Ko v Brisbane City Council[2018] QPEC 35

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Introduction

1. [1]
   In February 2016, the Appellant made an application to the Respondent (“the Council”) for approval to redevelop land situated at 29 Fairy Street, Moorooka (“the subject land”).  The form of the development proposed comprised a three storey Multiple dwelling with four units. The application was impact assessable and attracted three adverse properly made submissions.  One of the submissions received was made on behalf of the Co-respondent by election.  She owns a unit in a development on adjoining land to the south of the subject land.

2. [2]
   On 24 February 2017, the Council’s delegate decided to refuse the development application. The Appellant exercised her right of appeal under s. 461(1)(a) of the Sustainable Planning Act 2009 (“SPA”) against that refusal. As the Appeal was commenced, but not ended prior to the enactment of the Planning Act 2016, SPA continues to apply^[1].

3. [3]
   The development refused by the Respondent was designed with double garages located on the ground floor of each unit. The garages were accessed via a driveway running parallel to the northern boundary of the subject land. The built form essentially turned its back to the southern boundary. A setback in the order of 2 to 2.56 metres was provided to the southern boundary.

4. [4]
   On 20 February 2018, his Honour Judge Jones directed that the appeal proceed to be heard and determined on the basis of amended plans.

5. [5]
   Three substantive changes were made to the proposed development, namely: (1) the development was moved closer to the northern boundary; (2) the driveway providing access to each of the four garages was flipped from the northern side to the southern side of the proposal; and (3) the height of the proposal was amended from three storeys, to provide a mix of two to three storeys that transitions upwards from the Fairy Street frontage.

6. [6]
   The amendments to the proposal were favourably received by the Council and, as a consequence, it no longer contends that the application should be refused.

7. [7]
   The changes to the proposal did not cause the Co-respondent to alter her position in the appeal. She maintains that the application should be refused and notified, in writing, 17 reasons for refusal. Those reasons allege conflict with some 32 provisions of the Council’s Planning Scheme, City Plan 2014 (“City Plan 2014”).  The issues allege that conflict arises with City Plan 2014 because of the bulk, height and scale of the proposal. Allegations of conflict are also made with respect to the quantum of landscaping proposed and privacy impacts.

8. [8]
   The Co-respondent by election did not nominate any experts, nor call any expert evidence in support of her case during the appeal. She did not lead any evidence to explain what concerned her about the amended proposal. The only evidence before the Court was that led by the Appellant and the Council.

9. [9]
   During the course of submissions, Ms Hewson who appeared for the Co-respondent by election, narrowed the reasons for refusal. She submitted that a decision to approve the application would conflict with 8 provisions of City Plan 2014. In addition, it was submitted that s. 326(1) of SPA mandates refusal in this case because there are not sufficient grounds to justify an approval of the application despite the conflict with City Plan 2014.

10. [10]
    The submissions made with respect to the 8 alleged conflicts with City Plan 2014 relate to issues of bulk, height and scale of the proposal and its consequential impacts on character and amenity. The central complaint is that the proposal is three storeys in height and will be larger than existing development in Fairy Street, including the development in which the Co-respondent by election has an interest. The fate of this issue turns upon whether three storey development ought to be reasonably anticipated on the subject land having regard to City Plan 2014. As these reasons disclose, I am of the view that there should be such an expectation in this case.

11. [11]
    It is for the Appellant to establish that the appeal should be upheld^[2].

The subject land and surrounding locality

12. [12]
    The subject land is rectangular in shape and has an area of 607 m².  It is relatively flat, with a one metre fall from north-east to south-west. The improvements include a modest, but dated single detached dwelling sited towards the street frontage^[3]. The existing dwelling was constructed after 1946 and is not traditional building character for the purposes of City Plan 2014^[4].

13. [13]
    The adjoining land to the north is improved with an existing three storey Multiple dwelling. This is a dated brick building that has little in the way of articulation modulation or visual interest. It is orientated such that it presents its longest face to the common boundary with the subject land. It is setback some 3 metres from the common boundary being the width of an access driveway. This driveway provides access to garages located on the ground floor of the development.

14. [14]
    The adjoining land to the west is improved with a detached dwelling. It was described by Mr McDonald as a high-set detached house of modest size sited approximately 16 metres from the rear boundary of the subject land^[5].

15. [15]
    The adjoining land to the south is improved with a two-storey Multiple dwelling in the form of a townhouse development. It effectively has an “L shape” configuration and is constructed in what appears to be light weight building materials. It has a modern skillion roof line^[6].  Like the development to the north of the subject land, the existing built form is setback from the common boundary with the subject land for most of its length by the width of an access driveway. This driveway provides access to garages located on the ground floor of each of the units in the development.

16. [16]
    The Fairy Street road reserve is a relatively wide road reserve. This is common in the locality having regard to the broader pattern of subdivision. It rises gradually from the south to the north. There is little in the way of landscaping or street trees on the verge. The town planning witnesses correctly described the existing character of Fairy Street in this way^[7]:

17. [17]
    The subject land is located within 650 metres walking distance of the Moorooka Train Station^[8]. The train station is located on the western side of Ipswich Road and accessed by pedestrians using a formalised pedestrian crossing. The crossing is located within 450 metres of the subject land^[9]. It is signalised with a refuge island located in the centre of Ipswich Road. Trains stop at the Moorooka Train Station every 5 to 10 minutes in the peak periods.

The proposed development

18. [18]
    The application before the Court seeks approval for a Multiple dwelling comprising four units. The proposed plans of development were admitted and marked Exhibit 3.

19. [19]
    The form of the proposal as depicted in Exhibit 3 is two to three storeys in height. The front or most eastern unit in the proposal is two storeys in height. The built form transitions from two to three storeys moving away from the street frontage. The transition occurs at a point that is about 13 metres to the west of the front boundary. Three of the four units are three storeys in height.

20. [20]
    As is expected by modern planning schemes, the elevations for the proposal vividly reveal that it has been designed to provide visual interest through horizontal and vertical articulation. The design also incorporates different building materials to create visual interest. The roof line is a modern skillion design and, as was confirmed by Mr McDonald, will not exceed 9.5 metres above ground level at any point^[10].

21. [21]
    The evidence of Mr McDonald confirms that the proposal has been designed to be respectful to surrounding development. His evidence, which I accept, was as follows^[11]:

“2.2.4 The subject site is adjoined on it southern boundary by a 2-storey multiple dwelling and on its northern boundary by a 3-storey multiple dwelling. The proposal is for a 2-storey building at the frontmost dwelling unit facing Fairy Street which then steps up to a 3-storey building for the remaining three dwelling units behind. This stepping of built form from two to three stories will allow the proposal to sit comfortably between the existing adjoining 2-storey and 3-storey multiple dwellings at the southern and northern edges of the site and will allow the proposal to form a gentle and sensitive transition of built form when viewed from Fairy Street.”

22. [22]
    The proposed built form is intended to respectfully transition to development in the west by a combination of three things. First, whilst the development is three storeys in height, the development presents its narrowest face to the western boundary. The built form will comprise less than 50% of the length of this boundary. Second, the built form will be set back some 5.2 metres from the western boundary. Third, the setback area between the built form and the boundary will include a visitor carpark and deep planting. Mr McDonald noted that the proposal has been designed to achieve a significant separation distance between it and the adjoining development to the west. The adjoining house to the west will be some 21 metres from the built form proposed on the subject land^[12].

23. [23]
    A single crossover will be located towards the south-east corner of the subject land providing access to a driveway that runs parallel to the southern boundary. The driveway provides access for vehicles to the double garages that are located on the ground floor of each of the proposed units. This driveway runs back to back with the driveway for the development to the south. The proposed double garages are recessed under the first storey.

City Plan 2014

24. [24]
    City Plan 2014 divides the planning scheme area into zones. One of the zones in which land can be included is the Low-medium density residential zone. In that zone, land may be included in one of three precincts, namely the^[13]:

1. (a)
   2 storey mix zone precinct;

2. (b)
   2 or 3 storey mix zone precinct;

3. (c)
   up to 3 storeys zone precinct.

25. [25]
    The subject land is included in the Low-medium density residential (2 or 3 storey mix) zone^[14].  Section 6.2.1.2 of City Plan 2014 contains the Low-medium density residential zone code (“the LMR zone code”).

26. [26]
    The Co-respondent by election submits that a decision to approve the application would conflict with the LMR zone code. These submissions are to be examined against the background that the Co-respondent by election does not submit that a decision to approve the application would conflict with s. 6.2.1.2(2)(c) of City Plan 2014. This provision forms part of the purpose statement of the LMR zone code and is in the following terms:

“Provide for a mix of dwelling types including dwelling houses, 2 to 3 storey low rise multiple dwellings (such as apartments and row houses) and dual occupancy in the 2 to 3 storey mix zone precinct, to provide housing diversity and a sensitive transition both to adjoining sites that contain dwelling houses and between busier roads or centres and lower density residential areas.”

27. [27]
    As an expression of planning intent, section 6.2.1.2(2)(c) of City Plan 2014 encourages development in the 2 to 3 mix zone precinct that takes the form of a 2 to 3 storey low rise Multiple dwelling. This form of development is intended to provide housing diversity and a sensitive transition to, inter alia, adjoining dwelling houses. The subject land has the benefit of this positive planning encouragement in circumstances where the proposed development is fairly described as being a 2 to 3 storey low rise Multiple dwelling, and the only adjoining dwelling house is located to the west, some 21 metres from the proposed built form.  This separation distance, coupled with the three design features I referred to earlier^[15], will ensure an appropriate transition is achieved from the built form of the proposal to the dwelling house to the west.

28. [28]
    The proposed development is characterised as a Multiple dwelling for the purpose of City Plan 2014. A material change of use of this kind is to be assessed against the Multiple dwelling code. The Co-respondent by election submits that a decision to approve the application would conflict with this code.

29. [29]
    I will now turn to deal with each of the conflicts that are submitted by the Co-respondent by election to arise with the LMR zone code and the Multiple dwelling code.

LMR Zone code

30. [30]
    The written submissions prepared on behalf of the Co-respondent by election contend that a decision to approve the application would conflict with three overall outcomes in the LMR zone code, namely ss. 6.2.1.2(7)(a)^[16], (5)(a)^[17] and (5)(b)^[18].

31. [31]
    Overall outcome (7)(a) of the LMR zone code relevantly provides^[19]:

32. [32]
    The Co-respondent by election submits that a decision to approve the application would conflict with overall outcome (7)(a) of the LMR zone code because the proposed development is 3 storeys in height and is not within easy walking distance of a public transport node^[20]. It is accepted by the Co-respondent by election that the Moorooka Train Station is a public transport node for the purposes of overall outcome (7)(a). She contends the proposed development is not within easy walking distance of that public transport node.

33. [33]
    In the context of overall outcome (7)(a) of the LMR zone code, this Court has held that “easy walking distance” is a walk that presents few difficulties for the hypothetical pedestrian and is a distance that can reasonably be reached by walking^[21]. I accept that these observations are correct and have approached the matter on the premise that overall outcome (7)(a) raises a straight forward question for consideration: Is the development located within easy walking distance of a public transport node? The answer to this question turns on matters of fact and degree.

34. [34]
    The Court’s task in examining this issue was assisted by the evidence of two town planning witnesses, namely Mr Ovenden and Mr Buhmann. Both experts examined the walk from the subject land to the Moorooka Train Station.

35. [35]
    I was particularly impressed with Mr Buhmann’s evidence. His opinion was well considered and succinctly stated at paragraph 7.18 of the Town Planning Joint Report in the following terms^[22]:

“In my view, 29 Fairy Street can be considered within easy walking distance of the Moorooka Train Station for the following reasons:

• The site is approximately 650m walking distance from the station (Fairy Street, Gainsborough Street, Ipswich Road);
• The pedestrian journey is approximately 8 minutes;
• The route is essentially flat with an average slope of less than 1%;
• With the exception of two allotments to the south of the site in Fairy Street (30m in length), the route has a concrete footpath for the entire length of travel;
• The journey is reasonably safe from a pedestrian perspective with road crossings generally having threshold treatments that highlight the suburban residential environment; and
• A signalised pedestrian crossing is available directly in front of the Station for safe access across Ipswich Road.”

36. [36]
    Mr Buhmann’s assessment of the walk from the subject land to the Moorooka Train Station is a careful and balanced assessment. He took into account both quantitative and qualitative factors. It is clear that he considered:

1. (a)
   the total walking distance;

2. (b)
   the time taken to complete the walk;

3. (c)
   the nature of the topography to be traversed;

4. (d)
   features of the locality that facilitate a comfortable walking experience for pedestrians (such as footpaths and threshold treatments); and

5. (e)
   features of the road network that facilitate the safe crossing of roads by pedestrians to access public transport.

37. [37]
    I accept Mr Buhmann’s evidence.

38. [38]
    Ms Hewson, counsel for the Co-respondent by election, did not challenge Mr Buhmann’s evidence as stated in paragraph 7.18 of the town planning joint report. Rather, he was cross-examined on the footing that there were two qualitative features that suggested the subject land was not within easy walking distance of the Moorooka Train Station. The two features were: (1) the lack of shade or cover for pedestrians walking along the route, particularly during the wetter and warmer months of the year^[23]; and (2) the difficulty and/or time required for pedestrians to cross Ipswich Road, being a busy road, to access the Moorooka Train Station^[24]. Mr Buhmann did not accept that either point, be it individually or collectively, caused him to change his opinion.

39. [39]
    The two points raised on behalf of the Co-respondent by election are in my view relevant to an assessment of the character of the walk from the subject land to the Moorooka Train Station. They are relevant qualitative considerations. However, they are considerations that do not loom large in this case.

40. [40]
    As was confirmed by the site inspection, the features to which Mr Buhmann points in his evidence correctly establish that the subject land is within easy walking distance of the Moorooka Train Station. It is a flat walk where appropriate pedestrian treatments have been provided to facilitate a safe and convenient journey for pedestrians from the subject land to the Moorooka Train Station. That journey is enhanced by the signalised intersection on Ipswich Road. It enables pedestrians to safely cross Ipswich Road directly at the entry to the Moorooka Train Station. The signalised intersection enhances the convenience and overall walkability of the route, rather than detracting from it.

41. [41]
    As to the lack of shade or cover for pedestrians, this is not a factor that detracts from the overall convenience and the ease of walkability of the route for pedestrians. The topography is flat, and the total time to walk from the subject land to the Moorooka Train Station is short, being 8 minutes. The combination of a flat walk on a footpath for a short duration will, in my view, mean that any discomfort experienced by a pedestrian by reason of heat, or wet weather, will not detract in any meaningful way from the overall convenience and walkability of the route. The subject land, even accounting for lack of shade and exposure to the elements, is located within an easy walking distance of the Moorooka Train Station.

42. [42]
    Accordingly, I am satisfied that the Appellant has demonstrated that the proposed development complies with overall outcome (7)(a) of the LMR zone code.

43. [43]
    The Co-respondent by election submits that a decision to approve the application would conflict with overall outcome (5)(a) of the LMR Zone code. This provision is in the following terms^[25]:

“Development for a residential building is of a height bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Low-medium density residential zone and the relevant zone precinct.”

44. [44]
    At paragraph 55 of the written submissions prepared on behalf of the Co-respondent by election^[26], it is submitted that a decision to approve the application would conflict with overall outcome (5)(a) of the LMR zone code because:

1. (a)
   the height of the building is not tailored to its specific location and the zone precinct given that it is not within easy walking distance of a public transport node; and

2. (b)
   it is inconsistent with the existing character of the street as it is three storeys and not within easy walking distance of a public transport node.

45. [45]
    The Co-respondent by election’s case with respect to overall outcome (5)(a) of the LMR zone code assumes that the Appellant has failed to demonstrate compliance with overall outcome (7)(a). This assumption has not been established by the Co-respondent by election. For the reasons given above, I am satisfied that overall outcome (7)(a) of the LMR zone code is satisfied.

46. [46]
    Further, and in any event, I reject the submission made at paragraph 55 of the Co-respondent by election’s written submissions as I am also satisfied that the height of proposed development is tailored to its specific location and will be consistent with the existing character of Fairy Street.

47. [47]
    The proposal is 2 to 3 storeys in height. A building of this height is consistent with existing development situated on land adjoining the subject land to the north and south^[27]. Mr McDonald’s evidence in this regard was effectively unchallenged and confirms that the height of the proposal will be consistent with existing development. His evidence was as follows:

“2.2.4 The subject site is adjoined on it southern boundary by a 2-storey multiple dwelling and on its northern boundary by a 3-storey multiple dwelling. The proposal is for a 2-storey building at the frontmost dwelling unit facing Fairy Street which then steps up to a 3-storey building for the remaining three dwelling units behind. This stepping of built form from two to three stories will allow the proposal to sit comfortably between the existing adjoining 2-storey and 3-storey multiple dwellings at the southern and northern edges of the site and will allow the proposal to form a gentle and sensitive transition of built form when viewed from Fairy Street.”

48. [48]
    The proposed development will also be consistent with the height of development anticipated in the Low-medium density residential zone. In particular, it is consistent with the height of development envisaged in the relevant precinct in the zone, which is described as the “2 to 3 storey mix zone precinct”.  In that zone and precinct, a building height of 9.5 metres ought be anticipated. Mr McDonald confirmed that the proposal does not exceed this height at any point.

49. [49]
    Further, the designer of the development has addressed appropriately the interface between the proposal, its neighbours and Fairy Street. The interface with adjoining neighbours involves providing appropriate setbacks with intervening landscaping, including deep landscaping. The architectural elevations of the proposal, coupled with the evidence of Mr Buhmann at paragraph 8.27 of the Town planning joint report, confirm that a sensitive transition to the adjoining properties will be achieved.

50. [50]
    The same can also be said for the design of the interface of the proposal with Fairy Street. The architectural elevations demonstrate that this interface has been well considered. The built form transitions in height from 2 to 3 storeys and is appropriately setback from the street. It is proposed to screen the built form, in part, to Fairy Street with a landscaping screen. The proposed screen will include deep planting. The landscaping coupled with the transition in building height will provide a sensitive transition for the development to Fairy Street.

51. [51]
    At paragraph 56 of the Co-respondent by election’s written submissions it is submitted that a decision to approve the development application would conflict with overall outcome (5)(b) of the LMR zone code. This provision is in the following terms^[28]:

52. [52]
    Conflict is submitted to arise with overall outcome (5)(b) of the LMR zone code because the proposal does not properly respond to the nature of adjoining dwellings, particularly the adjoining dwelling to the south.

53. [53]
    No evidence was called by the Co-respondent by election in support of this submission. Further, her counsel, Ms Hewson, did not refer the Court (either in writing or orally) to any evidence in support of the submission made.

54. [54]
    Again, I found Mr Buhmann’s evidence to be of assistance. His opinion with respect to the alleged conflict with overall outcome (5)(b) of the LMR zone code is helpfully set out at paragraph 8.27(iii) of the town planning joint report which is in the following terms^[29]:

55. [55]
    Mr Buhmann was not cross-examined about paragraph 8.27(iii) of the town planning joint report. I accept his evidence.

56. [56]
    At its highest, it was suggested by Ms Hewson to a number of witnesses that the proposed development would be bigger than the adjoining development to the south. This may be so, but that does not establish that the proposal fails to respond (in terms of its bulk and scale) to its neighbours. In my view, Mr Buhmann identified in his evidence the features of the proposal that fairly demonstrate that its height, bulk and scale not only responds, but responds favourably to the nature of adjoining dwellings. Accordingly, the Appellant has demonstrated that a decision to approve the application would not conflict with overall outcome (5)(b) of the LMR zone code.

57. [57]
    Having regard to the above reasons, I am satisfied that the Appellant has demonstrated that no plainly identified conflict has been established with the LMR zone code.

Multiple dwelling code

58. [58]
    It is submitted on behalf of the Co-respondent by election that a decision to approve the application would conflict with Performance Outcomes PO5 and PO6 of the Multiple dwelling code^[30]. 

59. [59]
    Performance Outcome PO5 of the Multiple dwelling code states^[31]:

60. [60]
    Performance Outcome PO6 of the Multiple dwelling code states^[32]:

61. [61]
    The following submission was made in support of the contention that conflict with PO5 and PO6 of the Multiple dwelling code had been established^[33]:

“It is submitted that the Proposed Development fails to meet both of these performance outcomes. It is submitted that the evidence of Mr Ovenden and Mr Buhmann does not support a finding that these performance outcomes are met as their evidence was based on an assumption that the Proposed Development was within easy walking distance to the Moorooka Train Station. In cross-examination, Mr Buhmann conceded that he would re-think the appropriateness of the development if that assumption was wrong.”

62. [62]
    The submission made on behalf of the Co-respondent by election does not address the specific terms, or requirements of PO5 and PO6 of the Multiple dwelling code. Nor does the submission refer to, or cite, the evidence that supports a finding that a decision to approve the application would conflict with PO5 and PO6. Rather, the submission proceeds on the footing that the Appellant has failed to demonstrate compliance with overall outcome (7)(a) of the LMR. That is not a sound footing. I have found to the contrary. Accordingly, I reject the submission.

63. [63]
    Further, I am satisfied having regard to the evidence that the Appellant has, in any event, demonstrated compliance with PO5 and P06 of the Multiple dwelling code.

64. [64]
    The evidence establishes that the bulk and scale of the proposal is consistent with the intended form and character of the local area as well as the local streetscape context. The intended form of development includes 2 to 3 storey Multiple dwellings, akin to that which is proposed. The height of the development at 9.5 metres is in keeping with what is intended in the zone and precinct. The existing character of Fairy Street includes Multiple dwellings that are 2 and 3 storeys in height. The proposed development will be consistent in terms of height and scale with the existing development in the street, particularly the development on the land adjoining to the north and south.

65. [65]
    During the course of oral submissions, Ms Hewson was invited to address the Court with respect to the consequence, if any, that flowed from the Co-respondent by election’s decision to abandon any suggestion of conflict with the overall outcomes in the Multiple Dwelling code. Her case was limited during oral submissions to allege conflicts with only PO5 and PO6 of that code. This issue was raised by the Court given s. 5.3.3(1)(c)(iii) of City Plan 2014^[34]. The provision applies to code assessable development but states the way in which compliance may be achieved with a code in City Plan 2014. It relevantly states:

66. [66]
    In response to the Court’s invitation, supplementary written submissions were delivered on behalf of the Co-respondent by election dated 15 June 2018. Paragraphs 4 and 5 of that document contain the following submission:

67. [67]
    Neither the Appellant nor Respondent gave notice of any objection to the Co-Respondent by election’s change of position. In the absence of any objection, I was prepared to accommodate the Co-respondent by election’s change in position and consider the conflict alleged with the three nominated overall outcomes of the Multiple dwelling code.

68. [68]
    That said, it is unnecessary to dwell upon the changed position advanced by the Co-respondent by election as it relies upon exactly the same submissions made to establish conflict with PO5 and PO6 of the Multiple dwelling Code. I have rejected those submissions. There is also no overall outcome (l)(iii) in the Multiple dwelling code to address. Accordingly, no plainly identified conflict has been established with the overall outcomes of the Multiple dwelling code.

69. [69]
    Having regard to the above reasons, I am satisfied that the Appellant has demonstrated that no plainly identified conflict has been established with the Multiple dwelling code.

Sufficient grounds

70. [70]
    It is common ground that the assessment and decision making rules prescribed in SPA apply to this appeal. Section 326(1) of SPA is one of the decision making rules and provides that an assessment manager’s decision must not conflict with a relevant instrument unless there are sufficient grounds to justify the decision notwithstanding that conflict. A relevant instrument includes a planning scheme such as City Plan 2014.

71. [71]
    As is well established, s. 326(1) of SPA is engaged where plainly identified conflict is identified^[36]. I am satisfied that the Appellant has demonstrated on the evidence that no such conflict arises in this case and s.326(1) of SPA is not engaged.

72. [72]
    If, contrary to these reasons, s. 326(1) of SPA was engaged by plainly identified conflict and the nature and extent of that conflict was characterised as serious, I am satisfied there are sufficient grounds to warrant approval despite the conflict.

73. [73]
    There is one ground that is, in my view, compelling and overwhelms any conflict if established. The ground can be stated as: the Council has made a decision to depart from the planning intent expressed in the key planning provision, namely overall outcome (7)(a) of the LMR zone code, and the nature of the departure favours approval of the development.

74. [74]
    Overall outcome (7)(a) of the LMR zone code was amended in December 2017, some 8 months after this appeal was commenced. The amendment, in my view, represents a material softening of the Council’s planning intent with respect to 3 storey development in the 2 to 3 storey mix precinct of the Low-medium density residential zone.

75. [75]
    The starting point in this regard is the Co-respondent by election’s case. The success of her case is reliant upon demonstrating conflict with overall outcome (7)(a) of the LMR zone code in force at the date the application was made. So much is clear from the submissions made on her behalf. Those submissions proceed on the footing that conflict is established with a number of provisions of City Plan 2014 as a consequence of the development not being within easy walking distance of a public transport node. This point, in turn, is said to found two further conflicts, namely that the proposed development should be 2, rather the 3 storeys in height, and does not respond to the nature of adjoining dwellings.

76. [76]
    In December 2017, overall outcome (7)(a) of the LMR zone code was amended and renumbered as (7)(b). It is now expressed in the following terms^[37]:

77. [77]
    The amendment to overall outcome (7)(a)(i) of the LMR zone code is material to this case. Overall outcome (7)(a)(i) as in force at the date the development application was made contained a clear expression of planning intent. The intent, as stated, was that development in the 2 to 3 storey mix zone would be no more than 2 storeys, save where it was located within easy walking distance to a public transport node. Where this qualification was satisfied, development would be no more than 3 storeys. This Court has recently held that the planning intent expressed in overall outcome (7)(a) of the LMR zone code is an important statement of planning intent that is worthy of respect^[38].

78. [78]
    The amendments made to overall outcome (7)(a) are material because they have the effect of removing the rigidity of the planning intent as expressed. In its amended form, overall outcome (7)(b) no longer intends that development is “no more than” 2 or 3 storeys. In the case of 2 storeys, the phrase “no more than” has been replaced with the concept of “predominance”.

79. [79]
    It has been recognised that “predominance” is a term that connotes flexibility rather than rigidity^[39]. It is not intended to convey exclusivity^[40]. Rather, the term in the context of overall outcome (7)(b)(i) of the LMR Zone code calls for an examination of building heights and a determination of what is the main, most abundant or strongest height element within the relevant area^[41].

80. [80]
    Recently, this Court in Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21 considered the significance of the amendments made to the overall outcome (7)(a) of the LMR zone code. I respectfully agree with her Honour Judge Kefford’s reasons at paragraph [113] where she said:

“[113]  In my view, the proper construction of this overall outcome, as it now appears in City Plan, is one that does not contain a prohibition. However, the overall outcome expresses a clear preference for two-storey development to predominate unless the development is within easy walking distance to a transport node. To adopt the language of Bowskill DCJ in Lake Maroona Pty Ltd v Gladstone Regional Council, two-storey development is to constitute “the main, most abundant, or strongest element” within the relevant area, but three-storey development is not excluded or prohibited, or necessarily in conflict with, or inconsistent with the purpose of, the Low-medium density residential zone code.” (emphasis added)

81. [81]
    On any objective comparison, it is clear that the amendments made to overall outcome (7)(a) of the LMR zone code represent an important and deliberate shift in the Council’s planning intent for the 2 to 3 storey mix precinct. That shift, in my view, has the effect of lowering the threshold to be crossed by a developer to demonstrate compliance with the LMR zone code for development in the 2 to 3 storey mixed precinct.

82. [82]
    A decision to approve the application would not conflict with the amended overall outcome that is renumbered as (7)(b) in the LMR zone code. It is clear from the evidence that Fairy Street has a predominance of development that is 1 to 2 storeys in height^[42]. The proposed development, if approved, will not alter that position. The predominant height of buildings in Fairy Street will remain unchanged. In such circumstances, the proposal being a 2 to 3 storey low-rise Multiple dwelling is expressly envisaged in the Low-medium density residential zone. The proposal will assist in achieving one of the stated purposes; it will add to housing diversity and achieve a sensitive transition to adjoin dwelling houses.

83. [83]
    As has long been recognised, a town planning appeal Court may depart from the planning intent of a local government if the local government itself has departed from that intent^[43]. It may also depart from the stated planning intent where it is found to have been overtaken by events^[44].

84. [84]
    This case is, in my view, an example where a planning authority has departed from the planning intent expressed in overall outcome (7)(a) of the LMR zone code. The departure is a formal one. It comprises a formal amendment to City Plan 2014. The formal amendment to City Plan 2014 in this way also establishes that the planning strategy expressed in overall outcome (7)(a) in its pre-December 2017 form has been overtaken by events. Both of these matters are grounds that justify an approval despite conflict with City Plan 2014 in the circumstances of this case.

85. [85]
    There are two matters in combination that, in my view, demonstrate that there are sufficient grounds to approve the application here despite any conflict alleged by the Co-respondent by election. First, I am satisfied that this is a case where the conflict with the central planning scheme provision, namely overall outcome (7)(a) of the LMR zone code has been overtaken by events, in a way that favours approval. Second, the proposed development, if approved, will not give rise to any unacceptable impacts on amenity. The proposal is a carefully considered proposal that is tailored to its location.

86. [86]
    For completeness, I note the Appellant identified a number of planning grounds that contends would warrant approval of the application despite conflict with City Plan 2014. It is unnecessary for me to consider those grounds and their sufficiency given what I have said above. I am satisfied that, even assuming serious conflict with City Plan 2014, there are sufficient grounds to warrant approval for the purposes of s. 326(1) of SPA.

87. [87]
    Further, I would observe that it should not be assumed that I was satisfied that the conflict with City Plan 2014, if established, was serious or significant. I was prepared to assume that it was serious for the purposes of examining whether sufficient grounds existed to justify an approval under s. 326(1) of SPA. This was a matter I was prepared to assume in favour of the Co-respondent by election.

88. [88]
    If I had been called upon to give specific consideration to the nature and extent of the conflict arising in the circumstances of this case, I would have had difficulty accepting that the conflict was characterised as serious or significant given the following factors:

1. (a)
   the subject land is included in a precinct described as a 2 to 3 storey mix precinct and the proposed development is designed to be 2 to 3 storeys in height;

2. (b)
   development anticipated in the 2 to 3 storey mix precinct in the Low-medium density residential zone may achieve a height of up to 9.5 metres and may conform with the following description^[45]:

“Provide for a mix of dwelling types including dwelling houses, 2 to 3 storey low rise multiple dwellings (such as apartments and row houses) and dual occupancy in the 2 to 3 storey mix zone precinct, to provide housing diversity and a sensitive transition to adjoining sites that contain dwelling houses and between busier roads and centres and lower density residential areas.”

The proposed development is less than 9.5 metres in height and conforms with the description above. The evidence clearly establishes that a sensitive transition will be achieved with the land to the west that is developed with a dwelling house. There will be a separation of some 21 metres from the proposal to that house with an intervening landscape screen that includes deep planting;

3. (c)
   the proposed development, if approved and constructed, would be consistent with existing development in Fairy Street in that it would have the same number of storeys, but be shorter than, the existing Multiple dwelling located on the land immediately adjoining to the north; and

4. (d)
   this is a case where an approval will not give rise to any unacceptable impacts on amenity. The Co-respondent did not submit that a decision to approve the application would give rise to any of the usual indicators of overdevelopment^[46] of land by reason of building bulk, height and scale. Those indicators typically include: insufficient setbacks, insufficient provision of landscaping and private open space, insufficient on-site car parking, overshadowing, loss of daylight, loss of privacy, loss of breezes or an absence of building articulation and visual interest.  No submission was made that indicators of this character would arise having regard to the evidence in the case.

Conclusion

89. [89]
    The appellant has discharged the onus and established that the appeal should be allowed in due course.

90. [90]
    Subject to hearing from the parties, I am minded to make the following orders:

1. (a)
   by 4pm on 3 August 2018 the Respondent provide a draft suite of conditions to the Appellant and Co-respondent by election; and

2. (b)
   the appeal be reviewed at 9.15am on 17 August 2018.