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Toro v Brisbane City Council[2019] QPEC 53

Toro v Brisbane City Council[2019] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Toro v Brisbane City Council & Anor [2019] QPEC 53

PARTIES:

JOHN WILLIAM ANTONIO TORO

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

PETER CHARLES HAYES

(Co-Respondent by Election)

FILE NO:

4223/18

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

1 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23-24 October 2019

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a material change of use to reposition an existing pre-1946 dwelling house and reconfigure a lot to create an extra lot in the character residential zone

ASSESSMENT – compliance with the planning scheme – whether the proposed development accommodates a traditional backyard and otherwise complies with the planning scheme

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES:

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

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

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317

Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5

Smout v Brisbane City Council [2019] QPEC 10

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

COUNSEL:

H Stephanos for the appellant

K Buckley for the respondent

B Rix for the co-respondent by election

SOLICITORS:

Norton Rose Fulbright Australia for the appellant

Brisbane City Legal Practice for the respondent

Keypoint Law for the co-respondent by election

Introduction

  1. [1]
    This is an appeal against the refusal by the respondent of a development application for a development permit for a material change of use (dwelling house on a small lot in the Traditional Building Character Overlay (“TBCO”)) and reconfiguring a lot (1 into 2 lots in the Character Residential Zone (“CRZ”)) in respect of land situated at 748 Sherwood Road, Sherwood (“the Land”). Essentially, the appellant proposes to reposition the existing pre-1946 dwelling house to the north to allow for the reconfiguration of the Land into two small lots.[1]
  1. [2]
    The appellant brought a minor change application which was approved by an order of the court on 7 August 2019. This had the effect of providing an indicative building footprint for a future dwelling house on proposed lot 2.[2]  As a consequence, the respondent changed its position such that it supported approval of the development application on the condition of the amended plans reflecting this change.  Accordingly, at the hearing of the appeal it did not call evidence and supported the position of the appellant that the appeal should be allowed on this basis.[3] 

The land and the surrounding area

  1. [3]
    The Land is rectangular in shape with an area of 817m2.  Ithas a frontage to Sherwood Road to the north of approximately 20m and Dewar Terrace to the west of approximately 40m.  Along the Sherwood Road frontage there are three large Poinciana trees and there are some smaller trees along the Dewar Terrace frontage.  The land contains a pre-1946 dwelling house which exhibits traditional building character.  It is orientated towards the Sherwood Road frontage and setback approximately 9m from it and approximately 1.5m from the Dewar Terrace boundary.  There are two vehicular crossovers taking access from Dewar Terrace.[4]
  1. [4]
    Pursuant to the respondent’s planning scheme, Brisbane City Plan 2014 (“the planning scheme”), the Land is within the Suburban Living Area and included in the CRZ. It is within the TBCO and located within the Sherwood-Graceville District Neighbourhood Plan (“SGDNP”) but not contained within any nominated precinct of it.[5]  Significantly, the land is within a large block of CRZ land which extends to include the land of the co-respondent by election immediately to the south.[6]  The block in which the Land is located is bounded by Sherwood Road, Dewar Terrace, Jolimont Street to the south and Lilly Street to the east.  The northern portion of this block is within the CRZ but the balance, containing the majority of the block, is within the Low Density Residential Zone (“LDRZ”).[7]  The TBCO corresponds with the CRZ.[8]  Dwellings within the block which are situated within the LDRZ vary in size and architectural character.[9]  To the west of the Land, on the opposite side of Dewar Terrace, there is a considerable amount of parkland consisting of the John Herbert Memorial Vista Park and the Sherwood Aboretum.[10]  The Sherwood train station is located approximately 160m northeast of the land,[11] and the Sherwood Road District Centre is approximately 200m to the east.[12]

The proposed development

  1. [5]
    The proposed development seeks to reposition the pre-1946 dwelling house on the Land closer to the Sherwood Road frontage resulting in a 5.99 m setback to Sherwood Road.[13]  The 1.5m setback to Dewar Terrace will not change.  Two freehold lots would be created, proposed lot 1 containing the existing house with an area of 416m2 and the dimensions of 20.6m x 20.1m, and proposed lot 2 which would be 406m2 with dimensions of 20m x 20.3m.[14]  The two existing accesses from Dewar Terrace are proposed to be retained to provide vehicular access to each of the proposed new lots.[15]  It is intended that the existing house will continue to be orientated towards the Sherwood Road frontage.[16]
  1. [6]
    As noted above, as a consequence of the order of the court made on 7 August 2019 there is now an indicative building footprint for a future dwelling house on proposed lot 2. It discloses the following setbacks: a front boundary setback to Dewar Terrace ranging from 4m to 4.5m, a rear boundary setback ranging from 5.5m to 6m, a side boundary setback to the north which adjoins proposed lot 1 of 1m, and a side boundary setback to the land owned by the co-respondent by election of 2m.[17]

The legislative framework

  1. [7]
    It is uncontentious that at the time the development application giving rise to this appeal was lodged, the Planning Act 2016 (“PA”) was in force.  Pursuant to the Planning and Environment Court Act 2016 (“PECA”), s 45 of the PA applies as if the court were the assessment manager for the development application.[18]  As the proposed development is impact assessable, s 45(5) of the PA applies.  It provides that the assessment must be carried out against the relevant assessment benchmarks, which, in the case of the appeal before me, are the relevant provisions of the planning scheme.[19]  Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[20]  The appeal is by way of hearing anew,[21] and the appellant must establish that the appeal should be upheld.[22]  The court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide—

  1. to approve all or part of the application; or
  2. to approve all or part of the application, but impose development conditions on the approval; or
  3. to refuse the application.”
  1. [8]
    In undertaking this task it is important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:

“…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”[23]

However, as Williamson QC DCJ recently observed in Ashvan Investments Unit Trust v Brisbane City Council & Ors:

“[53] An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s.60(3) of PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. …. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s.60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.”[24]

  1. [9]
    As I observed in Hotel Property Investments Ltd v Council of the City of Gold Coast:

“[13] Accordingly, pursuant to the regime in the PA there is much more scope for a consideration of the site specific benefits of a proposed development in assessing a development application. This in turn leads to greater scope for the use of expert evidence in the assessment process.”[25]

  1. [10]
    Insofar as the assessment benchmarks themselves are concerned, the applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms:

“[52] The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

‘[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.”

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all of the statutory provisions.’…

[56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.”[26]

The relevant provisions of the planning scheme

  1. [11]
    The hierarchy of assessment benchmarks is addressed in s 1.5 of the planning scheme.  Where there is inconsistency between provisions in impact assessment, the Strategic Framework prevails over all other components.  Thereafter, overlays prevail over all other components, then neighbourhood plan codes prevail over zone codes and zone codes prevail over other use codes and other development codes to the extent of any inconsistency.[27] 
  1. [12]
    The Strategic Framework, Theme 2 entitled “Brisbane’s Outstanding Lifestyle” contains the following relevant Specific Outcomes and Land Use Strategies:[28] 

Specific outcomes

Land use strategies

Sense of place

SO5

Brisbane’s development and infrastructure strengthens local identity.

L5.1

Development responds to and reinforces locally distinctive design landscape, heritage, social values, patterns of development and culture.

SO8

Brisbane’s backyards contribute strongly to local character by providing green landscapes in urban areas

L8

Development in low density areas of Suburban Living Areas predominantly maintains a block pattern that accommodates backyards and large trees

  1. [13]
    Parts of Theme 5 of the Strategic Framework entitled “Brisbane’s CityShape” are also relevant. The strategic outcomes in s 3.7.1 include:

“(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:

  1. (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…”[29] 
  1. [14]
    The following Specific Outcomes and Land Use Strategies are also relevant.[30] 

Specific outcomes

Land use strategies

SO4

The local character which is typically defined by features such as consistent block size and house spacing, an established road pattern, a predominance of detached housing, the presence of mature vegetation and gardens and by local typography is maintained.

L4.1

Infill development is limited to instances where the resulting lot size reflects that which predominates in the neighbourhood.

L4.2

The siting, scale and lot coverage of new housing is consistent with the existing neighbourhood character of well-spaced houses and vegetated backyards.

L4.3

Development supports high levels of local amenity and air quality and enhances these areas, contributing to the sustainability of the city through:

  1. (a)
    the retention of mature and significant vegetation;
  1. (b)
    the retention of private open space capable of supporting trees and gardens…
  1. [15]
    The following provisions of the Character Residential Zone Code are relevant:

6.2.1.5 Character residential zone code

  1. The purpose of the character residential zone is to:
  1. ensure the character of a residential area is protected or enhanced; and

  1. Zone role overall outcomes are:
  1. Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular:
  1. Theme 2: Brisbane’s outstanding lifestyle, Element 2.1 – Brisbane’s identity and Element 2.2 – Brisbane’s housing and accommodation choices;
  2. Theme 5: Brisbane’s CityShape and Element 5.5 – Brisbane’s Suburban Living Areas.

  1. Development form overall outcomes are:
  1. 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.

  1. Character zone precinct overall outcomes are:

  1. Development provides for a minimum lot size of 450m² to maintain a block pattern that accommodates traditional backyards and large trees.”[31]
  1. [16]
    In the Sherwood-Graceville District Neighbourhood Plan Code the following provision in the Purpose is relevant:

“(4) Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”[32] 

  1. [17]
    Furthermore, the following performance outcomes and acceptable solutions are noteworthy:[33]

Performance outcomes

Acceptable outcomes

If for a dwelling house:

PO1

Development:

(a)  maintains the traditional backyard pattern and character of the area with a proportion of the site set aside for open space rather than built structures;

AO1.2

Development has a minimum rear boundary setback of 6m.

  1. [18]
    Finally, in the Traditional Building Character (Design) Overlay Code the performance outcomes and acceptable outcomes for the SGDNP area include:[34]

Additional performance outcomes and acceptable outcomes if in the Sherwood-Graceville district neighbourhood plan area where not in the Westside character precinct

PO13

Development involving an extension or addition to a dwelling house constructed in 1946 or earlier:

(a)  does not compromise the traditional character of the house;

(b)  retains the original roof form of the dwelling house constructed in 1946 or earlier as viewed from the street and does not dominate the original roof form.

AO13

Development involving an extension or addition is:

(b)  smaller in scale and bulk than the existing character building;

The disputed issues

  1. [19]
    The parties agreed that the issues to be resolved in the appeal are whether:
  1. the proposed lot reconfiguration in terms of size and shape is acceptable;
  1. the proposed lot reconfiguration results in acceptable character and amenity outcomes; and
  1. the proposed lot reconfiguration enables development for a lawful use intended for the CRZ.[35] 
  1. [20]
    Further, a number of relevant matters are relied upon by the appellant, which it submits individually or collectively, justify approval of the proposed development. They are said to be that:
  1. the proposed development provides for housing choice and diversity in circumstances where the Land is located less than 400 m from the Sherwood train station and the Sherwood Road District Centre;
  1. the existing mixed character of the locality including the presence of both pre-1946 dwellings and post-1946 dwellings and other lots of approximately 400 m2 within reasonable proximity of the Land and similar development nearby;
  1. the merits of the proposed development, having regard to the retention of the traditional building character of the existing dwelling and significant Poinciana trees, the proposed setback to the co-respondent by election, and the consistency of it with the planning scheme and in particular the purpose of the Character Residential Zone Code.[36] 
  1. [21]
    Finally, the issue is raised whether an exercise of the planning discretion to approve the proposed development would be consistent with advancing the purpose of the PA and in particular, s 5(2)(i) which provides that advancing the purpose of the Act includes:

“(i)  applying amenity, conservation, energy use, health and safety in the built environment in ways that are cost-effective and of public benefit;” [37]

Assessment of the proposed development

  1. [22]
    The provisions of the Strategic Framework quoted above demonstrate a clear intent, which is consistently developed through the planning scheme that the protection of local character extends not only to the built form but also to the context in which it is situated including, specifically, backyards. This planning intent is reinforced in the Character Residential Zone Code in circumstances where the protection and enhancement of character is, understandably, a significant consideration for development in the CRZ. Ultimately, overall outcomes stipulate that development provides for a minimum lot size of 450 m2 “to maintain a block pattern that accommodates traditional backyards and large trees”.[38]  Similar considerations are evident in the Sherwood-Graceville District Neighbourhood Plan Code. 
  1. [23]
    I am satisfied that the indicative building footprint for a future dwelling house on proposed lot 2 would provide a backyard which almost complies with AO1.2 of the Sherwood-Graceville District Neighbourhood Plan Code.[39]  I accept the following evidence of Mr Walker, the planner who gave evidence on behalf of the appellant: 

“Both the existing dwelling on Proposed Lot 1 and Proposed Lot 2 are able to achieve compliant building setbacks in accordance with the Dwelling house (small lot) code (side setbacks), Traditional building character (design) code (front setbacks) and [sic] Sherwood-Graceville district neighbourhood plan code (rear setbacks).”[40]

  1. [24]
    I also accept the evidence of Mr Walker that the separation between the built form the subject of the proposed development would not be inconsistent with the building separation evident along Dewar Terrace within the block encompassing the Land.[41]  I also accept, consistently with the provisions of the Traditional Building Character Design (Overlay) Code quoted above, that an extension to the existing house on the Land could extend a considerable distance into the backyard.[42] 
  1. [25]
    I need to assess whether in the circumstances the proposed development complies with the provisions of the planning scheme seeking to protect the character of the residential area having regard to the provisions quoted above. In circumstances where I am also satisfied that the protection of large trees and landscaping issues do not warrant a refusal of the proposed development, the focus of my assessment will be on lot size and traditional backyards.
  1. [26]
    In Smout v Brisbane City Council, Williamson QC DCJ made the following observations about Overall Outcome (6)(d) in the Character Residential Zone Code: 

“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… 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.”[43] 

  1. [27]
    Unsurprisingly, in giving his evidence about the character of the neighbourhood, Mr Walker emphasised the block in which the land is situated rather than the area in the neighbourhood within the CRZ and subject to the TBCO. He described the Land as sitting in “an area of transition”.[44]  He further stated that the “key contribution to character” made by the Land related only to the Sherwood Road frontage.[45]  He observed that in the immediate locality surrounding the Land the lot pattern “has a variety of lot sizes and shapes” and that lots less than 450m2 while not the dominant size, are not uncommon in the area.[46]  Mr Walker did concede under cross-examination, however, that in the block under consideration by him there were only three allotments which were less than 450m2 in size.[47]  Mr Walker also acknowledged that north of the Land, within the CRZ, lots are “more consistent in shape and size, with a prevalence of large rectangular lots”.[48]  Ultimately, Mr Walker was of the view that the consistent feature of the block was a predominance of 20m lot frontages and that, in providing two 20m lot frontages, the proposed development would ensure consistency of development was maintained.[49] 
  1. [28]
    Mr Brown, the town planner who gave evidence for the co-respondent by election adopted a very different approach. He emphasised the importance of the Land as being part of a continuous larger area to the north within the CRZ and subject to the TBCO. He emphasised that the reason that the Land and that of the co-respondent by election were designated this way was because the land to the south “was not developed for suburban residential purposes until after 1946”.[50]  This assertion was supported by aerial photography.[51]  As a consequence, Mr Brown observed that this part of the block to the south is “distinctly different from that part of the block which had been developed prior to 1946”.[52]
  1. [29]
    Ultimately, Mr Brown expressed the following views in terms of the proposed development in the context of the intent of the planning scheme to maintain the character of the area:

“The established pattern of development with this small precinct of Traditional building character overlay south of Sherwood Road is consistent with the general pattern of development within the Traditional building character overlay area to the north.  This is reflected in the lot pattern, and form of development, and is recognized through the inclusion of this land in the Character residential zone.  The pattern of development to the south of this Traditional building character area which is included within the Low density residential zone has a different character – having been developed in a fragmented pattern, having occurred over different times, and reflecting a different streetscape character – particularly along Dewar Terrace and Jolimont Street. 

The provisions of City Plan 2014 in relation to subdivision of land in the Character residential zone, being for a minimum lot size of 450m2, clearly distinguish between that which applies within the Low density residential zone (which is to allow for lots of less than 450m2), while not providing for new small lots within the Character residential zone.  This Character residential zoning works together with the Traditional building character overlay area to produce an outcome which is intended to reinforce local character by maintaining sufficient space for backyards within new development.”[53]

  1. [30]
    I accept the approach of Mr Brown and prefer his evidence to that of Mr Walker in terms of the correct approach to determining the relevant character of the area.  Reading the planning scheme as a whole, the Land is within an area which has been given additional protections because of its traditional character by virtue not only of it being zoned within the CRZ but also being subject to the TBCO.  To ignore the importance of its designation in this regard in assessing the character of the area by merely looking at the block in which the land is situated, is in my view, not in accordance with the intent of the planning scheme.  I accept the evidence of Mr Brown that important elements within the locality of the Land are “an overall sense of space, of tree cover/landscaping, larger lot sizes, detached houses and the existence of generous backyards.”[54]  This is in the context where, within this area of similarly zoned and designated land, 83 dwellings exist and 75 of these contain backyards and small square lots of the type proposed are very rare.[55]
  1. [31]
    The term “traditional backyard” is not defined in the planning scheme. In the Macquarie Concise Dictionary a backyard is relevantly defined as “an area, often of some size with gardens and lawn at the back of a building, usually a house”.[56]  As to what constitutes a “traditional” backyard, this must be clearly viewed in the context of where the land is situated.  What is conveyed by the term “traditional backyard” is essentially a question of fact.  The fixtures in a traditional backyard may change.  The dunnies of the pre-septic tank era have gone.  The septic tanks in turn became redundant when Brisbane finally became the beneficiary of a comprehensive sewerage network. It is a potential venue for a game of cricket. Clothes lines remain and swimming pools now proliferate.  The constant feature is, however, the space a traditional backyard affords the residents of the house.  The amenity conferred is not only from an active perspective, providing an area of private outside space to utilise, but is also in terms of character.  When cross-examined about the concept of a traditional backyard Mr Brown observed that it involved both “space in the backyard and the use of that backyard”.[57]  This space is part of the concept of the amenity of the area. As was noted in Broad v Brisbane City Council & Anor, “the concept of amenity is wide and flexible … it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality”.[58]
  1. [32]
    On the facts before me, houses in the CRZ in the vicinity of the Land generally have large backyards which contribute to the character of the large pre-1946 houses and this in turn has a significant effect on how the amenity of this area is perceived. The houses are given a context by their backyards. The proposed development is inconsistent with this. The traditional backyard, which is currently of a size which suitably compliments the substantial pre-1946 house, will be eliminated from the proposed lot which is intended to accommodate the existing house.
  1. [33]
    Not only is there a departure from the nominated minimum lot size for the CRZ, but in eliminating the existing backyard and creating two small lots, the proposed development is not consistent with the existing neighbourhood character, particularly having regard to the planning designation of the land. It is not only at variance with the provisions of the Strategic Framework set out above but is also at significant variance with what is envisaged in the Character Residential Zone Code, which seeks to place limits on development which is inconsistent with the established traditional character. The proposed development is particularly inconsistent with Overall Outcome (5)(a) because the elimination of the backyard for the character house will not result in development occurring on an appropriately sized and configured lot. Each of the proposed lots will be smaller than the minimum 450m2 which is contemplated in circumstances where a traditional backyard will be eliminated. There is therefore a significant departure from the desired minimum lot size which will not maintain a block pattern which accommodates traditional backyards, contrary to Overall Outcome 6(d).
  1. [34]
    I am therefore of the view that the proposed lot reconfiguration is unacceptable having regard to these significant inconsistencies with the relevant provisions of the planning scheme.

Relevant matters

  1. [35]
    The creation of one additional small lot at significant variance with the intended character for the Land as contemplated by the planning scheme in circumstances where there is no evidence of any need for this additional lot is not justified merely because of its proximity to the Sherwood train station and Sherwood Road District Centre. Although there is some discordant development in the locality and development outside the CRZ and TBCO which is more aligned with the proposed development, this does not justify such a significant departure from the relevant provisions of the planning scheme which seek to preserve the character of the Land discussed above. The extent that the proposed development complies with relevant provisions of the planning scheme, while also a relevant matter, does not justify the significant departure from what is envisaged for the Land in terms of the character provisions relevant to the CRZ and TBCO discussed above. The provision of appropriate setbacks for the dwelling envisaged for proposed lot 2, including a setback to the land of the co-respondent by election which exceeds what is required for the construction of a house on a small lot, does not justify the proposed development in circumstances where the planning scheme does not contemplate the creation of the proposed lot through the elimination of the existing backyard in the first place.
  1. [36]
    Finally, it is asserted that I should exercise my planning discretion to approve the proposed development because it would be consistent with advancing the purpose of the PA having regard to one of many amorphous and generally worded provisions.
  1. [37]
    This argument appears to have its genesis in the observations of Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council & Ors that s 5(1) of the PA requires an entity exercising the discretion imposed under s 60(3) must do so in a way that advances the purpose of the PA.[59]  In assessing the proposed development against the relevant assessment benchmarks in the planning scheme, which is itself a product of the PA, I am complying with s 5(1) thereof.  It is difficult to contemplate a scenario where the court could be said to not be doing so provided it appropriately undertakes the hearing and determination of the appeal having regard to the mandated statutory process.  There is absolutely no merit in this final argument. 

Conclusion

  1. [38]
    The proposed development is inconsistent with the relevant provisions of the planning scheme which seek to preserve the character of land in the CRZ. This arises because the proposed development essentially seeks to eliminate the existing backyard of the character house on the Land and create lots smaller than what is indicated as appropriate. There are no relevant matters which justify approving the proposed development in light of the extent of the inconsistencies with the relevant assessment benchmarks.
  1. [39]
    I therefore dismiss the appeal.

Footnotes

[1]  Exhibit 2, p 8.

[2]  Exhibit 5, p 8; Exhibit 8, p 16. 

[3]  Written submissions on behalf of the respondent, p 3.

[4]  Exhibit 7, p 7, para 7 and figs 2 and 3.

[5]  Ibid p 11.

[6]  Ibid figs 8 and 9, Exhibit 9, Attachment B.

[7]  Exhibit 7, figs 4 and 5.

[8]  Ibid figs 5 and 6.

[9]  Ibid p 7, para 11.

[10]  Ibid para 12 and figs 8 and 9.

[11]  Ibid para 13.

[12]  Ibid para 14.

[13]  Ibid p 9, para 19.

[14]  Ibid para 18.

[15]  Ibid para 20.

[16]  Ibid para 19.

[17]  Exhibit 5, p 6.

[18] Planning and Environment Court Act 2016 s 46(2).

[19] Planning Act 2016 s 46(5)(a)(i).

[20]  Ibid s 45(5)(b).

[21] Planning and Environment Court Act 2016 s 43.

[22]  Ibid s 45(1)(a).

[23]  [2018] QCA 84 at [66].

[24]  [2019] QPEC 16 at [53].

[25]  [2019] QPEC 5 at [13].

[26]  [2014] QPELR 686 at 698-700.

[27]  Exhibit 4, pp 26-27. 

[28]  Exhibit 4, pp 42-43. 

[29]  Exhibit 4, p 62. 

[30]  Ibid pp 78-79. 

[31]  Exhibit 4, pp 130-133. 

[32]  Ibid p 142. 

[33]  Ibid p 145.

[34]  Exhibit 4, p 169. 

[35]  Exhibit 2.

[36]  Exhibit 2.

[37]  Ibid.

[38]  Exhibit 4, p 133, Planning scheme s 6.2.1.5(6)(d).

[39]  Ibid p 145, s 7.2.19.3.3. 

[40]  Exhibit 8, para 4.0.7. 

[41]  Exhibit 8, fig 18. 

[42]  Exhibit 4 p 169, Planning scheme s 8.2.22.3, PO13 and AO13. 

[43]  [2019] QPEC 10 at [11]. 

[44]  Exhibit 7, p 18. 

[45]  Ibid. 

[46]  Ibid. 

[47]  T1-54 ll 35-45. 

[48]  Exhibit 7, p 18. 

[49]  Ibid, p 20. 

[50]  Exhibit 7, p 26. 

[51]  Ibid attachment D. 

[52]  Ibid p 26. 

[53]  Ibid p 51. 

[54]  Exhibit 9, p 3.

[55]  Ibid, pp 2-3 and attachment B.

[56]  4th edition, Macquarie University, 2006.

[57]  T2-28 ll 15-20.

[58]  [1986] 2 Qd R 317 at 326 per de Jersey J.

[59]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [83] – [85]. 

Close

Editorial Notes

  • Published Case Name:

    Toro v Brisbane City Council & Anor

  • Shortened Case Name:

    Toro v Brisbane City Council

  • MNC:

    [2019] QPEC 53

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    01 Nov 2019

Appeal Status

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