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- Unreported Judgment
Smout v Brisbane City Council QPEC 10
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Smout v Brisbane City Council  QPEC 10
BRISBANE CITY COUNCIL
Planning and Environment Court
Applicant appeal against refusal
Planning and Environment Court, Brisbane
22 March 2019
28 and 29 February, 1 March 2019
Williamson QC DCJ
Orders made in accordance with paragraph 60 of these reasons for judgment.
PLANNING AND ENVIRONMENT – APPEAL – where appeal against the refusal of a development application seeking approval to realign boundaries of land and a material change of use for a dwelling house on a small lot – where land included in the Character residential zone – where minimum lot size in the zone is 450 square metres – where resulting lot size smaller than the prescribed minimum – whether new lots will maintain a block pattern that accommodates traditional backyards and large trees – whether the application should be approved in the exercise of the discretion.
Planning Act 2016 (Qld), ss.5, 45 and 60.
Planning & Environment Court Act 2016, s.45.
Bell v Brisbane City Council  QCA 84
Jackson v Brisbane City Council  QPELR 264.
Parmac Investments Pty Ltd v Brisbane City Council & Anor  QPELR 1026
Ms H Stephanos for the Appellant
Mr J Ware for the Respondent
Holding Redlich for the Appellant
City Legal for the Respondent
- The Appellant is the owner of landsituated at the corner of Abbott and Massey Street, Ascot (the land). The land is 810m2 in size, and comprises two rectangular lots that are in the order of 10m wide x 40m long. The lots are orientated with their narrowest width presenting to Abbott Street. The land is improved with a pre-1947 traditional character dwelling, which is orientated to Abbott Street, and straddles the two lots. The dwelling, unlike those that surround it, has a modest footprint and is ripe for redevelopment. Surrounding dwellings are predominantly traditional character buildings, many of which have been renovated, and extended. The Ascot State School is located to the north-west of the land on Massey Street.
- In late November 2017, the Appellant made an impact assessable development application to the Council for a suite of approvals to redevelop the land. The proposed redevelopment involves realigning the boundaries of the land to create two square lots, both in the order of 400m2. The proposal, if approved, would create two lots that are side-by-side. One of the lots will be a corner lot that is about 20m wide x 20m long. The second lot will have frontage to, and take access from Massey Street. It will be in the order of 20m wide x 20m long. The existing dwelling is proposed to be partially demolished, repositioned and renovated. It is to be repositioned on the new lot having frontage to Abbott Street. There is no built form proposed for the new lot with frontage to Massey Street. It will remain vacant for future development.
- The development application was assessed and decided by the Council’s delegate under the Planning Act 2016 (PA). In May 2018, the delegate decided to refuse the application. The decision notice communicating the delegate’s refusal contains five reasons for refusal. This is an appeal against that decision. It is for the appellant to establish that the appeal should be upheld.
- The disputed issues in the appeal are limited in scope, and relate to the boundary realignment aspect of the proposal. It is the Council’s case that the application should be refused because the size and shape of the new lots resulting from the proposed boundary realignment would be inappropriate, and lead to an inappropriate built form outcome. These criticisms of the proposal are said to manifest in significant non-compliance with City Plan 2014. Three particular aspects of City Plan 2014 are relied upon by the Council. It alleges the proposal would not comply with the Strategic framework, Character residential zone code and Subdivision code. Mr Ware, who appeared for the Council, fairly conceded that the Character residential zone code is the primary focus for the determination of the appeal.
- The land is included in the Character precinct of the Character residential zone under City Plan 2014. The purpose of the zone will be achieved through the stated overall outcomes for the zone. The zone code does not include performance outcomes or acceptable outcomes that implement the overall outcomes. The stated overall outcomes fall into one of two categories: (1) overall outcomes that apply to all land included in the zone; and (2) overall outcomes that apply to land included in one of two precincts in the zone. The Council relies upon two overall outcomes in the zone code, namely overall outcome (5)(a) and (6)(d).
- Overall outcome (5)(a) is relevant to development ‘form’, and applies to all land in the zone. It states:
“(a) Development occurs on an appropriately sized and configured lot and is of a form and scale that reinforces a distinctive subtropical character of low rise buildings set in green landscaped areas.”
- Overall outcome (5)(a) contemplates that development will occur on lots that are appropriately sized, and configured. The Council emphasised the importance of lot size in the zone, which was said to be ‘highlighted’ by overall outcome (5)(a). As to what constitutes an appropriate lot size, the Council submits this is articulated in an overall outcome of the zone code specific to the Character zone precinct, namely overall outcome (6)(d). It is one of four overall outcomes specific to the precinct, and is relevant to the reconfiguration of land. The provision states:
“(d) Development provides for a minimum lot size of 450m2 to maintain a block pattern that accommodates traditional backyards and large trees.”
- The proposed boundary realignment, if approved and perfected, would create two lots with a resulting lot size less than 450m2, and would be in the order of 400m2. The Council pointed out that this resulting lot size would be more akin to development anticipated in the Low density residential zone. I accept this submission, but pause to observe that the reconfiguration would not create any additional lots, and the existing lots are already consistent with the lot sizes anticipated in the Low density residential zone. The existing lots are in the order 400m2.
- The Council submits that the proposed boundary realignment would amount to a significant non-compliance with overall outcome (6)(d) of the zone code, which warrants refusal of the application. In support of this submission, the Council invited the Court to adopt, and apply, what her Honour Judge Kefford said in Jackson v Brisbane City Council  QPELR 264, at paragraph . In that part of the judgment, her Honour was dealing with overall outcome (5)(b) of the Low density residential zone code in City Plan 2014, and said:
“ As can be seen from the quote above, overall outcome (5)(b) of the Low density residential zone code contains a quantitative statement of intent, namely that rear lots have a minimum lot size of 600 square metres. It is uncommon for an overall outcome, as opposed to a performance outcome or acceptable outcome, to be expressed in quantitative terms. As was submitted by Council, this evinces a deliberate intention that the quantitative measure contained in the overall outcome is not intended to be flexible, particularly where the Code in question does not contain “alternatives” in the form of performance outcomes or acceptable outcomes. The establishment of rear lots of the order of no less than 600 square metres is evidently one of the values that is desired to be retained in the Low density residential zone with very little visible change over the life of the planning scheme.” (emphasis added)
- I do not accept the above statement equally applies to overall outcome (6)(d) of the Character residential zone code. In the first instance, it relates to a different overall outcome in a different zone code that is differently expressed. Further, whilst it is correct to say that overall outcome (6)(d) includes a quantitative measure like the overall outcome considered by her Honour, it is not, in terms, limited to the expression of an empirical standard.
- Overall outcome (6)(d) includes an empirical standard for the minimum lot size in the zone, coupled with a qualitative statement that identifies the planning rationale underlying the empirical standard. The expression of this rationale, coupled with the empirical standard, in my view, opens the door for an applicant to urge the assessment manager (and this Court on appeal) to adopt a flexible approach to the exercise of the planning discretion. It is open to an applicant to demonstrate that the underlying planning rationale is met, despite a departure from the empirical standard. The extent to which a flexible approach will prevail turns on the facts and circumstances of each case. It will also turn, in part, on the fact that overall outcome (6)(d) does not, and cannot, purport to operate as a prohibition on development involving lots less than 450m2 in size.
- There is no dispute that the new lots, if created, would be less than 450m2 in size. The dispute between the parties focuses on the words that follow the quantitative measure in overall outcome (6)(d). At the risk of repetition, those words are “to maintain a block pattern that accommodates traditional backyards and large trees”. It is the Appellant’s case that, while the proposed boundary realignment will result in lots smaller than 450m2, it will nonetheless be consistent with the underlying planning rationale for overall outcome (6)(d).
- The Council accepts that the words following the quantitative measure in overall outcome (6)(d) provide an ‘explanation’. I have taken this to be a concession that the explanation is the planning rationale underlying the prescribed minimum lot size in the zone. The Council joins issue with the contention that the proposal is consistent with the explanation. It does however accept that consistency with the underlying planning rationale for overall outcome (6)(d) is a complete answer to the reasons said to warrant refusal of the application.
- The sensible position adopted by the Council means the outcome in this appeal turns, in large measure, on the determination of this question: will the proposed reconfiguration maintain a block pattern that accommodates traditional backyards and large trees?
- The ‘block’ that was closely examined on the evidence was the area bounded by Massey Street, Abbott Street, Windermere Road and Crescent Road. In that block, there are fifteen lots, all of which are rectangular in shape. Notwithstanding this, the block pattern is not uniform. It is variable in terms of lot size, which Mr Ovenden described as being a ‘mixed bag’. The variability in the block pattern also manifests itself in the width to depth ratio of the lots. Whilst all of the lots are rectangular, some are narrower than others.
- Eleven of the fifteen lots in the ‘block’ are developed with traditional character dwellings. Three of these dwellings straddle two lots, including the dwelling on the land. All of the traditional character dwellings in the block, save for the dwelling on the land, are substantial in size, and have large footprints. The large size of the existing dwellings in the block has the consequence that many lots have a small backyard.
- The evidence established that less than half of the eleven dwellings in the block have backyards exhibiting some, but not all, of the characteristics consistent with a ‘traditional backyard’. Two of the existing traditional character buildings in the block are located on corner sites, and have no backyard. The nature and extent of existing landscaping in backyards within the block, and local area, varies on an expansive spectrum. The spectrum includes, at one end, yards that are turfed with mature landscaping, and at the other end, yards dominated by concrete and hardscaping.
- The town planning witnesses described a traditional backyard as being an area located to the rear of a dwelling, providing open space for recreation and associated facilities (such as a pool and clothes line). It was implicit in Mr Mulcahy’s views and the Council’s case that a ‘traditional backyard’, in a general sense, was intended to capture a significant area at the rear of a residential lot. By way of illustration, the land as presently development is one of the properties in the block that has a ‘traditional backyard’ of this kind. This is the direct product of the lot size, and the modest footprint of the existing dwelling.
- If a superficial approach is adopted to the assessment of the proposed boundary realignment against overall outcome (6)(d), I accept an approval, if perfected, would do five things: (1) create two lots that are less than 450m2; (2) would introduce two square lots into a block pattern that is essentially rectangular; (3) would remove two rectangular lots from the block pattern that can accommodate a traditional backyard and a large tree; (4) create a new lot, improved by a repositioned traditional character dwelling that has a front yard and no backyard (Abbott Street lot); and (5) would create a lot that will facilitate the provision of a small backyard, with limited potential to accommodate a large tree (Massey Street lot). The Council contends that each of these matters, in combination, establish the proposed boundary realignment is contrary to the deliberate (and inflexible) planning decision embodied in overall outcome (6)(d). This, in turn, is said to warrant refusal of the application.
- The Council’s case for refusal of the application is not without force. It is supported by a provision of the Character residential zone code that expressly discourages what is proposed, in a quantitative sense. The Council’s insistence on the rigid application of City Plan 2014 is understandable given the resulting lots will be less than the prescribed minimum. That said, it is my view that the Council’s case is founded upon a superficial approach to overall outcome (6)(d), and the planning rationale that underlies it. The Council’s approach does not appropriately take into account, and reflect, a number of contextual features emerging from City Plan 2014, and the evidence. It is these features that are the focus of the Appellant’s case.
- Having regard to the Appellant’s submissions, and the evidence, I accept there are six contextual features that are relevant to, and ultimately determinative of, the exercise of the planning discretion in this case.
- First, it is true to say that an approval, if granted and perfected, would replace two rectangular lots with two square lots, each less than 450m2. This would occur in circumstances where the prevailing lot shape in the block, and surrounding area is generally rectangular. This point does not however take the matter very far. Overall outcome (6)(d) does not purport to discourage any particular lot shape in preference to another. It does not require a new lot to be the same shape as existing lots. The provision, in its terms, prescribes a minimum lot size, and is silent as to shape.
- In this context, the creation of two square lots in the block pattern does not fall outside what is anticipated in the zone by overall outcome 6(d). This, in my view, is a strong indicator that the two newly created lots would not, by virtue of their shape, give rise to any appreciable adverse planning consequence.
- Second, it is true to say that an approval, if granted and perfected, would remove two rectangular lots from the block, which provide a large backyard and can accommodate a large tree. This, at first blush, appears to strike at the heart of overall outcome (6)(d). However, this loses its force once it is appreciated that City Plan 2014 does not seek to maintain the status quo in the Character residential zone. City Plan 2014 anticipates that land in the zone may be developed. This includes the land the subject of the application. The nature of the future development envisaged may involve redeveloping the existing dwelling in a manner that produces a similar result to that proposed by the Appellant in his application.
- A development application could be made to the Council to renovate and extend the existing pre-1947 dwelling on the land. If the dwelling was developed in a manner similar to surrounding dwellings, as is anticipated by City Plan 2014, the renovation could be expected to involve a substantial extension to the footprint of the dwelling. This would, in turn, reduce the area of land available for a backyard, leaving only a modest space to the rear of any extension. This area would not be dissimilar in size to that which may be anticipated for future development on the proposed lot having frontage to Massey Street.
- As Ms Stephanos pointed out, any renovation of the pre-1947 dwelling need only provide a modest setback to the side and rear boundaries, in the order of a few metres. A set back of this distance is unlikely, in my view, to maintain a ‘traditional backyard’ in a general sense. It would, however, maintain a traditional backyard that is in keeping with the character of the area in which the land is located. As the evidence confirms, backyards in the locality vary significantly in size, shape and functionality.
- Third, the proposed development involves repositioning the pre-1947 dwelling and, on the evidence, will have no backyard. The new lot, with the repositioned and renovated pre-1947 dwelling, will only have a front, and side yard. This is one of the Council’s strongest criticisms of the proposed redevelopment. It is, however, a criticism that has force in the abstract, but ignores the existing character of the area. The existing character of the area includes traditional character housing that does not have a backyard.
- This occurs at two properties in close proximity to the land, namely the lots on the corners of Windermere Road and Abbott Street, and Windermere and Crescent Roads. In both cases, the land is developed with a traditional character house and has no backyard. Both properties are corner sites with traditional houses positioned close to rear and side boundaries, leaving the front yard as the primary area of open space. The front yards of these properties make a positive contribution to the traditional character of Abbott Street, Windermere Road, and Crescent Road.
- The proposed redevelopment, consistent with the character of the area, will utilise its corner block setting. It will provide landscaping and open space that is located between the frontage, and the repositioned pre-1947 dwelling. This will ensure that development is set in a green landscaped setting, which can be appreciated from Massey and Abbott Streets. This is an outcome expressly encouraged by overall outcome (5)(a) of the Character residential zone code. In this context, the positioning of the renovated pre-1947 dwelling on the new corner lot will have no unacceptable impact on the character of the area. Nor will it have any appreciable adverse planning consequence.
- Fourth, the Council’s assessment of the proposed boundary realignment focussed on provisions of City Plan 2014 that are said to warrant refusal. That is to be expected given its position in the appeal. The exercise of the planning discretion to decide an impact assessable application however requires more than an examination of provisions that are said to warrant refusal. The assessment also calls for an examination of those provisions of the planning scheme that favour approval. This is clear enough from the assessment process prescribed under s.45(5) of PA. This provision mandates that an application must be assessed against, inter alia, a planning scheme. The provision does not limit the assessment to an examination of planning provisions that work against approval, or provisions that are the subject of an allegation of non-compliance.
- The extent to which the redevelopment is anticipated by City Plan 2014 is, in my view, material to the exercise of the planning discretion in this case. A persuasive starting point is the purpose of the zone in which the land is included. The redevelopment will be consistent with the underlying purpose of the Character residential zone. The purpose of the zone is contained in s.22.214.171.124(1) of City Plan 2014, which states:
“(1) The purpose of the character residential zone is to:
(a) ensure the character of a residential area is protected or enhanced;…”
- The above provision of City Plan 2014 calls for an assessment of the proposed redevelopment: (1) having regard to the character of the area in which it is proposed; and (2) to determine whether it will protect or enhance the identified character of the area. The first of the two matters is examined, in part, by reference to the overall outcomes in the Character residential zone code, not just overall outcome (6)(d) with which non-compliance is alleged. It will also be examined, in part, having regard to the Strategic framework in City Plan 2014. The Strategic framework, in my view, is of particular assistance in this case.
- The Strategic framework in City Plan 2014 sets out the policy direction for the planning scheme. Section 3.1(1) expressly states that the policy direction forms the basis for ‘ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme’. The Strategic framework is structured such that it includes 5 themes that collectively represent the policy intent of the scheme. One of the themes relevant to the Character residential zone is theme 5, ‘Brisbane’s CityShape’. Overall outcome 3(a)(ii) of the Character residential zone code provides that development in the Character residential zone supports the implementation of the policy intent of theme 5.
- Each theme in the Strategic framework has a statement of strategic outcomes. Section 3.7.1(1)(g) is one of the strategic outcomes for theme 5 and provides, in part:
“(g) Brisbane's Suburban Living Areas represent the majority of established residential suburbs in Brisbane, where growth occurs in response to local needs and impacts on local amenity and values are carefully considered. Brisbane's Suburban Living Areas comprise the following:
(i) low density residential areas where the majority of development is housing in the form of detached dwellings ranging from small cottages to large family homes on lots typically in the range of 400–800m2;
(iii) localities identified in overlays, neighbourhood plans and the zoning patterns as having a particular character or value that is desired to be retained with very little visible change over the life of the planning scheme;
(iv) areas of character housing and commercial character buildings substantially constructed in 1946 or earlier; …”
- The above strategic outcome contemplates that localities have a particular character, or value, that is desired to be retained. Very little visible change over the life of the planning scheme is envisaged to that character or value. This does not mean there will be no change over the life of the planning scheme. It is not a scheme to maintain the status quo. Rather, the ‘very little visible change’ anticipated is that expressed in, inter alia, the relevant zone or overlay codes. Here, the Character residential zone and Traditional building character overlay apply. Future development is anticipated in this zone, and overlay area. The future development envisaged includes further reconfiguration of land, subject to the requirements of the zone code and overlay codes.
- The nature and extent of the ‘very little visible change’ anticipated is, in my view, informed in this case by the purpose of the Character residential zone. The purpose of the zone is to protect, or enhance the character of a residential area included in the zone. The relevant part of the zone in this case, on any view of the evidence, exhibits a strong traditional character. In the immediate block where the land is located, there is a clear predominance of character housing.
- The elements that make up the valued character of an area will be many. One element, having regard to overall outcome (6)(d) of the Character residential zone, will be the existence of ‘traditional backyards’. The character of the backyards in the surrounding area, including the block referred to earlier, is ‘mixed’. On the evidence, existing backyards in the block vary in shape, size and functionality. Some houses do not have backyards, but because of their corner position, have extended side or front yards. Some backyards have pools and clotheslines. Other backyards do not. Some properties are dominated by built form which has the consequence that no backyard can be identified at all. In the result, it is my view that traditional backyards are not a strong feature of the character of the block in which the land is included, let alone the locality.
- The point the Appellant makes, and I accept, is that the proposed redevelopment will be consistent with, and maintain, the character of the area, particularly the extent to which that character is defined by the existence of traditional backyards. It will achieve this outcome because the proposed redevelopment will maintain, and reinforce, the mixed character of the area. This character is not influenced by the existence of traditional backyards.
- Overall outcome (6)(d) prescribes an empirical standard for the minimum lot size in the zone, being 450m2. The purpose of the empirical standard is “to maintain a block pattern that accommodates traditional backyards and large trees. The block pattern here does not accommodate traditional backyards in a general sense. The nature, size and function of backyards in the block vary significantly. In this way, the proposed reconfiguration will meet the underlying planning rationale for overall outcome (6)(d), having regard to specific locational attributes. This, in my view, means it is difficult to identify any adverse planning consequence arising from the resulting lot sizes of the new lots, being less than the minimum lot size stated for the zone.
- Further, having regard to the evidence, it is my view that the proposed redevelopment will, notwithstanding the resulting lot sizes, make a positive contribution to the character of the area, and thereby be consistent with the purpose of the Character residential zone. This is because the proposed development:
- (a)will not visually disrupt any rhythm of lots or patterns of development in Massey or Abbott Streets;
- (b)will not visually disrupt any rhythm of lots or patterns of development in the wider locality, being one that is a ‘mixed bag’;
- (c)will facilitate the land being developed with an anticipated lawful use in the zone, namely the retention, renovation and re-use of a tired pre-1947 character house; and
- (d)will facilitate the land being developed (sometime in the future) with a lawful use that is consistent with development anticipated in the zone, namely a dwelling that is designed to comply with the Traditional building character (design) overlay code.
- Fifth, it is relevant context to consider the underlying planning purpose of the requirement for development to maintain a block pattern that complies with overall outcome (6)(d) of the Character residential zone code. What is the planning purpose? That purpose is, in my view, identified having regard to two provisions of City Plan 2014.
- The Strategic framework in City Plan 2014, as I have already said, contains a number of themes. Theme 2 deals with Brisbane’s outstanding lifestyle. Development in the Character residential zone is said to support the implementation of the policy direction set out in theme 2. Table 126.96.36.199 forms part of the theme 2 provisions. It includes Specific outcome SO8 and Land use strategy L8, which in the context of ‘sense of place’ state:
Sense of place
Brisbane’s backyards contribute strongly to local character by providing green landscapes in urban areas.
Development in low density areas of Suburban Living Areas predominantly maintains a block pattern that accommodates backyards and large trees.
- Specific outcome SO8 provides an insight into why, from a planning perspective, this planning authority recognises that backyards contribute to local character. It recognises that backyards contribute strongly to local character by providing ‘green landscapes’ in urban areas.
- The specific outcome does not require every backyard in Brisbane to provide a green landscaped space. This is supported by Land use strategy L8 which speaks of a predominance of development maintaining backyards and large trees. A ‘predominance’ of development is not, having regard to the plain meaning of the word, intended to convey exclusivity.
- The Character residential zone code is consistent with the above provisions of the Strategic framework in that, it too, recognises that green landscaped areas contribute to the character of an area. Overall outcome (5)(a) of the zone code, which is set out in paragraph  above, encourages development that is on an ‘appropriately sized and configured lot’ and ‘is of a form and scale that reinforces a distinctive subtropical character of low rise buildings set in green landscaped areas’.
- The evidence establishes that the adjoining land to the south is well vegetated with large mature trees. The aerial photographs, and oral evidence, confirmed that this vegetation is located in an area about 1m in width, for a substantial part of the length of the common boundary. There is no suggestion that this landscaping will be removed. The new development on the land would be seen against the backdrop of that vegetation. It would also have the benefit of landscaping provided on the land itself as part of the redevelopment. In this way, the development, including any future development on the lot fronting Massey Street, will be set in a green landscaped setting. This will be consistent with the provisions of the Strategic framework set out above and, in my view, is a further indicator that the proposed boundary realignment will have no appreciable adverse planning consequence.
- Finally, land included in the Character residential zone is also subject to the requirements of the Traditional building character overlay under City Plan 2014. There are two codes in City Plan 2014 applicable to the overlay, namely the Traditional building character (design) overlay code and the Traditional building character (demolition) overlay code. These codes contain an express reference to a supporting planning scheme policy, namely the Traditional building character planning scheme policy. There is no suggestion that the proposed redevelopment fails to comply with these codes, read with the benefit of the planning scheme policy.
- The inference to be drawn in the circumstances is that the proposed redevelopment is consistent with the type of development anticipated in the Traditional building character overlay area. That is to say, the proposed redevelopment will be consistent with the valued character of the area that is sought to be protected and retained, namely traditional character and traditional building character.
- Against the background of the six contextual matters set out above, I am satisfied the proposed boundary realignment, if approved and perfected, would result in two new lots smaller than the prescribed minimum in the Character residential zone. The departure from the prescribed minimum will not sound in any unacceptable impacts on character, or amenity. Further, it will not sound in any appreciable adverse planning consequence.
- The development application before the Court is impact assessable. The Court stands in the shoes of the assessment manager, who has a broad discretion to decide an impact assessable application. The discretion to be exercised is contained in s.60(3) of the PA, and requires the application to be decided in one of three ways. This includes a refusal, or granting an approval subject to conditions.
- The planning discretion conferred under the PA to decide an impact assessable application is broad. It is to be exercised subject to three requirements: (1) it must be based on the assessment carried out under s.45 of the PA; (2) the decision making function must be performed in a way that is consistent with s.5(1) of the PA, namely the assessment and decision making function must be performed in a way that advances the purpose of the Act; and (3) the discretion is subject to any implied limitation arising from the purpose, scope and subject matter of the PA. The exercise of the discretion will inevitably involve a balancing exercise. The balance that is struck in any given case is no longer mandated by the existence of ‘conflict’ with a planning scheme, and the absence of ‘sufficient grounds’. In this way, the discretion conferred by s.60(3) of the PA admits of more flexibility for an assessment manager (or this Court on appeal) than its statutory predecessors.
- In the exercise of the planning discretion, I am satisfied that the issues advanced by the Council in this appeal do not warrant refusal of the application. This is so for the following reasons.
- It is correct to say that the application, at face value, is not anticipated by City Plan 2014 by reason of the proposed new lot sizes. This, at first blush, appears to be a matter of import as it is at odds with the prescribed minimum lot size specified for the Character residential zone. The zone code provides no ability to advance an alternative performance based solution based on lot size alone. This is unusual in a performance based planning scheme. However, given the matters set out in paragraphs  to  above, this is not determinative in this case.
- As I have already said, the planning discretion to be exercised does not mandate that the application must be refused because a non-compliance with an assessment benchmark, namely a planning scheme, has been identified. Given the size, and complexity of modern performance based planning schemes, not every non-compliance, in my view, will warrant refusal. Each non-compliance should be examined having regard to: (1) the verbiage of the planning scheme; and (2) proper town planning practice, and principle. The verbiage of the planning scheme is to be examined to ascertain the planning purpose of, and degree of importance attached to compliance with, a particular planning principle. The extent to which a flexible approach to the exercise of the discretion will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.
- I have considered City Plan 2014, and the importance it attaches to the stated empirical measure for the minimum lot size in the Character residential zone. The proposal, for the reasons set out in paragraphs  to  above, will result in lot sizes less than the empirical measure, but will be consistent with the planning rationale that underlies the purpose for the empirical measure. An approval authorising a departure from the prescribed minimum lot size in the zone will have no adverse planning consequence. To maintain a refusal of the application in these circumstances would, in my view, amount to a slavish and inflexible adherence to a prescribed minimum lot size as if it were an end in itself.
- Section 5(1) of the PA requires the Court to exercise its function under the PA in a way that advances the purpose of the Act. The Council did not contend that an approval would be contrary to, or fail to advance the purpose of the PA. I am, in any event, satisfied that an approval would advance the purpose of the PA. It will do so by facilitating development that will have no unacceptable impacts on amenity or character and, save for the expressed minimum lot size, will comply with the adopted planning controls in all other respects. A decision to grant an approval in these circumstances would be consistent with s.5(2)(i) of the PA, which states:
“(2) Advancing the purpose of this Act includes –
(i) applying amenity… in the built environment in ways that are …of public benefit;..”
- It has been recognised that a planning scheme is to be treated as an expression of public benefit, in a planning sense. City Plan 2014 anticipates that development in the Character residential zone will reinforce and protect the character of the zone. This is a statement of public benefit. The proposed development will achieve this stated public benefit. Development that complies in this way with City Plan 2014 will, in my view, result in the application of amenity in the built environment in a way that is of public benefit, thereby advancing the purpose of the PA.
- The list of disputed issues tendered on the first day of the hearing identified that the Council would contend that an approval would not comply with a number of provisions of the Strategic framework, Character residential zone code and Subdivision code. I have dealt with the provisions raised in the zone code. As to the balance of the provisions relied upon, it is unnecessary for me to consider them further given two matters: (1) Mr Ware fairly conceded that the central issue to be determined in this case will turn on overall outcome (6)(d) of the Character residential zone code, which I have considered; and (2) it was accepted that the provisions raised in the Subdivision code seek to implement what is intended in the zone, which I have considered.
- In any event, the additional planning scheme provisions raised by the Council in support of its case do not, in my view, warrant refusal of the application. The provisions do not, in terms, raise any additional planning consideration that warrants refusal of the application over and above what I have considered above.
- For these reasons, I am satisfied the Appellant has discharged its onus, and the delegate’s decision to refuse the application should be set aside. The decision should be replaced in due course with an approval, granted subject to conditions. The appeal will be adjourned for the parties to agree on a suite of conditions. The orders of the Court will be:
- (a)by 4pm on 5 April 2019, the Respondent is to provide a draft suite of conditions to the Appellant;
- (b)the appeal be listed for review at 9.15 am on 10 April 2019.
 As a tenant in common.
 s.45(1)(a) of the Planning and Environment Court Act 2016.
 The minimum lot size in that zone is 400m2, where not a rear lot.
 Overall outcome (3)(a)(i) of the Character residential zone code.
 Being ‘relevant matters’ for the purpose of s.45(5)(b) of the PA.
 Bell v Brisbane City Council & Anor  QCA 84 and Parmac Investments Pty Ltd v Brisbane City Council  QPELR 1026.
- Published Case Name:
Smout v Brisbane City Council
- Shortened Case Name:
Smout v Brisbane City Council
 QPEC 10
Williamson QC DCJ
22 Mar 2019