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  • Unreported Judgment

Fort Street Real Estate Capital Pty Ltd v Redland City Council

 

[2020] QPEC 59

PLANNING AND ENVIRONMENT COURTOF QUEENSLAND

CITATION:

Fort Street Real Estate Capital Pty Ltd v Redland City Council [2020] QPEC 59

PARTIES:

FORT STREET REAL ESTATE CAPITAL PTY LTD

(Appellant)

v

REDLAND CITY COUNCIL

(Respondent)

FILE NO:

1724 of 2020

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

11 December 2020

DELIVERED AT:

Brisbane

HEARING DATES:

25-27 November 2020

JUDGE:

Everson DCJ

ORDER:

Appeal will be allowed subject to lawful conditions

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of code assessable development application for a material change of use and reconfiguration of a lot –  food and drink outlet

ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – Redland City Plan 2018 – district centre zone code – landscape code – whether compliance can be achieved by imposing development conditions – exercise of discretion pursuant to s 60(2) of the Planning Act 2016 (Qld)

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES:

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

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253

Klinkert v Brisbane City Council [2018] QPELR 941

Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272

COUNSEL:

G Gibson QC and T Stork for the appellant
D Whitehouse for the respondent

SOLICITORS:

Evans Planning Law for the appellant
Redlands City Council Legal Service for the respondent

Introduction

  1. [1]
    This is an appeal against the decision of the respondent to refuse a code assessable development application for a material change of use (development permit) and reconfiguration of a lot (access easement and subdivision by lease) that primarily concerns a proposed McDonald's restaurant (“the proposed development”).[1]

The site and the surrounding area

  1. [2]
    The restaurant is proposed to be located within Birkdale Fair Shopping Centre at 2-12 Mary Pleasant Drive, Birkdale (“the site”).[2] The site is generally rectangular and comprises 20,990m²,[3] and is anchored by a full-line Woolworths supermarket as well as a range of other commercial, health and speciality shops. The site is within a District centre. In the immediate vicinity there is an established built up urban area, including commercial activities surrounded by a variety of residential types and densities, as well as community facilities and some open space.[4]
  1. [3]
    To the immediate west of the site is another retail and commercial centre. It also includes food outlets and other businesses such as a “gymnasium, post office, pool supplies shop, real estate agency and micro-brewery”.[5] Adjoining this retail and commercial centre is both a child care centre and an additional shopping centre, which includes the Birkdale Tavern, an IGA supermarket and other shops.[6] To the north of the site is a gated multiple dwelling community as well as residential properties. The site is a short walk from both Birkdale State School and Birkdale train station, with its accompanying Park 'n' ride facility.[7]

The proposed development

  1. [4]
    The proposed development is essentially a McDonald’s restaurant with a drive-through facility with a GFA of 428m².[8] Such a use is contemplated by the planning scheme within a District centre.[9] It is proposed to be oriented at an angle on the south-eastern corner of the site, with landscaping to partially soften the appearance of the built form.[10] The restaurant’s drive-through facility is partially concealed by an acoustic wall and a trellis structure. The main access and egress point into this part of the Birkdale Fair Shopping Centre from Mary Pleasant Drive will also be reconfigured, to allow for the drive-through vehicular access to the restaurant. A retaining wall will be built along Mary Pleasant Drive that will be approximately the same height as the existing embankment.[11] Some landscaping will be added to soften the edge between the boundary and the built form, and to screen the drive-through facility and associated traffic.[12] Pedestrian access to the restaurant is to be via a walkway between the existing shopping centre and the restaurant,[13] which then extends to an upgraded Birkdale Road access and egress point. Indirect access via the shopping centre car park is also to be available from Mary Pleasant Drive. All traffic issues were resolved between the parties prior to the hearing of the appeal.[14]
  1. [5]
    Other noteworthy features of the proposed development include the addition and reconfiguration of car parking in the east and north of the site, resulting in a net gain of 12 car parking spaces,[15] and a lease of part of the site for more than ten years to enable the McDonald’s restaurant business to be conducted, necessitating the development application for a reconfiguration of a lot.

The statutory assessment regime

  1. [6]
    The Planning Act 2016 (“the PA”) and the Planning and Environment Court Act 2016 form the statutory assessment regime under which the appeal is determined.  The appeal is by way of hearing anew,[16] and the appellant bears the onus of establishing that the appeal should be allowed.[17]
  1. [7]
    As the development application giving rise to the appeal was subject to code assessment, the assessment “must be carried out only against the assessment benchmarks in a categorising instrument for the development”.[18] The relevant categorising instrument is the Redland City Plan 2018 (“the planning scheme”).[19] Pursuant to s 59(3) of the PA, the decision of the court must be based on an assessment against the assessment benchmarks. In this regard the observation of McMurdo JA in Bell v Brisbane City Council & Ors is instructive:

“…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”[20]

However, decision-making for code assessable development is subject to s 60 of the PA, which relevantly provides that:

“(2) To the extent the application involves development that requires code assessment… the assessment manager, after carrying out the assessment –

  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks; …

  1. (d)
    may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.”[21]
  1. [8]
    The discretion conferred by this provision was observed by Williamson QC DCJ in Klinkert v Brisbane City Council to be “expressed in permissive (“may”) and broad terms”,[22] and was recently subject to Court of Appeal consideration in Brisbane City Council v YQ Property Pty Ltd, in which Henry J, (with whom Fraser and Morrison JJA agreed), stated that:

“…s 60(2) expressly confers the assessment manager with the discretion to approve the application “even if the development does not comply with some of the assessment benchmarks”.  The inter-play of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with a planning instrument.”[23]

The relevant assessment benchmarks

  1. [9]
    In s 5.3.3 of the planning scheme the following relevant provisions are instructive:

“(4) Code assessable development:

  1. (a)
    is to be assessed against all the assessment benchmarks identified in the assessment benchmarks column;

  1. (c)
    that complies with:
  1. the purpose and overall outcomes of the code complies with the code;
  2. the performance or acceptable outcomes complies with the purpose and overall outcomes of the code;”[24]

Accordingly, the appellant is only required to comply with the purpose and overall outcomes within the relevant codes to achieve compliance.

  1. [10]
    The District centre zone code and the Landscape code have been identified as relevant to the determination of this appeal.
  1. [11]
    No acceptable outcomes are relevant to the determination of this appeal.
  1. [12]
    The purpose of the District centre zone code is to:

“…guide the creation of district centres at Alexandra Hills, Birkdale and Redland Bay which contain a diverse mix of residential accommodation, businesses, services and facilities to meet the weekly needs of a district population in the order of 15,000 people.”[25]

This purpose is achieved through the following overall outcomes that were identified as relevant:

“(f) built form and ground floor uses contribute to an active, comfortable, safe, pedestrian focussed street life;

  1. (g)
    built form and streetscaping strengthen the identity of the Redlands as a sub-tropical, bayside city, and create attractive and engaging streetscapes through scale, building elements, awnings and extensive street planting;

  1. (i)
    development facilitates an integrated, mixed use centre design, with well connected pedestrian, cyclist and public transport facilities;
  1. (j)
    car parking areas and servicing areas are generally located behind or beside buildings and do not visually dominate the centre;…”[26]
  1. [13]
    The following performance outcomes were identified as relevant:

PO11

Buildings are designed to provide high levels of physical and visual interaction and access between internal and external spaces at ground level, having regard to:

(4) minimising non-active elements such as vehicle access, fire egress, plant and building services along the frontage.

PO12

Buildings are oriented to the street rather than to internal spaces or car parking areas.

PO14

Car parking and service areas are located behind or beside buildings to minimise their visual and physical intrusion on the streetscape.

  1. [14]
    The purpose of the Landscaping code is to:

“…ensure that landscaping is designed and constructed to a high standard, provides a strong contribution to Redlands’ image, is responsive to the local character, site and sub-tropical climatic conditions and remains fit for purpose over the long-term”.[27]

This purpose is achieved through the following overall outcomes that were identified as relevant:

“(2) The purpose of the code will be achieved through the following overall outcomes:

  1. landscaping:
  1. makes a positive contribution to the local streetscape character and landscape setting;
  2. is appropriate to user requirements and its intended function;

  1. landscaping design contributes to the creation of accessible, safe and comfortable places;[28]
  1. [15]
    The following performance outcomes were identified as relevant:

PO1

Landscaping is undertaken to be consistent with the streetscape and landscape setting.

PO3

Landscaping within on-site open space areas is fit for purpose, is predominantly comprised of soft landscape elements and provides substantial shading for users.

PO4

Fences and walls:

(1) provide visual interest to the streetscape and complement the built form;

(2) assist in highlighting entrances and pedestrian paths; and

(3) allow casual surveillance of all public areas, pedestrian and cycle paths.

The disputed issues

  1. [16]
    The agreed list of disputed issues at the commencement of the hearing was narrow, and the issues in dispute further distilled during the course of the hearing.[29]
  1. [17]
    The remaining issues can be summarised as follows:
  • Whether the orientation of the proposed building complies with overall outcomes 2(f) and (g) and PO11, PO12 and PO14 of the District centre zone code;
  • Whether the drive-through facility complies with overall outcomes 2(f), (g), (i) and (j) and PO11 and PO14 of the District centre zone code because it does not physically and visually dominate the streetscape, and whether its orientation and grade limits landscaping, pedestrian access and an activated or engaging streetscape;
  • Whether the retaining wall at the edge of the proposed development complies with overall outcomes 2(f), (g) and (i) and PO11 of the District centre zone code because it enables a suitably active, engaging, well connected or attractive streetscape with pedestrian facilities;
  • Whether the proposed development complies with overall outcomes 2(f), (g) and (i) and PO11 of the District centre zone code; and overall outcomes 2(a) and (b) and PO1, PO3 and PO4 of the Landscape code, through landscaping to the south-eastern corner that is of sufficient quality to enhance the function of the site, and whether there is non-compliance with these provisions of the planning scheme because it is dominated by a built to boundary retaining wall and raised drive-through facility facing the street;
  • Whether the imposition of appropriate lawful conditions or any discretionary matters would otherwise allow for approval of the proposed development if it does not comply with any of the assessment benchmarks.
  1. [18]
    Although the appeal is also against a decision of the respondent to refuse a development application for a reconfiguration of a lot, the parties agreed that this aspect of the proposed development will simply follow the outcome of the primary question of the appropriateness of the proposed material change of use.[30]
  1. [19]
    At the outset, it is important to reiterate that the court is determining a code assessable development application for the retrofitting of a portion of the car park of an established shopping centre to include a McDonald’s restaurant, an uncontroversial use for such land under the planning scheme.[31] When assessing the appropriateness of a development proposal against its categorising instrument, one must give regard to the setting and context of the proposed development, and note that it is acceptability, rather than any concept of utopia or best possible use that guides determinations. In Wingate Properties Pty Ltd v Brisbane City Council & Ors, Brabazon QC DCJ observed:

“It is not the function of this Court… to refuse an application because it considers that the proposed use is not the best possible use for the site… Its function is to pass judgment on that which is proposed. In this case, the issue is whether or not the current proposal has been shown to be acceptable. The fact that some alternative proposal may be thought to be even more acceptable is by the way. If the current proposal is acceptable, then that is enough.”[32]

This approach remains relevant under the current legislative framework.

The orientation of the building

  1. [20]
    The planning scheme requires any proposed development to be assessed against the District centre zone code to be “oriented to the street rather than to internal spaces or car parking areas”.[33] There was substantial discussion of the orthogonal alignment, or lack thereof, of the building. Two visual amenity experts gave evidence at the hearing of the appeal, Dr McGowan on behalf of the appellant and Mr Curtis on behalf of the respondent.
  1. [21]
    Mr Curtis suggested that the vertical edge near the road frontages of the existing structures on the site complemented the streetscape,[34]  but I do not find the “orthogonal relationship to the streetscape” of the existing functional structures a compelling basis for rejecting the proposed built form. Instead, I accept the evidence of Dr McGowan that “any regularity in the layout of built form… is disguised by [car parking] areas, landscaping, varied setbacks, and varied built form”.[35] I agree with his observation that an arrangement of perpendicular angles does not formulate a unique or dominant feature of the locality. Moreover, the proposed design may in fact assist with breaking up the overly rigid built form of the existing District centre, diverging from the expansive car park that features a multitude of parallel shade sails that are prominently visible from both Birkdale Road and Mary Pleasant Drive.[36]
  1. [22]
    Turning to whether the building orientates to the street, Mr Curtis agreed that the building is oriented toward both the car park and Birkdale Road, albeit obliquely for the latter,[37] but disagreed as to whether it oriented toward the roundabout and Mary Pleasant Drive.[38] It is the view of Mr Curtis that although it has “elements” that face Mary Pleasant Drive,[39] he suggested that the “principal façade” of the building must be oriented to the street to satisfy the performance outcome.[40] He conceded that it was possible to present to multiple streets because it was submitted that such a building can have multiple principal façades.[41]
  1. [23]
    I accept the evidence that the building manifests three frontages, with a façade facing both major roads and the main car park.[42] The extensive clear glazing across portions of the building, including the drive-through service windows and the “play space” will be visible from Mary Pleasant Drive and very visible from both Birkdale Road and the car park respectively. In addition, although the building materials and colours do not offer a particularly unique design outcome, they feature satisfactory articulation and variation of colour and texture that orientates the building toward Mary Pleasant Drive and the site’s south-eastern corner. On any view the car parking and servicing areas are intended to be located behind or beside the proposed building and do not visually dominate to any greater extent than the existing car park does.
  1. [24]
    I ultimately accept the evidence of Dr McGowan that “the outcome is a well resolved and visually interesting building that related appropriately to its setting and engages with the streetscapes adjacent”,[43] and the proposed development therefore complies with overall outcomes 2(f) and (g) and PO11, PO12, PO14 of the District centre zone code insofar as they relate to the orientation of the proposed building.

Issues relating to the drive-through facility

  1. [25]
    There were two issues remaining at the end of evidence regarding the drive-through facility: whether it physically and visually dominates the streetscape, and whether its orientation and grade limits landscaping, pedestrian access and an activated or engaging streetscape. Firstly, although Mr Curtis suggested that the drive-through facility “will ‘wrap the corner’ and dominate the building’s appearance”,[44] there are no relevant overall or performance outcomes that use the language “dominate” to determine assessment benchmarks for any structures other than car parking areas and servicing areas.[45] This issue is also strictly limited to the drive-through facility and not any other aspect of the proposed development. On the evidence presented, the drive-through facility reflects the topography of the site and is partially concealed by an acoustic wall. There is also a trellis structure which provides some additional screening. Observable vehicle activity would not be unusual for any food and drink outlet that has a drive-through facility, and its design is appropriate for its setting and context. Furthermore, vehicle activity is prominent on the site in its present configuration as a car park. Finally, the drive-through facility is physically and visually a secondary issue compared to the proposed building itself.
  1. [26]
    Overall outcome 2(f) of the District centre zone code requires the proposed development to “contribute to an active, comfortable, safe, pedestrian focussed street life”,[46] for which “pedestrian focus” from Mary Pleasant Drive is a relevant consideration. Although a new pedestrian access point is proposed to directly link the building to both the shopping centre and Birkdale Road, there is no similar direct pedestrian link to Mary Pleasant Drive. The presence of the drive-through facility and retaining wall with its associated landscaping will also block any opportunity for a pedestrian path over the lower section of the existing embankment into the car park. The respondent submits that vehicular traffic should not be allowed to isolate the building from the footpath.[47] Dr McGowan conceded that the drive-through facility is vehicular focussed rather than pedestrian focussed.[48]
  1. [27]
    In circumstances where the site is part of a large car park for a District centre, I find that the proposed development appropriately responds to the generally worded requirements of overall outcome 2(f) of the District centre zone code by providing safe and clearly marked pedestrian access from both street frontages and the car park. Overall outcome 2(j) requires that “car parking areas and servicing areas are generally located behind or beside buildings”.[49] As noted above this requirement is complied with, as is the similarly worded PO14. PO11 requires that “non-active elements such as vehicle access” are minimised.[50] Utilisation of the drive-through facility is an active element of the proposed use and not what is contemplated by PO11. However, if I am wrong in my interpretation of this provision, the proposed development through its architectural treatments to the drive-through facility minimises vehicle access to an adequate extent given such a facility is integral to the proposed development which is to be located in an existing car park. The drive-through facility also complies with overall outcome 2(g) which requires “attractive and engaging streetscapes through scale, building elements, awnings and extensive street planting”,[51] because of the design elements identified above. It also complies with overall outcome 2(i) in that it “facilitates an integrated, mixed use centre design, with well connected pedestrian… facilities”.[52]

Issues relating to the retaining wall and landscaping

  1. [28]
    Also in issue in the appeal is whether the proposed retaining wall dominates the street frontage and enables a suitably active, engaging, well connected or attractive streetscape with pedestrian facilities and whether the proposed landscaping is of sufficient quality to enhance the function of the site.
  1. [29]
    To begin with, the language “enhance the function of the site” raised in issue 4(a) of the Amended Agreed List of Disputed Issues does not feature in any of the overall or performance outcomes put in issue, and appears to most relevantly refer to PO21 of the District centre zone code, which was abandoned as an issue relied upon by the respondent. Among the remaining relevant provisions, overall outcome 2(a) of the Landscape code is perhaps the most analogous and compels “a positive contribution to the local streetscape character and landscape setting” that is “appropriate to user requirements and its intended function”.[53] Appropriateness is a less rigorous test than enhancement. In addition, overall outcome 2(g) of the District centre zone code requires that the “built form and streetscaping strengthen the identity of the Redlands as a sub-tropical, bayside city” and that it “create attractive and engaging streetscapes through scale, building elements, awnings and extensive street planting”.[54] The respondent abandoned reliance upon the sub-tropical aspect of the overall outcome,[55] but the latter remains in issue.
  1. [30]
    I am satisfied that the proposed planting will make a positive contribution to the streetscape. Although I find that the existing landscaping mitigates the visual impact of the existing retail and car parking activities on the site, I do not accept the evidence of Mr Curtis that this “cumulative presence of landscaping forms an important attribute of the locality’s character and identity”.[56] It is clear that the immediate vicinity of the site has an eclectic range of landscaping, from a notable Moreton bay fig to large palm trees to unremarkable trees and hedges.[57] Relevantly, the proposed development would result in the removal of five unremarkable trees along Mary Pleasant Drive between the proposed access point and the roundabout,[58] with the same number to be replaced by vegetation that appears to be of a similar quality.[59]
  1. [31]
    It was submitted by the respondent that planting on the road reserve verge area would not be allowed. I do not have the authority to lawfully condition planting on the respondent’s verge areas outside the property boundary of the site.[60] As a result of the attitude of the respondent, although some planting appears to hang over the top of the wall,[61] the retaining wall is more visible from Mary Pleasant Drive than pursuant to previous design proposals.[62] Although the respondent is fully entitled to refuse to engage with the developer in this regard, it does not mean that the respondent can simultaneously submit that the retaining wall and landscaping are non-compliant because of the lack of planting in the road reserve. I accept that the proposed retaining wall will be no higher, and in some places lower, than the embankment which currently exists along Mary Pleasant Drive.[63] The colour of the retaining wall as it presents in the proposed plans of development appears to be grey or uncoloured.[64] I find it is nonetheless compliant, however in the circumstances, to further soften the edge between the boundary and the built form of the proposed development, conditions should be imposed so that the retaining wall be “painted or clad with attractive materials”.[65] The exact manifestation of this can be the subject of suitable development conditions.[66]
  1. [32]
    The proposed landscaping is superior to that which is present on other corners and frontages of the District centre.[67] I accept the evidence of Dr McGowan that the proposed landscaping is “appropriate for a prominent corner of a shopping centre, where higher levels of screening would conflict with commercial imperatives and [crime prevention through environmental design] principles”.[68] Additional landscaping outside of the south-eastern corner of the site will also cumulatively enhance the presentation of the car park. This includes a greater density of trees along the eastern side of the existing shopping centre,[69] and a “1m wide landscaped garden bed and shade trees in garden bed built-outs in-between groups of car parking spaces”.[70]
  1. [33]
    I ultimately accept the evidence of Dr McGowan that “the landscaping proposed between the building and the adjacent verges will add further complexity and visual interest, and will also partially screen and soften the appearance of the building”.[71] The proposed landscaping complies with overall outcome 2(a) of the Landscaping code,[72] as well as overall outcome 2(b) by contributing to “the creation of an accessible, safe… place”.[73] Given my findings above it follows that PO1, PO2 and PO3 are also satisfied. The retaining wall, so conditioned, and the proposed landscaping will also readily comply with overall outcome 2(f) of the District centre zone code by achieving an “active, comfortable, safe, pedestrian focussed street life” to the extent permitted by the location of the site in a large car park.[74] It will also satisfy the requirement in overall outcome 2(g) for an “attractive and engaging streetscape”,[75] and overall outcome 2(i) by providing “an integrated, mixed use centre design, with well connected pedestrian… facilities”.[76] Furthermore, it will satisfy PO11 by providing sufficient physical and visual interaction at ground level.

Discretionary matters

  1. [34]
    Although all of the relevant assessment benchmarks have been met by the proposed development, the discretionary matters raised in the Amended Agreed List of Disputed Issues would also allow, in the exercise of my broad evaluative judgment, for the appeal to be upheld in circumstances were some non-compliance to be found. As stated above, s 60(2) of the PA expressly confers upon the court the discretion to approve such an application even when some of the assessment benchmarks are not met.[77] In the event a non-compliance with any of these generally worded assessment benchmarks was ultimately found to exist, it would not justify a refusal of the proposed development, which is a use expressly contemplated by the planning scheme for the site and an appropriate design response to the realities of the setting, which is a section of a large car park in a District centre, which sits above the road frontage for most of the corner where the restaurant is proposed to be located.

Conclusion

  1. [35]
    The proposed development is appropriate when having regard to the setting and context of the site, and complies with each of the relevant overall outcomes and performance outcomes of the relevant codes. It therefore complies with each code. In the case of the retaining wall, I am satisfied that the imposition of lawful conditions will further ensure compliance.
  1. [36]
    The appeal will be allowed subject to the imposition of appropriate lawful conditions.

Footnotes

[1]Exhibit 6, para 3.

[2]Ibid, para 2.

[3]Ibid, para 11(b).

[4]Ibid, para 18.

[5]Ibid, para 19(a).

[6]Ibid, para 19(d).

[7]Ibid, para 19(e) and (g).

[8]Exhibit 6, para 33(a).

[9]Ibid, para 64.

[10]Ibid, para 91.

[11]T2–32, ll 14–23.

[12]Exhibit 5, para 73.

[13]Affidavit of Jennifer Patricia Morrissy, affirmed on 21 November 2020, JPM-3, p 2.

[14]Ibid, para 2.

[15]Ibid, para 10(a)(iv).

[16]Planning and Environment Court Act 2016 (Qld) s 43.

[17]Ibid s 45(1).

[18]Planning Act 2016 (Qld) s 45(3)(a).

[19]Exhibit 6, para 22; Exhibit 4 (version 3).

[20][2018] QCA 84 at [66].

[21]Planning Act 2016 (Qld) s 60(2).

[22][2018] QPELR 941, 957 at [102]. This observation has been favourably cited by the Court in subsequent decisions including Di Carlo v Brisbane City Council [2019] QPELR 548, 549-550 at [8]; Irvine v Brisbane City Council [2020] QPELR 455, 457 at [6].

[23][2020] QCA 253 at [62].

[24]Planning scheme, s 5.3.3(4).

[25]Ibid, s 6.2.8.2(1).

[26]Planning scheme, s 6.2.8.2(2).

[27]Ibid, s 9.3.3.2(1).

[28]Planning scheme, s 9.3.3.2(2).

[29]Exhibit 1A.

[30]T3–3, ll 30 – T3–5, ll 32.

[31]Exhibit 6, para 64.

[32][2001] QPELR 272 at [21]

[33]Planning scheme, table 6.2.8.3.1(PO12).

[34]Exhibit 5, para 19(b).

[35]Ibid, para 20(b).

[36]Exhibit 6, para 69.

[37]Exhibit 5, para 45.

[38]Ibid, para 46.

[39]T2–26, ll 40–41.

[40]T2–26, ll 43–45.

[41]T2–27, ll 39–46.

[42]Exhibit 3, p 9; Exhibit 6, pp 26–27.

[43]Exhibit 5, para 35.

[44]Ibid, para 44(b).

[45]Appellant’s Outline of Submissions, filed 27 November 2020, para 55.

[46]Planning scheme, s 6.2.8.2(2)(f).

[47]This view was put to the parties at T3–15, ll 22–24.

[48]T2–22, ll 36-38.

[49]Planning scheme, s 6.2.8.2(2)(j).

[50]Ibid, table 6.2.8.3.1(PO11).

[51]Planning scheme, s 6.2.8.2(2)(g).

[52]Ibid, s 6.2.8.2(2)(i).

[53]Ibid, s 9.3.3.2(2)(a).

[54]Ibid, s 6.2.8.2(2)(g).

[55]T1–49, ll 5–15.

[56]Exhibit 5, para 19(d).

[57]Street trees and landscaping on nearby land is reflected at Exhibit 5, figs 7-22.

[58]Exhibit 5, para 72, fig 66.

[59]Ibid, figs 56 and 57.

[60]T1–26, ll 36–41.

[61]Exhibit 14; Affidavit of Geoffrey Robert Donaldson, affirmed 25 November 2020, GRD-1.

[62]Compare ibid with Exhibit 3, p 11.

[63]T2–32, ll 14–23.

[64]Exhibit 14; Affidavit of Geoffrey Robert Donaldson, affirmed 25 November 2020, GRD-1.

[65]Exhibit 5, para 67(b); Appellant’s Outline of Submissions, filed 27 November 2020, para 77.

[66]Planning Act 2016 (Qld) s 60(2)(d).

[67]Landscaping on nearby commercial land is reflected at Exhibit 5, figs 59-61.

[68]Exhibit 5, para 73.

[69]Exhibit 6, para 88(b).

[70]Ibid, para 88(c).

[71]Exhibit 5, para 35; T2–21, ll 39–42.

[72]Planning scheme, s 9.3.3.2(2)(a).

[73]Ibid, s 9.3.3.2(2)(b).

[74]Planning scheme, s 6.2.8.2(2)(f).

[75]Ibid, s 6.2.8.2(2)(g).

[76]Ibid, s 6.2.8.2(2)(i).

[77]See for instance Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 at [62].

Close

Editorial Notes

  • Published Case Name:

    Fort Street Real Estate Capital Pty Ltd v Redland City Council

  • Shortened Case Name:

    Fort Street Real Estate Capital Pty Ltd v Redland City Council

  • MNC:

    [2020] QPEC 59

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    11 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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