders. His Honour said that the reason for that approach was that: 

1. had the proposed development been conditioned to require a podium and tower form, he may have approved it; 
2. that was not the current situation; and
3. the possibility of imposing such a condition had not been raised during the appeal.

The Applicant subsequently provided Council with new plans and advanced a position that these plans addressed the Court’s concerns. The Council did not agree with that submission and the P&E Court delivered further reasons dismissing the appeal. The P&E Court found that the changed application involved a material non-compliance with City Plan, as the proposed development failed to adopt a podium and tower form, resulting in a building that would dominate or crowd the existing/planned streetscape to an unacceptable level. 

In the Court of Appeal, Upan argued that it had been denied procedural fairness. It alleged it had not given an adequate opportunity to present evidence and submissions in relation to potential conditions that would address non-compliance with City Plan.  

The Court of Appeal found that the Appellant had no right to be heard on the revised plans, as the primary judge did not seek amended plans of development. The question the primary judge had asked was whether the proposed development, as it stood at the time, could be the subject of a condition that would overcome non-compliance with the scheme. He had not invited an entirely new set of plans and a further merits hearing on those plans (which would have involved a sort of de facto minor change application within the context of another change application).    

The Court of Appeal determined that it could not be demonstrated the P&E Court had fallen into error.  The new plans advanced by Upan were not the subject of a change application considered by Council and were not the subject of the appeal. What Upan proposed was a substantial departure from the proceeding and whether to permit a reopening was a matter of discretion for the primary judge. Upan did not advance a condition that resolved the primary judge’s concerns about the development and its non-compliance with the scheme. In the absence of such a condition, His Honour remained satisfied that the change application could not be approved and the appeal should be dismissed.  

Upan’s two other grounds for appeal were also dismissed.  

Cox v Brisbane City Council & Anor [2022] QPEC 10

This case concerned a submitter appeal against the decision of Brisbane City Council to approve a development application for a master planned development at Albion. The case demonstrates the Court’s approach to assessment of a development application for a preliminary approval for a material change of use and an associated variation request. 

The proposal was to establish a transport-oriented development on a large parcel of land near the Albion Train Station.   

The proposed development was split into five precincts. The submitter appellant only took issue with proposed precincts two and four. Under the master plan (sought to be implemented by the variation request) those precincts were to be for a range of uses, including multiple dwellings, food and drink outlets, offices, shops and parking station. In addition, short term accommodation was proposed in precinct four. The variations sought, included making those uses code assessable rather than impact assessable. 

The planning designations for the site were significant in the Court’s assessment. Precinct two was included in the Character residential zone and the Low density residential zone under Brisbane City Plan. Precinct four was included in the Special purpose (Transport industry) zone.  

Council and the developer conceded that the development proposed in Precinct two was inconsistent with the intent and development expectations for the Character residential zone and Low density residential zone. The Court observed that a 15-storey building comprising a mix of residential and non-residential uses, was not anticipated in either zone. The development in Precinct four was also at odds with the Special purpose (Transport industry) zoning (although this zoning was found to be overtaken by events).   

In assessing the application for a preliminary approval for a material change of use, His Honour found that:

1. the starting point for examination of land use acceptability is the planning scheme; 
2. inconsistency with zoning provisions is not determinative; and
3. consideration ought to be had to the strategic framework and applicable neighbourhood plan when determining acceptability of uses.

The strategic framework identified a growth node at Albion and further detail was provided in the neighbourhood plan. The P&E Court found the development was consistent with the underlying planning policy, evident through those provisions, which sought to maximise public benefit from investment in rail infrastructure by intensifying uses around it. His Honour was satisfied that the uses were at a scale and intensity that were appropriate for the land.  

For the material change of use component of the development, His Honour carefully examined the planning framework. While the land use was inconsistent with the zoning provisions, that inconsistency was not determinative in the circumstances of the case. The examination of land use acceptability was, the Court found, better assisted by the Strategic framework provisions and applicable neighbourhood plans. The Strategic framework identified a “Planned Growth Node” at Albion. Further guidance on the “Growth Node” was provided in the neighbourhood plan, with overall outcomes supporting medium and high density residential and mixed uses concentrated on the train station and Albion village. His Honour was satisfied that there was a considerable interest in transit oriented development of the kind proposed, because it optimised public investment in rail infrastructure, and the evidence demonstrated that public benefit could be achieved without impacts on character and amenity.   

Having determined that the material change of use component of the application was acceptable, His Honour went on to consider the variation request. The Planning Act requires four matters to be considered namely:

1. the result of the assessment of that part of the development application that is not the variation request; and
2. the consistency of the variations sought with the balance of the local planning instrument that is sought to be varied; and
3. the effect the variations would have on submission rights for later development applications, particularly considering the amount of detail and information included in, attached to, or given with the application and available to submitters; and
4. any other matter prescribed by regulation.

Taking those considerations in turn, His Honour determined that:

• the nature and intensity of the uses proposed (in the MCU component of the application) was appropriate and that meant the assessment required did not call for refusal of the variations sought, rather, it was fairly regarded as supportive of the variation request;
• while inconsistent with the zoning provisions, the variations sought to facilitate the achievement of a development that advanced the planning objectives associated with transit orientated development (outcomes advanced in the strategic framework and neighbourhood plan); and
• removal of submission rights did not mean the variations proposed must fail. The Court considered this point extensively. His Honour noted:
  • the variations identified uses and the scale of development (within a building envelope) that would trigger code assessment and identified relevant assessment benchmarks for future assessment;  
  • while public notice had taken place three years before the hearing, there were no new planning issues that had arisen that would warrant further public review and comment;
  • there were no adverse planning or amenity outcomes (given the conclusions on those issues); and
  • the area that attracted most scrutiny was whether the development provided little certainty as to the actual scale of the uses intended and their function. Having regard to the development application (which included a town planning report, precinct plans, a variation request package, traffic impact assessment and preliminary engineering assessments), members of the public would have been able to discern the purpose of the application, the fact that a variation approval would provide some flexibility for the ultimate mix of uses over the life of the project and that, irrespective of the mix and scale, future development would only be code assessment where within a prescribed building envelope and assessed against specific codes in the planning scheme.  
• finally, the submitter appellant did not suggest there was a matter prescribed by the Planning Regulation 2017 that called for refusal of the variations sought. 

The Court was satisfied the development application ought to be approved subject to conditions.  

Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16

This appeal related to a gym and indoor rock climbing facility on land close to the Brisbane river at Morningside. The proposed gym was very large (4,772m2) and fit out had taken place (prior to any development approval) within an existing industrial warehouse building on the site.  

Council had decided to approve the development application, subject to a condition limiting the life of the approval to two years. That decision was challenged by two submitter appellants who operated an abattoir and a bulk shipping terminal, respectively, near the site. The submitters contended the development was an inappropriate use of land, being a non-industrial use in an industrial zone. The appeal also involved issues of reverse amenity, traffic safety and efficiency and need (amongst others).  

Her Honour determined that the proposed development was an appropriate “support use” that aligned with the mixed-use context for industrial areas in the South East Queensland Regional Plan, and that it complied with the Indoor Sport and Recreation Code.  

Against that,  Her Honour found that the case for refusal was of significant force. The development was contrary to strongly expressed planning intention to preserve and protect land in the “Major Industry area” from encroachment by non-industrial land uses and to priorities and maximise its use for industrial purposes. Her Honour found that the development did not accord with, or was not supported by, numerous assessment benchmarks – including the purpose of the industry zone, the River Gateway Neighbourhood Code and the strategic framework. A TLPI also told against approval.  

The case came down to the exercise of discretion. The most telling factor was that Her Honour determined that the approval was of a limited duration, and within an existing building which could be returned to industrial development at the expiry of the approval. With those qualifications, Her Honour was satisfied the development would not disrupt the economic benefits to be obtained in the future from development of the land in a manner consistent with its industry zoning.   

The P&E Court granted the approval, subject to the imposition of conditions that require the development to:

• cease operation within two years from the date on which the approval takes effect; and 
• limit patrons to no more than 300 at any one time.  

Matthew Lawrence v The City of Gold Coast & Anor [2022] QPEC 19

This was a submitter appeal which arose from the Council of the City of Gold Coast’s decision to approve a development application for a four-storey residential multiple dwelling on land situated at 21 William Street, Mermaid Beach. The appellant’s argument was that the dwelling should not have been permitted to exceed three storeys and 15m in height. It was accepted that the development was otherwise compliant with the Medium density residential zone code.  

The case concerned the “uplift provision” in the strategic framework of Council’s City Plan, relating to increases in building height up to a maximum of 50% if listed criteria are satisfied.  

The evidence was that the development involved visibly expressed floor levels, an overhanging roof with a generous cantilever form, generous setbacks, recesses in building form that reduced the length and overall bulk of the front façade and opened up the pedestrian pathway where it approached the street. The architects who gave evidence, considered it to be a “well-considered piece of architecture with a range of elements that demonstrate design finesse that is respectful of its location within the local area and the relationship to and impact on neighbouring development” and that it achieved a “high-quality urban design outcome” that was “functional, accessible, attractive and memorable along with being responsive to the subtropical environment and adjoining public spaces”.  

For the subject development, the assessment against the uplift provision occurred in the context of only a 23% uplift being sought.  

His Honour found the proposed development was compliant with the criteria outlined in the strategic framework. The development was well-designed, well-articulated, well-separated, not overbearing and  increased housing diversity and choice. In this regard, His Honour took the view that the concept of affordability had been addressed in the context of the site and it was accepted that the three-bedroom units would provide an option at a lower price point than a comparable house.  

His Honour also observed that any non-compliances were minor and did not warrant refusal in the circumstances. Other relevant matters warranting approval included that the development:

• represented a rejuvenation of an outdated residential development where the planning scheme contemplates greater density in the local area;
• exhibits excellent architectural and design qualities; and 
• would not result in any unacceptable amenity impacts. 

The appeal was dismissed.