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McKay v Brisbane City Council[2021] QPEC 42

McKay v Brisbane City Council[2021] QPEC 42

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42

PARTIES:

PETER ANTHONY MCKAY

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

AZURE DEVELOPMENT GROUP PTY LTD

(Co-respondent)

AND

RENO ANTHONY PANOZZO

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

AZURE DEVELOPMENT GROUP PTY LTD

(Co-respondent)

AND

PETER MICHAEL JENSEN

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

AZURE DEVELOPMENT GROUP PTY LTD

(Co-respondent)

FILE NO/S:

1747 of 2020, 1749 of 2020 and 1750 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9, 11 and 12 February 2021 and further exhibits received 2 March 2021 and 12 July 2021 and further submissions received 15, 19 and 20 July 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

  1. 1.
    Appeals numbered 1747 of 2020, 1749 of 2020 and 1750 of 2020 are dismissed.
  2. 2.
    The decision of Brisbane City Council notified by the decision notice addressed to Azure Development Group Pty Ltd dated 22 May 2020 is confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against approval of a development application seeking a development permit for material change of use for a six storey multiple dwelling in the Medium density residential zone – whether the proposed development is of an appropriate height, bulk and scale – whether the proposed development will contribute to a cohesive streetscape – whether the proposed development will be compatible with the existing and intended character of the area – whether the proposed development will cause any unacceptable amenity impact – whether the proposed development provides for adequate deep planting and landscaping – whether there is a need for the proposed development – whether there are relevant matters that support approval of the proposed development – whether the development application for the proposed development should be approved in the exercise of the planning discretion

LEGISLATION:

Planning Act 2016 (Qld), s 45, s 59, s 60

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, applied

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

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

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

Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors [2008] QPEC 45; [2009] QPELR 35, approved

Development Watch & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, approved

Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, approved

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42; [2016] QPELR 784, approved

Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62; [2017] QPELR 49, approved

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, approved

Norfolk Estates Pty Ltd v Brisbane City Council & Anor [2016] QPEC 9; [2016] QPELR 285, considered

Northern Properties Pty Ltd v Brisbane City Council & Anor [2019] QPEC 66; [2020] QPELR 877, approved

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, applied

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved

Wilhelm v Logan City Council & Ors [2020] QCA 273, applied

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

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

J Ware for the Appellants

R Yuen for the Respondent

D Gore QC and D Whitehouse for the Co-respondent

SOLICITORS:

Anderssens Lawyers for the Appellants

City Legal for the Respondent

Clinton Mohr Lawyers for the Co-respondent

TABLE OF CONTENTS

Introduction 5

What is the applicable framework for the decision? 5

What are the relevant assessment benchmarks? 8

What is the nature of the proposed development? 10

What does City Plan seek to achieve in terms of height, bulk, and scale? 10

What guidance does the Medium density residential zone code provide? 11

What guidance does the New Farm and Teneriffe Hill neighbourhood plan code provide? 14

What guidance does the Multiple dwelling code provide? 17

Conclusion regarding the guidance on the height, bulk, and scale of development 23

Is the proposed development of a height, bulk and scale that is appropriate? 29

Is the proposed development compatible with, and does it contribute to, a cohesive streetscape, and the existing and intended character and sense of place? 29

What is the existing character of the locality and the relevant streetscape? 30

What is the intended character? 34

Is the proposed development appropriate having regard to the existing streetscape and character of the locality and the intended character? 35

Are the setbacks, building separation and site cover of the proposed development appropriate in character terms? 41

Is the proposed development located on a suitable site? 43

Conclusion regarding the appropriateness of the height, bulk, and scale of the development 44

Will the proposed development cause unacceptable amenity impacts? 45

Will the proposed development result in an unacceptable loss of views? 47

Will the proposed development result in unacceptable privacy and overlooking impacts? 51

Will the proposed development result in unacceptable overshadowing? 53

Will the proposed development incorporate appropriate landscaping? 55

Does the proposed development comply with the overall outcomes for the Medium density living precinct of the neighbourhood plan? 57

Conclusion regarding assessment against the relevant assessment benchmarks 60

Are there relevant matters that support approval? 60

Should the development application be approved in the exercise of the planning discretion? 63

Conclusion 64

Introduction

  1. [1]
    Immediately adjacent Merthyr Park, at 156 - 158 Oxlade Drive, New Farm, there are three adjoining lots with a combined area of 1,097 square metres (“the subject land”).  The trapezoidal shape of the subject land provides a narrow frontage to Oxlade Drive and a wider frontage to the Brisbane River.  The subject land contains two single storey houses.  The lots are all in the Medium density residential zone under Brisbane City Plan 2014 (“City Plan”) and are ripe for redevelopment. 
  2. [2]
    The Co-respondent, Azure Development Group Pty Ltd (“Azure Development Group”), wants to develop the subject land for a six-storey apartment building containing 10 units.  It made a development application seeking a development permit for a material change of use to facilitate its goal.  Brisbane City Council (“the Council”) approved the application.  Three residents of the adjoining apartment building to the east (known as “Kirribilli”) (“the Appellants”) objected to the proposed development and each has appealed against the Council’s decision.
  3. [3]
    The issues in dispute between the parties relate to:
    1. (a)
      the extent to which the proposed development conforms with the relevant assessment benchmarks; and
    2. (b)
      whether there are relevant matters that support approval of the proposed development.
  4. [4]
    The ultimate issue I need to determine is whether, in the exercise of the planning discretion, the development application for the proposed development should be approved.

What is the applicable framework for the decision?

  1. [5]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies.  In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[1]
  2. [6]
    The appeal proceeds by way of hearing anew.[2]  Azure Development Group bears the onus of establishing that the appeal should be dismissed.[3]
  3. [7]
    Azure Development Group seeks a development permit to authorise it to carry out a material change of use of the subject land from its present use for two houses to use for 10 apartments in a six-storey building generally in accordance with the design reflected in the plans provided as Exhibit 5. 
  4. [8]
    There is a broad discretion in determining these appeals.[4]  The exercise of the discretion must be based on an assessment that:[5]
    1. (a)
      must be carried out:
      1. against the assessment benchmarks in City Plan version 16 to the extent relevant;[6]
      2. having regard to, relevantly, any development approval for, and any lawful use of, the premises and adjacent premises and the common material, including properly made submissions about the development application;[7] and
    2. (b)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
  5. [9]
    It was common ground between the parties that His Honour Judge Williamson QC comprehensively, and correctly, analysed how impact assessable development applications are to be assessed and decided in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[8]  His Honour’s approach was endorsed by the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd,[9] Abeleda & Anor v Brisbane City Council & Anor,[10] Wilhelm v Logan City Council & Ors[11] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors[12].  It is also common ground that my observations about the approach to assessment in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor (“Murphy”)[13] are apposite.  
  6. [10]
    As is apparent from those decisions, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.[14]  The flexibility promulgated by the Planning Act 2016 is to enable

“a ‘balanced decision in the public interest’ to be reached, based on an assessment of the merits of an application having regard to established policy and other relevant considerations”.[15]

  1. [11]
    To that end, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[16]  The parties accept that my observations in Murphy are consistent with those in Ashvan Investments Unit Trust v Brisbane City Council & Ors[17] and Abeleda & Anor v Brisbane City Council & Anor[18] and are pertinent in this case.  In particular, the Council references my observations in Murphy that:

[20] The legislation requires a planning scheme to include measures to facilitate the achievement of the strategic outcomes.[19]  The local government must draft them in circumstances where the available information is limited.  For example, while a local government may have studies that provide a reasonable indication of the ecological values present in a particular locality, or natural features that pose a constraint for development, it does not have detail about every attribute of every piece of land within its local government area.  The available information reflects the position at a particular point in time.  Further, a planning scheme expresses the controls that guide the parameters of development in performance-based terms.[20]  They do not advance a particular design option or solution for a particular site.  They are drafted without the benefit of a particular development option or design.  While planning controls are generally drawn by town planners with experience of a great variety of applications, the combination of criteria applicable in any one case can differ, depending on the particulars of the development proposed and the location it is proposed.  A local government could not possibly foresee every combination of controls that might apply, and their impact on every potential development scenario that individuals may seek to advance on every site across its local government area. 

[21] When viewed in that context, one can appreciate that development that differs from that encouraged by the planning controls, or that fails to comply with benchmarks set in a planning scheme, does not necessarily result in haphazard development.  Development may differ from the planning controls but be compatible with, ancillary to or designed to complement the planning outcome sought by the planning controls, or otherwise advance the needs of a community in a particular area without undue adverse town planning consequence, because of its own merits and the particular combination of facts and circumstances relevant to it.[21]  This underscores the importance of flexibility in the decision-making process

[22] I agree with Judge Williamson QC’s observation that a planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted.  It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other.  The Sustainable Planning Act 2009 gave primacy to the planning scheme in the striking of the balance.  That is not what s 60 of the Planning Act 2016 requires.  Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45.  Its exercise is not a matter of mere caprice.  The decision must withstand scrutiny against the background of the planning scheme and proper planning practice.[22]  Not every non-compliance will warrant refusal.  It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them.  The extent to which a flexible approach 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.[23][24] 

What are the relevant assessment benchmarks?

  1. [12]
    The proposed development is impact assessable.  Accordingly, s 5.3.3 of City Plan requires the development application to be assessed against the whole planning scheme, to the extent relevant.  There are a multitude of benchmarks that are relevant to the proposed development.  Many, but not all, of the assessment benchmarks have been put in issue by the Appellants. 
  2. [13]
    The Appellants contend that the proposed development is not consistent with the assessment benchmarks in:
    1. (a)
      the overall outcomes in ss 6.2.1.3 4.a. and 6.2.1.3 5.a., b., c., d., e. and h. of the Medium density residential zone code;
    2. (b)
      the overall outcomes in ss 7.2.14.1.2 3.a., b., f., m. and 7.2.14.1.2 6.a. and b. and performance outcomes PO1 b., c., d. and e., PO7, PO8 and PO10 (and each of the associated acceptable outcomes) of the New Farm and Teneriffe Hill neighbourhood plan code; and
    3. (c)
      the overall outcomes in s 9.3.14.2 2.a., e., h., i., j., l. and q., and performance outcomes PO5 c. and d., PO6 b., c., d., and f., PO7 a., b, and c., PO8 a., b. and c., PO9 e. and f., PO11 a., b. and c., and PO14 a., b. and c. (and each of the associated acceptable outcomes) of the Multiple dwelling code.
  3. [14]
    These benchmarks were identified in Exhibit 28, the List of Remaining Issues for Determination.  That document did not particularise the nature of the non-compliance alleged with each provision, nor did the Appellants’ written submissions provide appropriate clarity on the matter.  Many of the provisions identified by the Appellants seek to achieve more than one planning outcome.  For example, the overall outcome in s 6.2.1.3 5.a. requires development for a residential building to occur on appropriately sized and configured lots and be of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Medium density residential zone and reinforce a distinctive subtropical character.  In those circumstances, the lack of particulars fails to provide appropriate notice of the case that the party with the onus must meet.  As such, the form adopted for identifying the remaining issues for determination is unacceptable.  On 2 March 2021, after the hearing had concluded, the Appellants provided a further version of the List of Remaining Issues for Determination, to which they attached an extract of the relevant provisions marked up to strike-through those parts of the provisions that they do not put in issue.[25]  It would have been helpful to provide this level of detail at the outset.
  4. [15]
    In their written submissions, the Appellants address the alleged non-compliances by reference to four broad issues, namely:
    1. (a)
      whether the proposed development will be compatible with and contribute to a cohesive streetscape and the locality’s existing and intended character and sense of place;
    2. (b)
      whether the proposed development will cause any unacceptable impact on the existing and intended character of the locality;
    3. (c)
      whether the proposed development will cause any unacceptable amenity impact for the local community and surrounding residents, including with respect to privacy, overshadowing and views; and
    4. (d)
      whether the proposed development will provide opportunities for adequate deep planting and other landscaping.
  5. [16]
    Aside from these broad issues, the Appellants make two other allegations of non-compliance.  They relate to overall outcomes for the Medium density living precinct in the New Farm and Teneriffe Hill neighbourhood plan. 
  6. [17]
    There is significant overlap in the first and second issues raised by the Appellants.  As such, I intend to assess the proposed development’s compliance with the relevant assessment benchmarks by addressing the extent to which it achieves the planning goals with respect to:
    1. (a)
      the height, bulk and scale of development;
    2. (b)
      the amenity impacts of development;
    3. (c)
      landscaping; and
    4. (d)
      the Medium density living precinct in the New Farm and Teneriffe Hill neighbourhood plan.
  7. [18]
    Before turning to consider each of these issues in detail, it is helpful to have a general understanding of the nature of the proposed development.

What is the nature of the proposed development?

  1. [19]
    The proposed development is a material change of use for multiple dwellings (10 units) in a six-storey apartment building with a private roof terrace and two levels of basement carparks.
  2. [20]
    The proposed development includes:
    1. (a)
      at ground level (1st storey) – an entrance lobby, pool and recreation area, along with access to Merthyr Park and one four-bedroom unit that is oriented to the park and Brisbane River with a private outdoor terrace;
    2. (b)
      at each of levels 1 to 4 (2nd to 5th storeys) – two three-bedroom units, oriented with the living space and balcony overlooking the park and Brisbane River and with the recreation areas located at the western end;
    3. (c)
      at level 5 (6th storey) – one four-bedroom unit with a balcony to the river frontage;
    4. (d)
      a private roof terrace associated with the four-bedroom unit on level 5; and
    5. (e)
      two levels of basement carpark containing 31 resident car parks, two visitor car parks, 10 bicycle parks and storage.
  3. [21]
    The height of the building is 21.9 metres (RL 26.5 metres AHD) to the top of the parapet and 24.3 metres (RL 28.9 metres AHD) to the top of the rooftop pergola and private stairwell. 

What does City Plan seek to achieve in terms of height, bulk, and scale?

  1. [22]
    The Appellants put in issue three of the components of City Plan that guide the appropriate height, bulk, and scale of development.  They are the Medium density residential zone code, the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code.

What guidance does the Medium density residential zone code provide?

  1. [23]
    City Plan uses zones to organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.[26]  One of the mechanisms used to facilitate preferred land uses is the allocation of the category of assessment.  This is a blunt planning tool that encourages development by categorising the development as either accepted development or assessable development that requires code assessment.
  2. [24]
    Here, the subject land is included in the Medium density residential zone.  Pursuant to s 5.3.2 and Table 5.5.3 of City Plan, a multiple dwelling in the Medium density residential zone is code assessable if it is no greater than the building height specified in a relevant neighbourhood plan; and, where a neighbourhood plan does not specify building height, five storeys.  Otherwise, a multiple dwelling in the Medium density residential zone is impact assessable.[27] 
  3. [25]
    The subject land is in the Medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.  Table 5.9.50.A indicates that there is no change to the level of assessment for land in the New Farm and Teneriffe Hill neighbourhood plan area.
  4. [26]
    The proposed development is a six-storey multiple dwelling.  As such, it is impact assessable.  That does not, of itself, indicate that the proposed development is of a form that is not anticipated in the Medium density residential zone, but it does indicate that the impact of the proposed development and its acceptability requires closer scrutiny. 
  5. [27]
    City Plan also facilitates the location of preferred or acceptable land uses in the Medium density residential zone through the application of the assessment benchmarks in the Medium density residential zone code.  Section 6.2.1.3 1. records that the purpose of the Medium density residential zone is to provide for medium density multiple dwellings.[28]  That purpose is to be achieved through overall outcomes for the zone role, development location and uses and development form.
  6. [28]
    In terms of the height, bulk and scale of the proposed development, the Appellants allege that the proposed development is not consistent with the following overall outcomes in s 6.2.1.3 of the Medium density residential zone code:

“4. Development location and uses overall outcomes are:

a. Development provides for a mix of well-designed, location-responsive medium rise and medium density residential development of up to 5 storeys and located on suitable sites, in well-located parts of the city, including the inner city and in close proximity to significant centres or along growth corridors or on the periphery of centres.

5. Development form overall outcomes are:

a. Development for a residential building occurs on appropriately sized and configured lots and is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Medium density residential zone and reinforces a distinctive subtropical character of medium rise buildings with a landscaped streetscape and recreation areas.

b. Development comprises medium rise, medium-high density residential buildings of predominantly apartment style multiple dwellings, 3 to 5 storeys in height.

c. Development provides for a building to have a building height and bulk that responds to:

i. the nature of adjoining dwellings;

ii. site characteristics, including the shape, frontage, size, orientation and slope.

d. Development responds to local characteristics, such as protection of view corridors, reinforces a green landscape character and responds to the surrounding character and architecture by having a lower height and/or smaller bulk than in the High density residential zone, acknowledging this zone’s role as a transition area between higher and lower rise/lower density zones.

e. Development for a housing type other than a dwelling house is of a scale and bulk that enables the buildings to co-exist comfortably with dwelling house and dual occupancy uses in adjoining lower density zones.”

(emphasis added)

  1. [29]
    The parties disagree about the proper construction of the overall outcomes in ss 6.2.1.3 4.a. and 5.b..  The Appellants contend that, properly construed, these provisions seek to limit development in the Medium density residential zone to that which is between three and five storeys in height.  The Council and Azure Development Group contend that the outcomes require development to be “medium rise” but that the references to “up to 5 storeys” and to “3 to 5 storeys” are not to be construed as a definition of “medium rise” development.
  2. [30]
    The drafting of ss 6.2.1.3 4.a. and 5.b. leaves a lot to be desired.  It seems to me that a storey is a direct measure of the “rise” of a building.  As such, while the interjection of a reference to the desired density of residential buildings between the reference to “medium rise” and “5 storeys” poses a challenge to the clarity of the provisions, the encouragement for medium rise development should sensibly be read in conjunction with the references to “up to 5 storeys” and to “3 to 5 storeys”.  Further, when s 6.2.1.3 5.b. is read together with s 6.2.1.3 4.a., it supports a construction of “medium rise” development as including[29] that which is between three and five storeys in height.[30] 
  3. [31]
    This construction sits comfortably with other provisions of City Plan.  It is consistent with the overall outcomes for the High density residential zone code.  They call for “medium to high rise multiple dwellings to predominate”,[31] which is to be achieved by development being “predominantly 5 to 8 storeys in height” in the “Up to 8 storeys zone precinct[32] and “predominantly 9 to 15 storeys in height” in the “Up to 15 storeys zone precinct”.  Further, it is not discordant with the encouragement for:
    1. (a)
      dwelling houses of predominantly 1 or 2 storeys in height” in the Low density residential zone code;[33]
    2. (b)
      2 storey low rise multiple dwellings” in the 2 storey mix zone precinct in the Low-medium density residential zone code;[34]
    3. (c)
      low-rise, low-medium density residential buildings that are “predominantly 1 or 2 storeys in height” in the 2 storey mix zone precinct of the Low-medium density residential zone code;[35]
    4. (d)
      2 to 3 storey low rise multiple dwellings” in the 2 or 3 storey mix zone precinct in the Low-medium density residential zone code;[36]
    5. (e)
      low-medium rise, low-medium density residential buildings that are “predominantly 2 storeys, or of up to 3 storeys in height” in the 2 or 3 storey mix zone precinct of the Low-medium density residential zone code;[37]
    6. (f)
      predominantly 3 storey low-medium rise multiple dwellings” in the Up to 3 storeys zone precinct in the Low-medium density residential zone code;[38] and
    7. (g)
      low-medium rise, medium density residential buildings that are “predominantly (but no more than) 3 storeys in height” in the Up to 3 storeys zone precinct of the Low-medium density residential zone code.[39]
  4. [32]
    These provisions call for a predominance of development of a particular height.  Those desired outcomes must be understood in a context where development of lesser height would be code assessable and must also be in contemplation. 
  5. [33]
    The proposed development is a multiple dwelling of six storeys.  It is not encouraged as a preferred or acceptable land use under ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code.  Those provisions are expressed in positive terms.  As such, although a multiple dwelling of six storeys is not encouraged, it is also not expressly discouraged.[40]  As such, to determine the appropriateness of the proposed development it will be necessary to carefully examine the details of the proposed development against other provisions of City Plan that:
    1. (a)
      guide the anticipated height, bulk, and scale of residential uses on the subject land; and
    2. (b)
      contain specific controls, particularly those that relate to built form, character, and amenity, to ascertain whether the controls are respected.
  6. [34]
    The relevant provisions include the other overall outcomes referred to in paragraph [28] above, as well as those provisions of the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code put in issue by the Appellants. 

What guidance does the New Farm and Teneriffe Hill neighbourhood plan code provide?

  1. [35]
    Neighbourhood plans address matters at the local or district level.  They may provide more detailed planning for the zones.[41]  The mapping of land within a particular neighbourhood plan area, or a precinct within a neighbourhood plan, is also used to facilitate preferred land uses.
  2. [36]
    As I have mentioned in paragraph [25] above, the subject land is in the Medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.  It is subject to the New Farm and Teneriffe Hill neighbourhood plan code.  The purpose of the code is to provide finer grained planning at a local level for the New Farm and Teneriffe Hill neighbourhood plan area.[42]  The purpose is to be achieved through the overall outcomes, including those for each precinct.[43]
  3. [37]
    The Appellants contend that the proposed development is not consistent with the following overall outcomes contained in s 7.2.14.1.2 of the New Farm and Teneriffe Hill neighbourhood plan code:

“3. The overall outcomes for the neighbourhood plan area are:

a. New Farm’s characteristic diversity of built form and village feel is retained.

b. Infill development and redevelopment reflect New Farm’s established character and style.

f. Development complements existing urban and landscape characteristics and cultural associations and contributes to the distinctive and identifiable character and sense of place of New Farm as a whole and of its distinctive neighbourhoods.

m. 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.

6. Medium density living precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-003) overall outcomes are:

a. This precinct is predominantly medium density, taking advantage of the benefits of high levels of accessibility and visual amenity that characterise this area.”

(emphasis added)

  1. [38]
    The Appellants further contend that the proposed development is not consistent with the following performance outcomes and associated acceptable outcomes contained in Table 7.2.14.1.3.A of the New Farm and Teneriffe Hill neighbourhood plan code:

General

PO1

Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:

  1. consistent with the anticipated density and assumed infrastructure demand;
  2. aligned with community expectations about the number of storeys to be built
  3. proportionate to and commensurate with the utility of the site area and frontage width
  4. designed to avoid a significant and undue adverse amenity impact to adjoining development;
  5. sited to enable existing and future buildings to be well separated from each other and avoids affecting the potential development of an adjoining site.

Note—Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.

Note—Development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.

AO1

Development complies with the number of storeys and building height set out in Table 7.2.14.1.3.B.

Note—Neighbourhood plans will mostly specify a maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.

If in the Medium density living precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-003)

PO7

Development ensures new buildings maintain views to and from the river and other landmark sites identified in Figure a, and a visual relationship with other buildings in the vicinity.

AO7

Development is in accordance with the maximum number of storeys and building height set out in Table 7.2.14.1.3.B.

PO8

Development ensures building size and bulk is consistent with the medium density nature of the locality and retains an appropriate residential scale and relationship with other precincts in the neighbourhood plan area.

AO8

Development has a maximum gross floor area equal to the area of the site.

PO10

Development includes street setbacks which are compatible with existing setbacks in the area.

AO10

Development is set back a minimum of 6m from any road alignment.

(emphasis added)

What guidance does the Multiple dwelling code provide?

  1. [39]
    In terms of the height, bulk and scale of the proposed development, the Appellants contend that the proposed development is not consistent with the following overall outcomes contained in s 9.3.14.2 of the Multiple dwelling code:

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

e. Development has a bulk, scale, form and intensity that integrates with the existing and intended neighbourhood structure for the area as expressed by zone, zone precinct and neighbourhood plan outcomes, and is consistent with:

i. the location and street context of the site;

ii. its proximity to an activity centre, higher capacity public transport services, or other community facilities;

iii. the capacity of infrastructure.

h. Development is of a height that is appropriate to the strategic and local context and meets community expectations consistent with the following:

i. 15 storeys in the Up to 15 storeys zone precinct of the High density residential zone;

ii. 8 storeys in the Up to 8 storeys zone precinct of the High density residential zone;

iii. 5 storeys in the Medium density residential zone;

iv. 3 storeys in the Up to 3 storeys zone precinct of the Low-medium density residential zone;

v. 2 or 3 storeys in the 2 or 3 storey mix zone precinct of the Low–medium density residential zone;

vi. 2 storeys in the 2 storey zone precinct of the Low-medium density residential zone;

vii. 2 storeys in the Infill housing zone precinct of the Character residential zone;

viii. 2 storeys in the Low density residential zone.

j. Development in or adjoining lower density residential areas uses side boundary setbacks and built form height transitions to manage the interface with those areas and reflect the amenity, form and character and subtropical landscape of those areas.

l. Development ensures that the proportion of built and natural features, including buildings, design features, on-site open spaces and landscaping, provide:

i. an attractive streetscape interface that contributes to Brisbane’s character and identity, high-quality subtropical streetscapes and public space network;

…”

(emphasis added)

  1. [40]
    The Appellants also submit that the proposed development is not consistent with the following performance outcomes and associated acceptable outcomes contained in Table 9.3.14.3.A of the Multiple dwelling code:

PO5

Development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to:

  1. existing buildings that are to be retained;
  2. significant infrastructure or service constraints such as tunnels;
  3. existing and proposed building heights in the local area and street;
  4. adjoining buildings and separation of buildings necessary to ensure impacts on residential amenity and privacy are minimised;
  5. the impact of slope.

AO5

Development is contained within the building envelope for the site created by applying:

  1. the maximum building height in Table 9.3.14.3.B;
  2. front, rear and side boundary setback requirements in Table 9.3.14.3.C;
  3. car parking boundary setback requirements in Table 9.3.14.3.E;
  4. building separation requirements in Table 9.3.14.3.F;
  5. acceptable outcomes for building height transitions where required.

Refer to Figure b and Figure c.

Note—This acceptable outcome can be demonstrated by the preparation of a building envelope plan, elevations and sections.

PO6

Development has a building height that is consistent with the streetscape local context and intent for the area having regard to:

  1. proximity to high-frequency public transport services;
  2. the predominant height of existing or approved buildings in the street;
  3. providing appropriate separation and a sensitive transition between houses and higher scale building forms;
  4. street conditions such as street width;
  5. the topography of the area and site slope;
  6. view points and corridors;
  7. solar access to key public spaces and adjoining buildings.

AO6.1

Development has a maximum building height that complies with:

  1. a neighbourhood plan; or
  2. if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.B.

AO6.2

Development in the 2 or 3 storey mix zone precinct of the Low–medium density residential zone where adjoining a lot containing a dwelling house (where no approval for development other than a dwelling house exists) has a building height within 10m of the common boundary that does not exceed 9.5m and 2 storeys.

PO7

If:

  1. identified in a neighbourhood plan as a building height transition; or
  2. in the High density residential zone or the Medium density residential zone and sharing a common boundary with, or located fronting a minor road that is opposite, premises in the Low–medium density residential zone, Low density residential zone or Character residential zone.

Development provides buildings that are reduced in bulk and form to provide a transitional built form of compatible scale which protects the amenity of lower density residential areas bordering medium and high density residential areas by:

  1. stepping down in height and scale;
  2. heavily landscaping interface area;
  3. minimising impacts including overlooking and visual dominance through building articulation;
  4. maintaining adequate levels of natural ventilation and light penetration to habitable rooms and private open space;
  5. avoiding large blank walls on steeply sloping sites.

AO7.1

If:

  1. identified in a neighbourhood plan as a building height transition; or
  2. in the High density residential zone or the Medium density residential zone and sharing a common boundary with, or located fronting a minor road that is opposite, premises in the Low–medium density residential zone, Low density residential zone or Character residential zone.

Development provides a building height transition which complies with:

  1. a neighbourhood plan; or
  2. if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan:
  1. i. the building height within 10m of the common boundary is no more than 1 storey greater than the maximum acceptable outcome for building height on the adjoining site;
  2. ii. the building height within 20m of the common boundary is no more than 2 storeys greater than the maximum acceptable outcome for building height on the adjoining site;
  3. iii. all structures, except boundary fences, are set back a minimum of 4m from the common boundary;
  4. iv. the common boundary setback is a deep-planting area.

Refer to Figure f.

AO7.2

Development which fronts a minor road provides a building height transition that complies with:

  1. a neighbourhood plan; or
  2. if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan:
  1. i. the building height within 10m of the front boundary is no more than 2 storeys greater than the maximum acceptable outcome for building height on a site located on the opposite side of the minor road;
  2. ii. all structures, except boundary fences, are set back a minimum of 4m from the front boundary;
  3. iii. the front boundary setback is a deep-planting area.

Refer to Figure f.

PO8

Development separates buildings from existing or future buildings within a site or on an adjoining site to:

  1. be consistent with the form and character intent for the local area;
  2. protect residential amenity including access to natural light, sunlight and breeze;
  3. provide visual privacy to reduce the need for fixed screening.

AO8.1

Development provides building placement and design that:

  1. complies with Table 9.3.14.3.F; or
  2. positions the primary balcony or private open space to face the street frontage or rear boundary or adjoining public open space;
  3. offsets balconies or habitable rooms so that they are positioned outside the cone of vision of existing or approved habitable rooms or outdoor spaces.

Refer to Figure g and Figure h.

Note—This is demonstrated by a site context plan that includes adjoining and adjacent buildings and strategies to address separation issues.

Note— Considered site planning and design and strategies such as offsetting balconies, the location of private space, selective screening or other design elements can reduce building separation requirements.

AO8.2

Development with a secondary private open space or balcony used for drying or services is located to the side boundary with fixed screens.

PO9

Development provides a front boundary setback that:

  1. defines the street edge;
  2. creates a clear threshold and transition from public to private space;
  3. assists in achieving visual privacy to ground-floor dwellings from the street;
  4. supports the location of balconies for casual surveillance of the street and modulation of the facade;
  5. contributes to the streetscape character and landscape;
  6. relates to the existing streetscape and setback pattern.

AO9.1

Development provides a front boundary setback that complies with:

  1. a neighbourhood plan; or
  2. if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.C.

Note—Roofing of terrace areas on car parking structures are to comply with boundary setback requirements for balconies.

Note—Boundary setbacks are also influenced by minimum building separations considering the nature of the wall proposed and the number of openings or balconies.

AO9.2

Development provides a front boundary setback from a secondary street frontage that is:

  1. for a building that is 3 storeys or less, a minimum of 3m to the balcony or patio line and 4m to the main building line;
  2. for a building that is 4 storeys up to 7 storeys, 4m to the balcony or patio line and 5m to the main building line;
  3. for a building 8 storeys or more, 5m to the balcony or patio line and 6m to the main building line.

PO11

Development provides a side boundary setback that:

  1. minimises the impact of development on the amenity and privacy of neighbouring existing residents;
  2. contributes to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character;
  3. provides for landscaping, natural light, sunlight and breezes;
  4. considers future development.

AO11

Development provides a side boundary setback that complies with:

  1. a neighbourhood plan; or
  2. if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.C.

Refer to Figure d.

PO14

Development ensures that the proportion of buildings to open space and landscaping on a site:

  1. is in keeping with the intended form and character intensity of the local area and immediate streetscape;
  2. contributes to modulation of the building form;
  3. supports residential amenity including access to natural light, sunlight and breeze;
  4. supports private outdoor subtropical living;
  5. provides for communal open space;
  6. provides for deep-planting areas to retain significant vegetation and protect or establish large subtropical shade trees.

AO14

Development has:

  1. a building footprint within the building envelope;
  2. a maximum site cover that:
  1. i. complies with the requirements set out in a neighbourhood plan; or
  2. ii. if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan:
  1. A. where in the Medium density residential zone, Low–medium density residential zone, the Infill housing zone precinct of the Character residential zone or Low density residential zone, is 45%; or
  2. B. where in the High density residential zone, is 40%.

(emphasis added)

  1. [41]
    The Multiple dwelling code applies generally to multiple dwellings, regardless of the zone or neighbourhood plan area in which they are proposed.  As is apparent from provisions such as s 9.3.14.2 2.e. and h., the outcomes sought in the Multiple dwelling code are linked to those set in the relevant zone and neighbourhood plan codes.

Conclusion regarding the guidance on the height, bulk, and scale of development

  1. [42]
    The provisions referred to in paragraphs [23] to [41] above guide the anticipated height, bulk and scale of residential uses on the subject land and contain specific controls in relation to built form and character. 
  2. [43]
    The Medium density residential zone code, the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code all encourage multiple dwellings of up to five storeys.  In particular, ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code reference a quantitative standard of five storeys and encourage development consistent with that standard.  However, when read in the context of City Plan as a whole, the failure to deliver a development compliant with that quantitative standard does not demonstrate that the proposed development is non-compliant with the assessment benchmarks.  The following five contextual considerations support that the quantitative standard referenced in ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code should not be regarded as express discouragement of a six-storey multiple dwelling absent an assessment of a specific proposal in its locational context.[44]
  3. [44]
    First, there are no express provisions stating that development of greater than five storeys is not appropriate, yet in other provisions of City Plan express discouragement of that nature is provided.[45]  For example, the overall outcome in s 9.3.14.2 2.h.iii. of the Multiple dwelling code requires consideration of whether a proposed development is “consistent with” five storeys.  The same outcome also requires the height to be “appropriate to the strategic and local context”.  In some cases, the context may permit an adherence to the quantitative standard without causing tension with the requirement to have a height that is appropriate to the strategic and local context.  In other cases, a tension may arise, suggesting that the phrase “consistent with” should be read with a degree of flexibility.  It should be construed as calling for development that is compatible or harmonious with community expectations informed by those height parameters, not as calling for development that is to be no more than five storeys.  If it were the intention that it be construed as an immutable standard, that could have been easily achieved.  The relevant provisions are not so expressed.
  4. [45]
    Second, the New Farm and Teneriffe Hill neighbourhood plan code, which provides finer grained planning at a local level, only includes the quantitative standard of a maximum height of five storeys and 15 metres in acceptable outcome AO1.  This is of note as compliance with acceptable outcomes is not mandated.  As was observed by His Honour Judge Williamson QC in Northern Properties Pty Ltd v Brisbane City Council & Anor,[46] the structure of City Plan is such that compliance with a performance outcome can be achieved by demonstrating compliance with either the acceptable outcomes applying to the performance outcome or the performance outcome itself.  The Queensland Court of Appeal made similar observations about the non-mandatory nature of acceptable outcomes in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[47]  The Honourable Justice Brown observed:

“While acceptable outcomes in a planning scheme may be relevant in ascertaining the legislative intention of a planning scheme in a particular area, it depends on the terms of the provision itself.”[48]

  1. [46]
    Here, it is of note that performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code does not stipulate a height maximum. 
  1. [47]
    Third, while the references to five storeys provide strong guidance on what the community might expect, other provisions indicate that the appropriateness of the height, scale and form will also be informed by other facts, such as their consistency with the amenity and character existing in, and intended for, the area.[49]  For example, the overall outcome in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code requires consideration of the consistency of the height with the intended character of the Medium density residential precinct. 
  2. [48]
    Performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code also reinforces that the appropriateness of the height is not to be judged only by reference to whether the proposed development is limited to five storeys in height.[50]  That performance outcomes requires development to be “aligned with” community expectations about the number of storeys to be built, but also requires development to be of a height, scale and form that achieves the intended outcome for the precinct and contributes to a cohesive streetscape and built form character.  The community expectations would be informed by the maximum number of storeys referenced by acceptable outcome AO1, but they are also informed by other matters. 
  3. [49]
    This approach to construction of community expectations is consistent with long recognised principles applied by this Court that regard must be had to the physical environment of the locality, including all existing development, even if the existing development was approved under an earlier planning regime.  To disregard existing development because it was approved prior to the planning controls would attribute to the area a character that it simply does not have.[51] 
  1. [50]
    A fourth contextual consideration is that the City Plan provides a pathway to lodge an impact assessment development application for buildings of a height greater than five storeys on land in the Medium density residential zone.  Further, it does not prescribe a planning consequence for multiple dwellings that require impact assessment because they fall outside the encouraged height range.  In this regard, the observations of His Honour Judge Williamson QC in Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors[52] are apposite.  His Honour states that:

“The planning scheme does not, like other contemporary planning schemes, prescribe a planning consequence where a use falls outside the range of uses anticipated in a particular zone.  For example, the planning scheme does not, like other contemporary planning schemes, deem such a use ‘inconsistent development’ in the zone, or as being ‘inconsistent’ with the zone code.[53]  This, in my view, suggests one ought not be too ready to conclude a non-compliance with the zone code is established because, as here, the proposed uses are not expressly anticipated in the Overall outcomes of the zone code.”[54]

  1. [51]
    A fifth contextual consideration is the underlying planning policy intent that informs the provisions.  That policy intent is outlined in the Strategic framework.[55]  That is expressly confirmed with respect to the Medium density residential zone.  The overall outcomes about the role of the Medium density residential zone in s 6.2.1.3 3.a. of the Medium density residential zone code states that development in the zone is to support the implementation of the policy direction set in the Strategic framework, in particular:
    1. (a)
      Theme 2: Brisbane’s outstanding lifestyle and Element 2.2 – Brisbane’s housing and accommodation choices; and
    2. (b)
      Theme 5: Brisbane’s CityShape, Element 5.3 – Brisbane’s Major Centres, Element 5.5 – Brisbane’s Suburban Living Areas and Element 5.8 – Brisbane’s Grown Nodes on Selected Transport Corridors.
  2. [52]
    In terms of policy, City Plan seeks to retain the outstanding lifestyle to which residents of Brisbane have grown accustomed.  This is one of the five themes that forms the policy intent for City Plan.  One of the strategic outcomes designed to retain Brisbane’s outstanding lifestyle is the goal that Brisbane neighbourhoods express their individual identity.[56]  Another is that Brisbane’s housing choices will be integrated within communities and neighbourhoods of the city in a form appropriate to the locality.[57] 
  3. [53]
    With respect to that element of the planning policy, City Plan identifies several specific outcomes sought to be achieved, and associated land use strategies for achieving the specific outcomes.  They include:

3.4.2 Element 2.1–Brisbane’s identity

Table 3.4.2.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

Sense of place

SO1

Brisbane has a strong urban legibility.

L1.1

L1.2

Larger buildings are planned for and deliberately located to enable the design and function of such buildings to contribute positively to Brisbane’s natural and built form legibility.

SO2

Brisbane has a clear identity as a subtropical river city.

L2.1

...

L2.2

Development design includes and protects visual and physical connections to the river and waterways, integrating internal and external spaces.

SO3

Brisbane is experienced as a series of varied, distinctly separate neighbourhoods.

L3.1

Distinct urban neighbourhoods are identified and described, and land use and built form tailored accordingly.

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.

Urban design and architecture

SO12

The urban design of Brisbane’s development is cognisant of the role and function of the individual area in which it is located and reinforces or reinterprets the character of that area.

L12

The design of development in centres and Growth Nodes on Selected Transport Corridors, Suburban Living Areas and Future Suburban Living Areas contributes positively to the desired or emerging character, sustainability, health and wellbeing, legibility and local context of the neighbourhood.

3.4.3 Element 2.2–Brisbane’s housing and accommodation choices

Table 3.4.3.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO2

Brisbane’s housing is diverse in type and form, offering choice to different household types and income levels and individuals with specific housing needs.

L2

Residential development contributes to housing diversity, particularly supporting ageing in place and assisted living and housing suited to households on different incomes, within each neighbourhood and across the city, as outlined in the applicable zone or neighbourhood plan. …

  1. [54]
    In relation to Theme 5: Brisbane’s CityShape, the strategic outcome in s 3.7.1 1.g. states:

“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:

ii. centres, community facilities, medium and high density residential and industrial uses, as indicated in neighbourhood plans and the zoning pattern.

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;

…”

  1. [55]
    The related specific outcomes sought to be achieved, and associated land use strategies, include:

3.7.6 Element 5.5–Brisbane’s Suburban Living Areas

Table 3.7.6.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO1

Suburban Living Areas experience growth in response to local context and needs including centres, community facilities, medium and high density residential and industrial uses.

L1

The zoning pattern shows the development intent that is consistent with local values, constraints and opportunities in the Suburban Living Areas.

  1. [56]
    These provisions of the Strategic framework confirm that the underlying planning policy requires consideration of the appropriateness of the proposed development having regard to the locality and the individual identity of the neighbourhood within which it is proposed.
  2. [57]
    Having regard to the contextual provisions referred to above, properly construed, ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code encourage multiple dwellings up to five storeys but do not set an absolute maximum to which the planning scheme requires rigid adherence.  The appropriateness of a development of greater than five storeys is dependent on an assessment of whether the development is of a height, bulk and scale that is tailored to be appropriate to the strategic and local context, including the existing and intended character of the locality, such that it will be compatible with, and contribute to, a cohesive streetscape and the locality’s character and sense of place.

Is the proposed development of a height, bulk and scale that is appropriate?

  1. [58]
    The Appellants allege that the height, bulk, and scale of the proposed development is not appropriate.  The submissions that the Appellants advance in support of their allegations raise two key factual considerations.
  1. Is the proposed development compatible with, and does it contribute to, a cohesive streetscape, and the existing and intended character and sense of place? 
  2. Is the proposed development located on a suitable site?
  1. [59]
    These factual considerations are also raised by the assessment benchmarks with which non-compliance is alleged.

Is the proposed development compatible with, and does it contribute to, a cohesive streetscape, and the existing and intended character and sense of place?

  1. [60]
    The Appellants contend that the proposed development is not compatible with, and does not contribute to, a cohesive streetscape, the existing and intended character, or the sense of place in the locality. 
  2. [61]
    There was a significant body of evidence that was adduced to address this issue.  It included:
    1. (a)
      the plans of the proposed development, which depict, amongst other things, details of the proposed building, and the footprint and site location of the proposed development and other nearby buildings;
    2. (b)
      photographs and photomontages prepared by Mr Elliott;
    3. (c)
      the evidence of Mr Curtis and Mr Richards, the architects retained by Azure Development Group and the Appellants respectively;
    4. (d)
      the evidence of Mr Powell, Dr McGowan, and Mr Richards, being the experts retained by Azure Development Group, the Council, and the Appellants respectively, with respect to visual amenity impacts; and
    5. (e)
      the evidence of Mr Schomburgk, Ms Morrissy, and Mr Brown, being the town planners retained by Azure Development Group, the Council, and the Appellants respectively.

What is the existing character of the locality and the relevant streetscape?

  1. [62]
    The architects gave evidence about the attributes of the built form and streetscape that inform the character of the locality.[58]  They note that the subject land is located at the southern end of the New Farm peninsular where it adjoins Merthyr Park on the edge of the Brisbane River.  It is located on Oxlade Drive, a local two-lane road.  To the northeast, Oxlade Drive extends from its intersection with Brunswick Street and follows a curved alignment that reflects the path of the Brisbane River.  It extends to the southwest before diverting to the northwest to intersect with Sydney Street and the commencement of Griffith Street.
  2. [63]
    The properties along the curved southwest to southeast frontage to Oxlade Drive form a contiguous strip of properties that adjoin Merthyr Park along the edge of the Brisbane River.  The architects identify that the properties have varying frontage widths, ranging from narrow widths of 15 to 20 metres to wider lots with frontages up to 30 metres.  Three lots have frontages of over 50 metres, including the lot at 148 Oxlade Drive containing the development known as “Kirribilli”. 
  3. [64]
    The existing development on the properties varies but is generally comprised of multiple dwellings ranging in height from two storeys to, typically, four to five storeys, with a small number of buildings at six to nine storeys.  Two notable exceptions are the Kirribilli development that adjoins the subject land to the east, which is 11 storeys in height, and the “Glenfalloch” development located on the corner of Oxlade Drive and Sydney Street, which is 14 storeys in height.
  4. [65]
    The opposite side of Oxlade Drive has built form and streetscape attributes of a different character.  Its character is modulated by a series of intersecting streets that extend from Oxlade Drive to the northwest.  The properties located between the intersecting streets are typically smaller in area.  They have varying shapes and frontage widths due to the angled intersecting streets.  Despite that, the architects agree that those properties generally accommodate a more consistent built form than the existing development on the southwest and southeast side of Oxlade Drive.  The building heights are typically limited to one and two storeys, although there are exceptions that include three and four-storey multiple dwellings towards the northeast end of Oxlade Drive.  The architects agree that the one and two-storey developments comprise houses and multiple dwellings, with many having a refurbished and adapted “character” style that reflects the “timber and tin” heritage of the locality.
  5. [66]
    In the immediate vicinity, and northwest, of the subject land, the streetscape includes a new five-storey development that adjoins the subject land at 160 Oxlade Drive.  This adjoining development is setback from the Oxlade Drive frontage behind a driveway, paving and limited landscaping.  The frontage is open to the street, where it merges with the adjoining verge.  Further to the northwest, there is a contemporary two-storey dwelling, and two-storey replica “character style” dwellings at 162 and 164 Oxlade Drive.  At 166 Oxlade Drive, there is a relatively recently constructed multiple dwelling known as “Platinum”.  It comprises buildings of five and seven storeys.  To its northwest, on the corner of Oxlade Drive and Sydney Street, is the older[59] 14-storey development that is known as Glenfalloch. 
  6. [67]
    To the east, the streetscape in the immediate vicinity of the subject land includes the adjoining development at 148 Oxlade Drive, known as Kirribilli.  It is an older 11-storey multiple dwelling that has an approximate 60-metre frontage to Oxlade Drive and an 83-metre frontage to Merthyr Park.  A tennis court on the property adjoins the common boundary with the subject land but is largely screened from view along the street frontage by vegetation.  The property’s frontage is otherwise partially screened from the view from the street by a wall behind which there is a driveway, carparking and planter boxes.  Further to the east of Kirribilli is a vacant property, followed by multiple dwellings at 136, 130 and 128 Oxlade Drive that are four, five and seven-storeys in height respectively.
  7. [68]
    Merthyr Park adjoins the rear of the subject land along the river frontage.  The park extends from Sydney Street to the Merthyr Bowls Club site.  It is generally characterised by an informal linear strip of mature trees that extend along the park within a grass area that adjoins a pedestrian walkway adjacent to the Brisbane River.  It includes limited street furniture and a small children’s playground.  The park is also characterised by the vertical edge of development that adjoins its northern side and the contrast that this edge provides to the open character of the view to the south across the river to the development on the opposite bank.
  8. [69]
    I accept the above evidence of the architects about the built form and streetscape features of the locality.  It accords with the description provided by the visual amenity experts and the town planners.  It also reflects what is shown in the many photographs of the area and what I observed on the site inspection.[60] 
  9. [70]
    Each of the visual amenity and architecture experts express a view about the existing character of the locality.
  10. [71]
    Mr Richards’ opinions about the existing character of the locality are expressed in very similar terms in each of the Visual Amenity Joint Experts’ Report and the Architecture Joint Experts’ Report.  Mr Richards says that the character on the northern side of Oxlade Drive is generally consistent with its designation in the Low-medium density residential zone.  With respect to the southern side, Mr Richards does not provide a description of the overall impression of character provided by the existing built form.  Instead, he focuses on each individual development and provides a detailed description of the developments known as Glenfalloch, Platinum, Kirribilli, the two dwelling houses at 162 and 164 Oxlade Drive, and the multiple dwelling at 160 Oxlade Drive.  His description of those developments provides little insight into the visual impression created by the individual developments, let alone the overall character of the locality.  Rather, he examines the metrics of each development such as its footprint, site cover, plot ratio, setbacks, and percentage of landscaped area.   
  11. [72]
    The average person does not perceive character as a series of metrics such as plot ratio and site cover.  The character of a locality and of a streetscape is the aggregate impression formed having regard to the individual features and traits of the development in the street or locality.[61]  As such, the evidence of Mr Richards about the existing character is unhelpful.  It does not disclose a reasoning process that assists me to move from the primary evidence of what is in the locality to a conclusion about the existing character of the locality and the streetscape.[62]  It does not assist me to understand what the average person walking the street and looking about would perceive about the character of the locality and the streetscape.[63] 
  12. [73]
    By way of contrast, Mr Powell and Dr McGowan provide a description of the overall impression of the existing character that is derived from the existing built form and streetscape elements. 
  13. [74]
    Mr Powell opines that the taller buildings on the southern side of Oxlade Drive create a wall of development that, when combined with associated landscaping, tends to obstruct clear views of the Brisbane River from Oxlade Drive.  The wall of development provides a noticeable contrast with the predominantly low-rise form on the northern side of Oxlade Drive.  Mr Powell says that when travelling southwest along Oxlade Drive toward the subject land, Kirribilli is apparent at the centre of the vista for the 350-metre journey between Turner Avenue and Hazelwood Street, until turning towards the subject land, at which stage Kirribilli and Glenfalloch both clearly come into view.  In terms of the journey in the opposite direction, travelling south along the final 120-metre leg of Griffith Street toward Sydney Street, Glenfalloch dominates the centre of the vista.  As one passes Glenfalloch and travels the 150-metre journey from Sydney Street south-east along Oxlade Drive toward the subject land, Kirribilli remains at the centre of the vista.  Mr Powell supports this description of the existing character with photographs of the area. 
  14. [75]
    Dr McGowan describes the general locality as exhibiting a varied character.  He attributes the varied character to four factors.  First, the contrast in street patterns.  The northern and eastern part of the southwestern corner of New Farm (being an area defined by Dr McGowan as south of Merthyr Road, west of Brunswick Street and otherwise defined by the Brisbane River) has a regular grid street pattern.  Conversely, the street pattern in the western and southern part of the area is less regular, with deviations in street alignment, including in the alignment of Oxlade Drive.  Second, the land between Oxlade Drive and the river is characterised by medium-high rise development, as opposed to the remainder of the area being characterised by predominantly low-rise development.  The third factor is the range of building forms, including detached housing, attached housing and multiple dwelling units.  Fourth is the range of building ages, with some prominent older buildings such as Kirribilli and Glenfalloch.
  15. [76]
    More proximate to the subject land, Dr McGowan says the character of the area is defined by the distinctive difference in height and development type on each side of Oxlade Drive and the river.  He explains that the river creates a discrete “fringe” between the built form and the river edge.  It also informs the changes in alignment of Oxlade Drive, which runs parallel to the river edge.
  16. [77]
    Dr McGowan opines that the development on the northern side of Oxlade Drive, between Hazelwood Street and Sydney Street, has a consistency in terms of building type and scale.  By way of contrast, development on the southern side of Oxlade Drive exhibits a varied character.  There is some consistency in setbacks to the road on the southern side of Oxlade Drive, but the consistency is disguised to varying degrees by the street trees and the changing alignment of the road.  Otherwise, there is a variation in building heights, building separation, relationship of building bulk to site area (and the associated space around the buildings), building type and form, width of façade presented to Oxlade Drive, and setbacks. 
  17. [78]
    In support of his overall assessment, Dr McGowan describes the visual contribution certain buildings make to the overall character.  He notes that the Glenfalloch and Kirribilli buildings are prominent in the local area because of their much greater height, width, and broad facade presentation to Oxlade Drive.  Glenfalloch is 14 storeys high and about 47.5 metres long.  Kirribilli is 11 storeys high and about 37.5 metres long.  The low site cover of Glenfalloch and Kirribilli and the open space behind them creates a space around the buildings that contributes to their prominence.  Dr McGowan opines that the stepping form of the Platinum building (at 168 Oxlade Drive) is not replicated in the local area.  It assists in providing a visual transition between Glenfalloch and the low-rise development further south.  The Platinum building has a noticeably greater front setback compared to others on the southern side of Oxlade Drive between Sydney Street and Hazelwood Street.  The two houses at 162 and 164 Oxlade Drive are narrow compared to the other buildings on the southern side of the street.  The recent development at 160 Oxlade Street is five storeys.  Dr McGowan notes that it is narrower than Platinum and wider than the nearby houses.  It also has a higher site cover than Platinum.
  18. [79]
    Like Mr Powell and Dr McGowan, Mr Curtis notes that the curved alignment of Oxlade Drive is relevant to the existing character of the locality.  It prevents receptors from viewing the full length of the streetscape at any one time.  Consequently, in Mr Curtis’ opinion, the Oxlade Drive view catchment is comprised of connected segments where receptors move sequentially from one to the next.  The elements within each segment are primarily viewed in relation to each other rather than as part of the entire length of Oxlade Drive. 
  19. [80]
    Mr Curtis says that, given the curved alignment of Oxlade Drive, the subject land is located within an approximate visual catchment that extends between the intersection of Oxlade Drive with Sydney Street in the northwest and Hazelwood Street in the east.  He opines that the relationship of the proposed development to the existing built form within this visual catchment will be most relevant to its compatibility with, and contribution to, a cohesive streetscape.  I accept his opinion.  It accords with what is apparent from the many photographs in evidence before me.
  20. [81]
    Mr Curtis observes that the existing development along the southwest and southeast side of Oxlade Drive is generally more intensive and includes typical building heights of up to four to five storeys.  However, he says that building heights of five to seven storeys, and up to 14 storeys, are prominent within the subject land’s visual catchment.  Further, Mr Curtis says that the differences in adjoining building heights are relatively abrupt in some locations, which creates a contrast in building scale.  He opines that these contrasts diminish the cohesiveness of the streetscape, resulting in a discordant built form character.  In contrast, the existing development on the opposite side of Oxlade Drive is generally more consistent with respect to its height, bulk, and scale.  Mr Curtis opines that this results in a more cohesive streetscape along the northwest side of Oxlade Drive within the subject land’s visual catchment.  Mr Curtis considers that the significant differences in the general built form between the two sides of Oxlade Drive are a defining aspect of its character.  He says the differences would inform the community expectations about the bulk and scale of potential development anticipated along each side of Oxlade Drive.
  21. [82]
    Mr Curtis opines that notwithstanding the discordant character of the streetscape along the southwest and southeast side of Oxlade Drive and the disparity in bulk and scale between the opposite sides, the existing development along both sides of Oxlade Drive provides a vertical edge to the street that reinforces its desirable spatial character.  He says, although discordant, the character is enhanced by landscaping that contributes to the scale and amenity of the street as a pedestrian space.
  22. [83]
    Mr Curtis also addresses the concept of a “sense of place”.  It is not a defined term under City Plan.  Mr Curtis opines that it refers to how a person engages with the qualities that characterise a place.  He says that the spatial quality of the street, although varying, is generally well defined by a contiguous vertical edge of taller development along the southwest and southeast side of Oxlade Drive and a less robust, but still adequate, modulated edge of lower development along the opposite side of the street.  Mr Curtis opines that a factor in the sense of place is the contrast between the variation of the built form on the southern side of Oxlade Drive (which includes abrupt differences in the building heights, visual character and age that result in visual discordance) with the consistency of the built form on the northern side of the street.  Given the diversity of built form on the southern side of Oxlade Drive informs the local sense of place, Mr Curtis opines that the existing sense of place is likely to be relatively resilient to changes to the streetscape, provided the changes do not exceed the degrees of difference that already exist and do not exacerbate the current discordance or diminish the desirable spatial quality of the street.
  23. [84]
    I accept the above evidence of Mr Powell, Dr McGowan, and Mr Curtis about the existing character of the area, the streetscape, and the sense of place.  Their opinions are supported by detailed and cogent analysis and are consistent with what can be observed in the many photographs of the area.
  24. [85]
    I also accept the evidence of Ms Morrissy that the area does not have a consecutive or consistent run of building heights.  This is demonstrated well by the attachments in Mr Brown’s report and the height comparison diagram that is included as Figure 57 in the Architecture Joint Experts’ Report.  There is a lot of “stepping” of the heights between buildings on the southern side of Oxlade Drive.  I accept Ms Morrissy’s opinion that it is a characteristic of this neighbourhood precinct. 
  25. [86]
    The New Farm and Teneriffe neighbourhood plan code summarises the existing character well when it refers to “New Farm’s characteristic diversity of built form”.

What is the intended character?

  1. [87]
    Dr McGowan aptly observes that the zone and precinct designations of the local area broadly reflect the existing pattern of development.  There is a clear distinction between the intended character on the northern side of Oxlade Drive and that on the southern side.  Land on the northern side is predominately included in the 2 or 3 storey mix zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.  Land on the southern side of Oxlade Drive (between Sydney Street and Hazelwood Street), including the subject land, is included in the Medium density residential zone and the Medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.  Merthyr Park is included in the Metropolitan precinct of the Open space zone and the Parks precinct of the New Farm and Teneriffe Hill neighbourhood plan area.
  2. [88]
    Importantly, for reasons provided in paragraphs [22] to [57] above, the intended character is not necessarily limited to buildings that are no greater than five storeys in height.  City Plan is replete with provisions that outline the importance of new development being designed to be compatible with existing built form and to respond to the characteristics of the locality in question.[64]  Further, City Plan explicitly recognises that the existing built form in this locality is diverse.[65]

Is the proposed development appropriate having regard to the existing streetscape and character of the locality and the intended character?

  1. [89]
    Before turning to the evidence that addresses whether the proposed development appropriately respects the existing streetscape and character of the locality and the intended character, it is convenient to make some general observations about the Appellants’ submissions.

General observations about the Appellants’ submissions

  1. [90]
    The Appellants’ submission that the proposed development is not compatible with, and does not contribute to, a cohesive streetscape or the existing character and sense of place is premised on an approach that mirrors that adopted by their architectural and visual amenity expert, Mr Richards.  Although the Appellants accept that the proposed development will contribute to the existing mixed building height, bulk, and scale, they rely on four observations about the metrics of the proposed development in support of their submission.
  2. [91]
    First, the proposed development will have a significantly larger plot ratio than the existing buildings between, and including, Kirribilli and Glenfalloch.
  3. [92]
    Second, at 61 per cent, the proposed development has a much greater site coverage than other buildings on the southern side of Oxlade Street between Kirribilli and Glenfalloch.
  4. [93]
    Third, the Appellants say the proposed development is a “block” with no offsetting characteristics, such as generous setbacks, slender side elevations or low site cover, which they say is a feature of other development on the southern side of Oxlade Drive.[66] 
  5. [94]
    Fourth, the Appellants say that the proposed development equates to a seven or eight-storey building because it has adopted floor-to-floor heights of 3.3 to 3.9 metres rather than the “standard” floor-to-floor height of three metres.
  6. [95]
    In short, the Appellants’ position is premised on a disparity between the metrics of the proposed development and other nearby buildings.  This is not an appropriate approach.  The relevant assessment benchmarks with which non-compliances are alleged do not contain quantitative standards to which development must adhere.  Rather, the assessment benchmarks call for an evaluative judgment about the qualitative contribution the proposed development would make to the streetscape and the character of the locality. 

What was the evidence on this issue?

  1. [96]
    The Appellants invite me to rely on the evidence of Mr Richards generally in relation to this issue.  Mr Richards addressed the issue in the Architecture Joint Experts’ Report and the Visual Amenity Joint Experts’ Report.  His evidence on this issue in each report is largely the same.  He opines that the proposed development is of a height, bulk, scale, and form that does not achieve the intended planning outcomes.  There are three factors that underpin his opinion. 
  2. [97]
    First, as Mr Richards notes in the Joint Experts’ Reports, his opinions have been informed by an understanding of the overall outcomes and performance outcomes of the Multiple dwelling code and the finer-grained, place-specific provisions of the New Farm and Teneriffe Hill neighbourhood plan code.  Mr Richards exposes the basis of his understanding by extracting what he regards as those parts of City Plan that are most relevant to the issues,[67] emphasising those provisions on which he relies, and providing an explanation about his approach to their interpretation.  When one compares Mr Richards’ record of the provisions of City Plan to the planning scheme itself, it is apparent that Mr Richards’ record is littered with errors.  During cross-examination, Mr Richards sought to characterise the errors as transcription errors of little significance.  I disagree with that characterisation.  It is apparent from Mr Richards’ analysis of the provisions that accompanied the extracts that these errors infected his understanding of the assessment benchmarks.  Further, as was revealed during cross-examination, in informing himself about the effect of the assessment benchmarks, Mr Richards’ did not read the whole of City Plan and was not aware of material considerations that inform its meaning.[68]  Mr Richards’ errors were material.  They leave me with no confidence about the reliability of his ultimate opinions regarding compliance.
  3. [98]
    The second factor that underpins Mr Richards’ opinion about the proposed development is his description of the locality.  As I have already observed in paragraphs [71] and [72] above, I do not find Mr Richards’ evidence about the existing character of the locality to be helpful.
  4. [99]
    The third factor that underpins Mr Richards’ opinion about the acceptability of the design of the proposed development (and its impact on character) is his analysis of the design attributes of the proposed development.  The description provided by Mr Richards is rudimentary.  He notes that the overall height is 24 metres because of floor-to-floor heights that are 3.3 to 3.9 metres.  He says this makes the building visually equivalent to an eight-storey building.  He does not explain the basis for this conclusion.  On the premise that the proposed development appears as an eight-storey building, not five-storey, Mr Richards opines that the proposed development does not reflect community expectations and makes no contribution to the amenity of the neighbourhood plan area.
  5. [100]
    I find it difficult to accept that the residents of the area and other members of the community have an appreciation of the height in metres of a “typical” five-storey, six-storey, seven-storey, or eight-storey building, or that they would have an appreciation of the height of the various buildings in metres as they walk or drive through a neighbourhood. 
  6. [101]
    For the reasons provided in paragraphs [71] and [72] and [96] to [100] above, I do not find Mr Richards’ evidence to be persuasive.  I do not accept his opinions. 
  7. [102]
    Whether the proposed development will be compatible with, and contribute to, a cohesive streetscape and the locality’s character and sense of place was also addressed in the Architectural Joint Experts’ Report by Mr Curtis.  He provides a detailed explanation of the basis of his opinion.  It includes his analysis of the existing character of the locality, the streetscape, and the sense of place and its sensitivity to change.  I have already outlined his relevant evidence in that regard, and my reasons for accepting it, in paragraphs [62] to [69] and [79] to [84] above.  Mr Curtis also provides a detailed account of the qualitative architectural attributes that characterise the proposed development’s function, form, and appearance.[69] 
  8. [103]
    In relation to its form and appearance, Mr Curtis explains that the ground storey of the proposed development is configured to integrate with the vehicle driveway and the communal recreation area.  This is achieved by extending a pergola structure across the north facing façade at level 1.  He says the inclusion of the pergola widens the appearance of the built form at ground level to create a “podium like” form that provides a legible base to the building.  Mr Curtis opines that this “podium” provides a human scale interface that is largely open to the street and which allows the ground storey to address and engage passing pedestrians.  The main entrance to the building is clearly visible and is framed by specimen trees set in raised planter boxes.  This provides an attractive transition between the private and public realms.  Mr Curtis opines that the cascading vegetation on the pergola and the planter boxes on the storeys above complement the frontage landscaping and contribute to the landscape character and amenity of the street.
  9. [104]
    Above the “podium”, the stack of consistent floor plates creates an extruded form that is capped at level 5 by the setback of the external walls and the fringe of cascading landscaping.  Mr Curtis explains that this results in a tripartite composition of the façade.  He says the stepped profile of the tripartite composition modulates the height of the built form to provide a gradation and fragmentation of the proposed development’s bulk.  He opines that it also provides a visual reference in the built form that reflects the varying heights of other existing development in the streetscape.  These references will assist the proposed development to integrate into the streetscape and facilitate a transitional relationship between the varying building heights to achieve a more cohesive streetscape appearance.
  10. [105]
    Mr Curtis opines that, at a height of six-storeys plus a roof terrace, the proposed development does not alter the existing visual dominance of Kirribilli and Glenfalloch.  Mr Powell and Dr McGowan express similar views.  Their views in this respect were not challenged.  Figures 52 and 57 of the Architecture Joint Experts’ Report and the photomontages support the opinions expressed by Mr Curtis, Mr Powell, and Dr McGowan.  The plans show that the upper level, including the pergola on the roof terrace, involves a notable step in from the edges of the building and that the uppermost projection of the built form and landscaping sits well below the topmost projection of Kirribilli.  I accept this evidence of Mr Curtis, Mr Powell, and Dr McGowan.
  11. [106]
    Even though the proposed development does not alter the existing visual dominance of Kirribilli and Glenfalloch, it has a height that relates well to Kirribilli and the other buildings in its vicinity.  The proposed development replaces the jarring visual difference between the existing single-storey houses and the 11-storey Kirribilli with a building that mitigates the visual discordance caused by the differences in height on the southern side of Oxlade Drive.  It does so by reinforcing the gentle gradation and transition in height introduced by recent nearby developments.  As is depicted in the height comparison diagram that is figure 57 of the Architecture Joint Experts’ Report and the cross section of Oxlade Drive at figure 5 of the Joint Town Planning Report, the built form of the proposed development will result in a series of gradual steps in the height of built form in the subject land’s visual catchment.  Relevantly, the elements of the built form that provide the gradual steps are:
    1. (a)
      the top of the lift shaft overrun on Kirribilli at 33.5 metres;[70]
    2. (b)
      the top of the Kirribilli building at 30.5 metres;[71]
    3. (c)
      the top of the western wall of Kirribilli at about 27.8 metres;[72]
    4. (d)
      the top of the pergola on the roof terrace of the proposed development at about 24.3 metres;[73]
    5. (e)
      the top of the stepped in parapet at about 21.9 metres;[74]
    6. (f)
      the top of the outermost building projections (at level 5) at about 17.3 metres;[75]
    7. (g)
      the top of the recently constructed five-storey building adjoining the subject land to the west (being 160 Oxlade Drive) at 15 metres;
    8. (h)
      the top of the two-storey houses at 162 and 164 Oxlade Drive;
    9. (i)
      the top of the eastern portion of Platinum (168 Oxlade Drive) at 17 metres and the top of the western portion at 22 metres;[76] and
    10. (j)
      the top of Glenfalloch at 47 metres.[77]
  12. [107]
    I accept the opinion of Mr Curtis that the relationship between the height of the various built form elements of the proposed development and that of existing nearby development will mitigate the discordance occasioned by the height differences in the existing buildings and will contribute to a more cohesive streetscape.
  13. [108]
    With respect to the width of the proposed development, Mr Curtis explains that the symmetrical composition gives clear expression to two mirrored stacks of apartments that are separated by a deep central recess.  Each of the stacks of apartments is framed by white cladding that contrasts with the darker window framing, shutters, and balcony balustrades.  Mr Curtis opines that this symmetrical bifurcation of the northern façade accentuates the vertical proportion of the architectural composition to modulate the façade’s width and create a more slender and elegant appearance.  He says each of the two halves reflect the approximate width of the adjoining five-storey multiple dwelling to the northwest and the “urban grain” of the development on the opposite side of Oxlade Drive.  Further, Mr Curtis opines that the re-entrant corners on each side of the façade set against the greater width of the built form (and set back behind the front line of the building) assist to accentuate the slender composition of the northern façade and mitigate the visual bulk of the built form.  Mr Curtis’ opinion, in this respect, was unchallenged.  The opinion is supported by the plans and the photomontages, and I accept it.
  14. [109]
    Mr Curtis gave evidence about other design measures that have been adopted that will mitigate the visual bulk of the proposed development and assist it to integrate into the streetscape.  Mr Curtis explains them in detail in the Architecture Joint Experts’ Report.  In summary, they include:
    1. (a)
      a modulated geometric form that:
      1. differentiates the top, middle and lower storeys to create a familiar tripartite architectural composition; and
      2. shapes the built form to fragment its bulk and create smaller, human-scale components that reflect the size and proportion of existing nearby developments, which assists integration into the streetscape;
    2. (b)
      significant articulation that provides:
      1. visual depth to the north and south facing facades and thereby reduces the solidity of their appearance and bulk; and
      2. human-scale elements that provide visual complexity and interest, and create the appearance of an assemblage of elements as opposed to a singular monolithic form, thereby fragmenting the appearance of each façade and mitigating the visual impact of the building’s bulk;
    3. (c)
      selection of external colours and finishes that complement and accentuate the modulation of the building form and the articulation of its appearance.  In terms of the appearance of height, Mr Curtis opines that the darker colouration of the level 5 external walls, together with the increased setbacks that accommodate landscaping, creates a visually recessive element at the top of the building and results in the lower storeys being more visually prominent;
    4. (d)
      a human-scale ground storey that is largely open to the Oxlade Drive frontage and the Merthyr Park frontage, allowing visual connectivity and engagement between the private and public realms, assisting with integration with the street; and
    5. (e)
      significant landscaping in the frontage that further assists to integrate the proposed development with the adjoining pedestrian environment.
  15. [110]
    Mr Curtis’ evidence was not meaningfully challenged.  During cross-examination, Counsel for the Appellants sought to marginalise Mr Curtis’ evidence on the basis that the same design attributes could be employed in a building that was lower in height and which had greater setbacks.  That line of questioning is unhelpful.  It has long been recognised by this Court that it is not the function of the Court to redesign a development.  The Court’s function is to pass judgment on the development that is proposed.[78]
  16. [111]
    Mr Curtis’ opinions are supported by that which is depicted in the plans and photomontages.  It is also consistent with the evidence of Mr Powell and Dr McGowan.
  17. [112]
    Mr Powell opines that the proposed development will maintain a complementary visual relationship with other buildings in the vicinity.  He says that it will do so by providing for a transition of building height between immediate neighbours to the east and west while stepping back the upper level from dwelling houses across the road to the north.  He says the proposed development contributes to a cohesive streetscape character as it maintains Kirribilli and Glenfalloch as the dominant building forms at or near the centre of vistas travelling along straight sections of Oxlade Drive and Griffith Street.  It also adopts front boundary and streetscape setbacks up to the fifth storey that are consistent with the immediately adjoining neighbour to the west, while stepping back the sixth storey consistent with the setback of the 11-storey neighbour to the east.  Mr Powell explains the basis of his opinions well by reference to the plans and photomontages.
  18. [113]
    Dr McGowan expresses similar opinions.  He opines that the proposed development will achieve appropriate compatibility with the existing and intended character of the area as it will reinforce the general structure of the local area, particularly the clear difference in building scale and form on either side of Oxlade Drive.  He says the proposed development will sit comfortably in the context of more intense built form on the southern side of Oxlade Drive, where there are noticeable variations in terms of building height bulk and scale.
  19. [114]
    In addition, Dr McGowan opines that the proposed development will achieve compatibility with development parameters on the southern side of Oxlade Drive and will achieve a harmonious visual relationship with adjacent development.  In that respect, he makes three relevant observations.  First, the proposed development has front setbacks that are consistent with the five-storey development at 160 Oxlade Drive, as well as the two houses at 162 and 164 Oxlade Drive.  It is also consistent with the front setback for Kirribilli.  The consistency is illustrated on the plans.  Second, the length of the proposed development is similar to the five-storey development at 160 Oxlade Drive and Platinum.  The width of the façade of the proposed development facing Oxlade Drive is greater than that of the development at 160 Oxlade Drive, but less than Platinum, and substantially less than Kirribilli and Glenfalloch.  Third, the proposed development will achieve a scale relationship with Kirribilli and 160 Oxlade Drive.  The additional height will not cause the building to be incompatible with the other built form on the southern side of Oxlade Drive, particularly as the recessed upper level will not be a prominent part of the building.  This is evident in the photomontages. 
  20. [115]
    I accept the evidence of Mr Curtis, Mr Powell, and Dr McGowan.  They provide cogent explanations for their opinions, which are supported by what is evident in the plans and photomontages.

Are the setbacks, building separation and site cover of the proposed development appropriate in character terms?

  1. [116]
    In addition to alleging that the overall height, bulk, scale, and form of the proposed development is inappropriate, the Appellants allege that individual development parameters, such as setback and building separation, have an inappropriate character and streetscape impact. 
  2. [117]
    Despite levelling multiple allegations, the Appellants have provided me with no assistance in this regard.  Their submissions do not address the evidence they say demonstrates non-compliance, nor articulate how each parameter, individually, fails to achieve the intended outcome.  The Appellants’ written submissions set out each of the relevant planning provisions, but only address the provisions by asserting non-compliance “for reasons set out earlier in these submissions” (and other like phrases).  Their earlier submissions only address the differences from the acceptable outcomes in numeric terms.  They do not address the qualitative outcomes sought with respect to setbacks, building separation and site cover.  The Appellants’ submissions reflect the approach taken by their expert, Mr Richards. 
  3. [118]
    The metrics of the proposed development are relevant but are not necessarily determinative.  Nevertheless, it is informative to consider them before addressing the qualitative considerations.
  4. [119]
    The proposed development’s boundary setbacks are:
    1. (a)
      from Oxlade Drive to the north: a minimum of 6.795 metres at ground level, between 4.35 metres and 6.82 metres to the balconies at levels 1 to 4; and between 7.82 metres and 9.784 metres to the external walls at level 5;
    2. (b)
      from Merthyr Park to the south: 4.3 metres to the balconies and between 6.59 metres and eight metres to external walls at levels 1 to 5;
    3. (c)
      from the western side boundary: between 1.425 metres and 1.83 metres to the basement stair and typically between 3.18 metres and 4.54 metres to external walls at ground level; typically between 3.18 metres and 4.54 metres to external walls but a minimum of 2.029 metres to the nearest planter box at levels 1 to 4; and between 5.536 metres and 7.051 metres to external walls at level 5; and
    4. (d)
      from the eastern side boundary: between 2.553 metres and 4.313 metres and a minimum of 1.898 metres to the nearest planter box at levels 1 to 4; and between 5.326 metres and 6.306 metres to external walls at level 5.
  5. [120]
    These figures reveal that the front setback, for part of the building, is less than the minimum of six metres from any road alignment stipulated in acceptable outcome AO10 of the New Farm and Teneriffe Hill neighbourhood plan code.  The side and rear boundary setbacks are also slightly less than that sought in the acceptable outcomes. 
  6. [121]
    The proposed development has a gross floor area of 2,531.5 square metres and a site cover of 676.9 square metres (equating to 61.7 per cent of the subject land).  This is greater than the standard referenced in acceptable outcome AO14 of the Multiple dwelling code, being 45 per cent.  Despite that, the proposed development includes significant area dedicated to landscaping and open space.  There is landscape open space of 504.6 square metres (equating to 46 per cent of the area of the subject land), deep planting of 146.1 square metres (being 13.3 per cent of the subject land), communal open space of 235.7 square metres (or 21.5 per cent of the subject land), and private open space of various sizes between 30.7 square metres and 197.9 square metres. 
  7. [122]
    It is apparent from the analysis of the metrics of the proposed development above that some of the built form parameters do not comply with acceptable solutions in City Plan.  However, these non-compliances are not determinative of the outcome of the appeal.  Rather, they highlight the need to consider the qualitative outcomes sought with respect to setbacks, building separation and site cover.
  1. [123]
    Here, although there is general consistency in front setbacks on the northern side of Oxlade Drive, there is considerable variation in front setbacks on the southern side.  The variation in setbacks on the southern side of Oxlade Drive is part of the character of the streetscape.  The streetscape on the southern side of Oxlade Drive does not admit of a design solution that would provide uniformity or compatibility with all setbacks.  Nevertheless, I am satisfied that the proposed development achieves a street setback that is compatible with the existing setbacks and which appropriately relates to the existing streetscape and setback pattern.  As is explained by Mr Powell, the proposed development does so by adopting front boundary and streetscape setbacks up to the fifth storey that are consistent with the immediately adjoining neighbour to the west, while stepping back the sixth storey to be consistent with the setback of the 11-storey neighbour to the east.  I accept his evidence.  I also accept the evidence of Dr McGowan in paragraph [114] above.  The evidence of Mr Powell and Dr McGowan is supported by what is depicted on the plans.  Further, the details depicted on the proposed site plan, including the building footprint of the buildings nearby, and the photomontages demonstrate that the visual impact of the proposed development having a smaller setback than that of Kirribilli is disguised by the bend in Oxlade Drive and the proposed landscaping.  In those circumstances, I am satisfied that the front setback appropriately relates to the existing streetscape and setback pattern and is sufficiently compatible with existing setbacks in the area.  It complies with performance outcome PO10 of the New Farm and Teneriffe Hill neighbourhood plan code.
  2. [124]
    Further, having regard to the photomontages and photographs of the area, the north elevation (which provides a visual depiction of the front of the building), the evidence of Mr Curtis referred to in paragraphs [103] to [109] above, the evidence of Mr Powell referred to in paragraph [112] and [123] above and the evidence of Dr McGowan in paragraphs [77], [78] and [114] above, I am satisfied that the proposed development complies with performance outcome PO9 of the Multiple dwelling code.  It provides a front boundary setback that:
    1. (a)
      defines the street edge;
    2. (b)
      creates a clear threshold and transition from public to private space;
    3. (c)
      assists in achieving visual privacy to ground-floor dwellings from the street;
    4. (d)
      supports the location of balconies for casual surveillance of the street and modulation of the facade; and
    5. (e)
      contributes to the streetscape character and landscape.
  1. [125]
    In terms of the side and rear setbacks, I accept the Appellants’ contention that they are considerably less than those provided at Kirribilli and Glenfalloch.  Despite that, I am satisfied that they are appropriate.  They are commensurate with the setbacks at 160 Oxlade Drive and the other, newer development on the southern side of Oxlade Drive.[79]  They also maintain the dominance of Kirribilli and Glenfalloch in the streetscape and in views from Merthyr Park, in circumstances where the visual dominance is informed by their height and the space around the buildings.  In those circumstances, I am satisfied that the proposed development will separate buildings from existing buildings on adjoining sites in a manner that is consistent with the form and character intent for the local area.  The proposed development also provides side boundary setbacks that appropriately contribute to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character.  As a result, the proposed development complies with performance outcomes PO8 and PO11 of the Multiple dwelling code.
  2. [126]
    In relation to site cover, having regard to the evidence of Mr Curtis, Mr Powell and Dr McGowan referred to above, and their evidence about landscaping referred to below, I am satisfied that the proposed development has a proportion of buildings to open space and landscaping that is in keeping with the intended form and character intensity of the local area and the immediate streetscape. 

Is the proposed development located on a suitable site?

  1. [127]
    The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.1.3 4.a. of the Medium density residential zone code on the basis that it is not located on a suitable site. 
  2. [128]
    The subject land consists of three separate lots that have a total combined area of 1,097 square metres.  It is trapezoidal in shape, with a narrower (24 metre) frontage to Oxlade Drive and a wider (30 metre) frontage to Merthyr Park and the Brisbane River.  There is a gentle fall across the subject land towards the Brisbane River.  The existing dwellings on the subject land are not protected under City Plan, nor is the existing landscaping.  It is ripe for redevelopment.
  3. [129]
    The locational attributes of the subject land support its suitability for medium density residential development.  The subject land is located within the inner-city suburb of New Farm.  It adjoins Merthyr Park.  It has a high level of accessibility to transport options.  It is proximate to the extensive pathway network in the adjoining Merthyr Park and to a ferry link (as is evident from the photomontages in Exhibit 3).  The high level of accessibility of the subject land and its consequent suitability for medium density residential development is reflected in the finer-grained planning for the area.[80]  
  4. [130]
    The Appellants do not explain why these attributes of the subject land and its location are demonstrative of it not being a suitable site for the proposed development.  They do not they identify any other site attributes that support their allegation that the site is not suitable. 
  5. [131]
    The Appellants submit that the apartments at the western end of Kirribilli have been designed to take advantage of river views.  This is said to be a significant feature of the design of that building.  Having regard to that design feature of Kirribilli, the Appellants submit that the proposed development is not located on a suitable site.
  6. [132]
    The Appellants do not explain how the design of Kirribilli affects the suitability of the subject land for medium density residential development.  The design of Kirribilli may be relevant to assessment of acceptability of the design of the proposed development, but I do not accept that it is relevant to the suitability of the subject land for medium density residential development.
  7. [133]
    I am satisfied that the subject land is a suitable site for the proposed development.

Conclusion regarding the appropriateness of the height, bulk, and scale of the development

  1. [134]
    The assessment of whether the height, bulk and scale of the proposed development acceptably achieves the planning outcomes sought in the assessment benchmarks requires an evaluative judgment.[81] 
  2. [135]
    For the reasons set out above, I am satisfied that the proposed development is a well-designed, location-responsive medium density residential development.  Its height, bulk, scale, and form has been considerately tailored to its specific location.  It reflects the character of the area in which it is located.  It appropriately responds to the characteristics of the subject land, as well as the height, bulk, and nature of adjoining buildings.  The recessed upper storey ensures the proposed development co-exists comfortably with dwelling houses on the opposite side of Oxlade Drive.  The height of the proposed development improves the cohesiveness of the streetscape and built form character of the area by replacing the visually jarring steps that presently exist with a gradual transition in height. 
  3. [136]
    At six storeys in height, the proposed development is greater than the five storeys encouraged in the overall outcomes in ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code.  Despite that, when the requirements of City Plan are read as a whole[82] and the proposed development is considered in its context, I am satisfied that its height is appropriate.
  4. [137]
    It is apparent from the evidence of the town planners, and the plans, that the proposed development does not achieve several of the acceptable outcomes in the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code.  They include acceptable outcomes with respect to front and rear boundary setbacks, side boundary setbacks, building separation, and site cover.  Those non-compliances are immaterial in this case because I am satisfied the proposed development achieves the planning outcomes sought in the associated performance outcomes. 
  5. [138]
    Overall, I am satisfied that the proposed development achieves the planning goals with respect to height, bulk, scale, and form in the relevant assessment benchmarks, namely:
    1. (a)
      the overall outcomes in ss 6.2.1.3 4.a. (in part) and 6.2.1.3 5.a., b. (in part), c., d., and e. of the Medium density residential zone code;
    2. (b)
      the overall outcomes in ss 7.2.14.1.2 3.a., b., f., m. and 6.a., and performance outcomes PO1, PO7, PO8 and PO10 of the New Farm and Teneriffe Hill neighbourhood plan code; and
    3. (c)
      the overall outcomes in s 9.3.14.2 2.e., h., j., and l., and performance outcomes PO5, PO6, PO7, PO8, PO9, PO11 and PO14 of the Multiple dwelling code.
  6. [139]
    To the extent that the proposed development is not encouraged as a preferred or acceptable land use under ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code, I do not consider this to be determinative of the outcome of this appeal for each of two reasons.  First, when those provisions are read in the context of City Plan as a whole, the failure to adopt the encouraged solution of five storeys could not properly be regarded as a non-compliance with the assessment benchmarks.[83]  Second, for reasons already provided, I consider the height of the proposed development to be appropriate.  It is consistent with community expectations as required by s 9.3.14.2 2.h. of the Multiple dwelling code.[84]  It also complies with the quantitative outcomes sought in City Plan, including those in the overall outcomes in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code without the need to demonstrate a community or economic need.

Will the proposed development cause unacceptable amenity impacts?

  1. [140]
    The Appellants are residents of the neighbouring Kirribilli apartment building.  They allege that the proposed development will cause them unacceptable amenity impacts. 
  2. [141]
    Amenity is a broad and flexible concept and covers a wide range of considerations, both tangible and intangible.[85]  That said, assessment of amenity impacts is not undertaken in the abstract.  It is informed by the planning scheme. 
  3. [142]
    In Wattlevilla Pty Ltd v Western Downs Regional Council & Anor,[86] His Honour Judge Robertson said that:

“The standard of amenity that residents are entitled to enjoy or expect is to be assessed objectively having regard to the Planning Scheme and its intent for development of the area.”[87]

  1. [143]
    Similar observations were made by this Court in Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors.[88]  His Honour Judge Dodds observed that:

“[40] A person’s right to put their land to any lawful use they wish is in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected (sic) by some special sensitivity or eccentricity”. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject. The views may be supported by other evidence or other independent evidence may show that in an objective sense they are overblown as in Telstra Corporation Limited v. Pine Rivers Shire Council [2001] Q.P.E.L.R. 350.”[89]

  1. [144]
    The Appellants’ concerns about the amenity impacts for the local community and surrounding residents primarily relate to views to the Brisbane River, privacy, and overshadowing.  I will address the alleged amenity impacts in that order.

Will the proposed development result in an unacceptable loss of views?

  1. [145]
    The overall outcome in s 6.2.1.3 5.d. of the Medium density residential zone code requires that development respond to local characteristics, such as protection of view corridors.[90] 
  2. [146]
    The finer-grained planning in the New Farm and Teneriffe Hill neighbourhood plan code seeks a similar outcome.  Relevantly, performance outcome PO7 requires development to ensure “new buildings maintain views to and from the river”.[91] 
  3. [147]
    Maintain” is defined in the Macquarie Dictionary[92] to mean:[93]

“1. to keep in existence or continuance; preserve; retain … 2. To keep in due condition, operation, or force; keep unimpaired …”

  1. [148]
    Performance outcome PO7 should be construed in the context of acceptable outcome AO7, since that provides one way of complying with the performance outcome.
  2. [149]
    Acceptable outcome AO7 encourages development that is up to five storeys and 15 metres in height.  In that context, performance outcome PO7 cannot be construed as requiring the maintenance of all current views to and from the river and other landmark sites, given a five-storey and 15-metre-high building is capable of obstructing views to and from the river and other landmark sites. 
  3. [150]
    Further, compliance with acceptable outcome AO7 is not mandatory.  It is only one way of complying with performance outcome PO7.  As such, a development of a greater height must be within contemplation.
  4. [151]
    This construction is consistent with the approach adopted by this Court in Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors.[94]  In that case, the Court was considering a similarly worded provision under Brisbane City Plan 2000, namely:

“P1 New buildings must maintain views to and from the River and other landmarks identified on Map A – New Farm and Teneriffe Hill, while maintaining a visual relationship with other buildings in the vicinity.”[95]

  1. [152]
    His Honour Judge Robin QC observed:

“… It seems obvious that the views are ones across a site that a new building there might disrupt, rather than views to be enjoyed from the site. The question arises whether each relevant view is to be absolutely unimpaired, so that a slim flagpole, say, would offend – or whether some impairment is to be tolerated, with recourse to some “standard” such as what is “reasonable”. That AS1 identifies five storeys/15m (plus roof structure) as the “preferred way” of complying with the PC makes the absolutist approach unsupportable. In common parlance, a “view” need not be expansive – a sliver is enough to support assertions that a property has a view of ocean, harbour, lake or river – literally there is a view “to” the river, however narrow it be, provided a sight line to the water is available. It would seem unreasonable to hold P1 satisfied in this regard by leaving open a narrow sight line, in place of an existing wide or expansive vista. The decision maker, now the Court, is therefore driven to determine what is acceptable or reasonable, which will in almost all cases allow a range of legitimate outcomes, rather than there being a restriction to an all or nothing outcome or to one particular position in the middle. …”[96]

  1. [153]
    The Appellants concede that the loss of views from lower levels of Kirribilli is not unacceptable.  However, they say that the proposed development will cause significant impacts to the visual amenity of units on the western side of Kirribilli from level 6 to level 9 (being the seventh to tenth storeys).  This submission is premised on their assertion that, absent a community and economic need for the proposed development, the reasonable community expectations are for a building that is five storeys and 15 metres high.  I do not accept the premise for the submission.  For reasons already provided, I am of the view that the height, bulk, and scale of the proposed development accords with reasonable community expectations for development on the subject land.  As such, it is not necessary for Azure Development Group to demonstrate a community and economic need for the proposed development.
  2. [154]
    Although I do not accept the premise of the Appellants’ allegation of non-compliance, it is nevertheless appropriate that I consider whether the proposed development results in an unacceptable loss of views having regard to the evidence about the extent of impact.
  3. [155]
    It is uncontroversial that the proposed development does not affect views to and from any of the landmark sites identified in Figure a of the New Farm and Teneriffe Hill neighbourhood plan code.  The relevant views to be considered are those to and from the river.
  4. [156]
    Each of the Appellants provided a statement about the views that they enjoy and their personal expectations with respect to those views.
  5. [157]
    Mr McKay is the owner and occupier of apartment 704 in Kirribilli.  It is the western facing apartment on level 7.  In his statement, Mr McKay says he was attracted to the property by its large living area with its magnificent views of the river and city.  He says the views are apparent as soon as you walk through the front door.  He describes them as 180-degree views from his main living room, spanning from north of the Story Bridge to east of Mowbray Park.  He says the views are captured through a bank of windows along the entire western wall that cover more than half of the height from floor to ceiling.  He expresses concern that the proposed development will change the whole light and airy feel of the apartment.
  6. [158]
    Mr Panozzo is the owner and occupier of unit 903 in Kirribilli.  Unit 903 is also located on the western side of the Kirribilli building.  Like unit 704, it has expansive river views from the rear balcony.  Mr Panozzo explains that, from the unit, he and his wife enjoy watching the boats on the river and the view of the central business district during the day.  At night, he says that they enjoy spectacular views, including that of the Story Bridge.  He is concerned that the proposed development will obscure his current outlook of the river and the Merthyr Park green space.
  7. [159]
    Mr Jensen lives at unit 801 on the ninth floor of Kirribilli.  He was attracted to buy at this location because of the amount of light the unit received and the views it enjoyed.  He expresses concern that the proposed development will completely obstruct the views to the west that he has from his balcony on the northern side of Kirribilli.  From that balcony, Mr Jensen says he can see the river to the east and the west.
  8. [160]
    The Appellants also tendered statements from Mr Woods and Mr Lane. 
  9. [161]
    Mr Woods is the owner of unit 803 (which sits on the floor between units 704 and 903).  It is on the western side of Kirribilli.  Mr Woods became the owner of the unit after the Council approved the proposed development and was aware of the approval at the time of purchase.  Despite that, he is now concerned that the proposed development will severely impact the views from his property.
  10. [162]
    Mr Lane is an owner of the dwelling house at 131 Oxlade Drive, which is diagonally opposite the subject land.  He is concerned that the proposed development will “wall-off” part of his connection to the river. 
  11. [163]
    In addition to their common concern about loss of views, each of the residents of the area who gave evidence explained that they had an expectation that any development on the subject land would be limited to five storeys and 15 metres in height.
  12. [164]
    Each of Mr Richards, Mr Powell and Dr McGowan gave expert evidence about the likely impact that the proposed development would have on the views enjoyed by residents of Kirribilli.
  13. [165]
    Mr Richards opines that the loss of views is substantial.  His opinion is premised on the difference in impact that would be occasioned by a hypothetical “compliant” development limited to 15 metres in height.  This approach is unhelpful.[97]  I do not accept the evidence of Mr Richards.
  14. [166]
    Mr Powell opines that the proposed development will not unreasonably impact views to the river from Kirribilli.  His opinion is informed by six matters.  First, he says the proposed development is well-separated from Kirribilli.  Second, the shape and orientation of the subject land, in addition to the alignment of the building on the subject land, forces the proposed building to step further away from Kirribilli as it extends towards the river (up to 25 metres away).  Third, the proposed development will not impact the southerly river views from Kirribilli.  Fourth, part of the westerly river view currently obtained across the subject land by residents of Kirribilli at or below level 6 would be obstructed by a code assessable building of 15 metres in height on the subject land.  Fifth, the upper levels of Kirribilli (levels 8-10) are configured and oriented such that the river views from level 10 are largely unimpacted and the view of the river when one first enters apartments on levels 8 and 9, that is the view via the bedroom balcony to the south, is unimpacted.  Those floors are also elevated enough to continue to achieve westerly views to the river and views of parts of the riverbank opposite.  Sixth, the part of the proposed development that extends above 15 metres in height is likely to have the greatest impact on the westerly views from level 7 of Kirribilli.  Nevertheless, the substantial building separation and the orientation of the respective lots necessitated by the bend in the river has the consequence that the residents will maintain views of the open water and the banks of the river.  The proposed development also achieves a degree of transparency and provides reflection of river views through the rear open deck and windows, which are angled away from Kirribilli.  The proposed development would not impact the more expansive river views available via the southern balcony doors.
  15. [167]
    Dr McGowan agrees with Mr Powell in this regard.  I accept their evidence.  It accords with what is depicted in the photomontages prepared by Mr Elliott, including the photographs and photomontages from the living room, kitchen, and southern balcony of unit 704 and from the living room and southern balcony of unit 903 of Kirribilli.  Mr Elliott’s evidence was unchallenged, and I accept the photomontages are an accurate visual depiction of the proposed development from the relevant vantage points.
  1. [168]
    The photomontages show that the proposed development will be visible from the rear balcony of unit 704, but the residents will maintain expansive river views.  Although part of the proposed development will come into view through the living room windows, a substantial proportion of the river views will still be available.  During cross-examination, Mr McKay conceded that he would still enjoy good river views when standing closer to the windows than the position of the photographer for the photomontages.
  1. [169]
    Like for unit 704, part of the river views along the western windows of unit 903 will still be available, even though part of the proposed development will come into view.  As was accepted by Mr Panozzo during cross-examination, the extent of river views would be even more expansive than that shown in the photomontage as the viewer moves closer to the living room windows.
  2. [170]
    Unit 801 is located on the eastern side of the Kirribilli building.  It enjoys excellent river views from the living and dining areas.  It is apparent from the orientation of the building and the location of that unit in the building that those views would not be affected by the proposed development.  Any loss of river views will only be those from the northern balcony, which also has views of the central business district and the Story Bridge.
  3. [171]
    As for Mr Lane, any current river views from Mr Lane’s dwelling house would likely be affected by any multiple dwelling development on the subject land, even if it were limited to five storeys and 15 metres in height. 
  4. [172]
    I accept that the concerns of the residents about the impact of the proposed development on their views of the river are genuinely held.  The proposed development will result in the partial loss of an attractive view.  Despite that, the Appellants’ expectations about the extent of views they would maintain are out of step with the effect of City Plan when read as a whole.  Further, the evidence does not support the Appellants’ submission that the impact will be significant and unacceptable. 
  5. [173]
    I am satisfied that the Appellants (and Mr Woods) will continue to have excellent river views, even if the proposed development is approved.  In the circumstances, the loss of part of their river views caused by the proposed development does not pose a material, undue impact.  The proposed development will maintain views to and from the river to an appropriate extent. 
  6. [174]
    For the reasons provided above, I am satisfied that the proposed development complies with the relevant assessment benchmarks with respect to maintenance of views.

Will the proposed development result in unacceptable privacy and overlooking impacts?

  1. [175]
    The Appellants allege that the proposed development will unacceptably impact on the privacy of residents in Kirribilli.
  2. [176]
    Performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code[98] requires that development is designed to improve the amenity of the neighbourhood plan area and avoid a significant and undue adverse amenity impact to adjoining development.  It further requires that development is sited to enable existing and future buildings to be well separated from each other and to avoid affecting the potential development of an adjoining site.
  3. [177]
    Several of the overall outcomes in s 9.3.14.2 of the Multiple dwelling code also seek to generally regulate the potential for unacceptable impacts on neighbours.  They include the overall outcomes in ss 9.3.14.2 2.a., i., j., l., and q., some of which are set out in paragraph [39] above.  The others state:

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

a. Development has a site area and frontage width that is sufficient for the scale and form of a multiple dwelling development, to deliver a comfortable living environment with minimal impacts on neighbours.

i. Development provides setbacks and separation of buildings that contribute to the amenity of residents within and adjoining the site and to Brisbane’s high-quality subtropical streetscapes and public spaces.

q. Development interfaces with adjoining residential uses and is managed to mitigate amenity impacts including protecting visual privacy through appropriate separation of buildings and screening.”

  1. [178]
    Guidance is also provided in performance outcomes PO5, PO7, PO8, PO11 and PO14 and their associated acceptable outcomes contained in Table 9.3.14.3.A of the Multiple dwelling code.[99]  They require development to:
    1. (a)
      be designed having regard to adjoining buildings and the extent of separation of buildings necessary to ensure impacts on residential amenity and privacy are minimised;
    2. (b)
      provide buildings that are reduced in bulk and form to provide a transitional built form of compatible scale which protects the amenity of lower density residential areas bordering medium and high density residential areas by minimising impacts, including overlooking and visual dominance, through building articulation;
    3. (c)
      separate buildings from existing or future buildings on an adjoining site to protect residential amenity, including access to natural light, sunlight and breeze and to provide visual privacy to reduce the need for fixed screening;
    4. (d)
      provide a side boundary setback that minimises the impact of development on the amenity and privacy of neighbouring existing residents; and
    5. (e)
      ensure that the proportion of buildings to open space and landscaping on a site supports residential amenity, including access to natural light, sunlight, and breeze.
  2. [179]
    The Appellants submit that the extent of the impact upon views is informative with respect to the impacts upon privacy.  They say that the absence of built form at the height of the upper levels of Kirribilli is such that its residents enjoy the views without any impact upon privacy.  They assert that the introduction of the proposed development into that space will unacceptably impact upon privacy.  They rely on three matters to support their submissions.  First, the photomontages show that there are lines of sight between the living areas of the proposed development and the living areas and verandas of the upper levels of Kirribilli.  Second, in relation to the lower levels of Kirribilli, Mr Richards identifies that there are large windows to habitable rooms on the side elevations within three metres of the boundary.  The windows are not screened and overlook 160 Oxlade Drive and Kirribilli.  Third, Mr Richards says there are windows on levels 2 to 5 in the proposed development that enable views towards the Brisbane River that are over the private tennis court and outdoor recreation area of Kirribilli.  The Appellants complain that this results in unacceptable overlooking of the tennis court.
  3. [180]
    This is another instance where the Appellants’ submissions reveal that their expectations are unreasonable.  City Plan does not contemplate that land in the Medium density residential zone would be developed in a manner that would prevent any lines of sight to adjacent buildings and any overlooking of adjoining land.  To the contrary, it is apparent from the acceptable outcomes that privacy will be protected to an appropriate degree if development adopts identified placement and design measures.  Those measures include building separation as specified in Table 9.3.14.3.F of the Multiple dwelling code.  It is apparent from that Table that the extent of building separation considered acceptable varies at different levels of the building, with the minimum separation distance increasing for the higher levels of the building.  The minimum separation specified is also greater where there are facing habitable rooms or balconies as compared to that stipulated for that part of the building where there are habitable rooms or balconies facing non-habitable rooms or blank walls, or for that part of the building comprising non-habitable rooms or blank walls.[100]  The acceptable solutions also contemplate that appropriate visual privacy can be achieved by offsetting balconies and habitable rooms or through selective screening.[101] 
  4. [181]
    In forming his opinion that the privacy and overlooking impacts are unsatisfactory, Mr Richards appears to have ignored these matters.  These matters were considered by Mr Powell and Dr McGowan, whose evidence is consistent with details evident on the plans of the proposed development.
  5. [182]
    On the western side of the proposed development, adjacent 160 Oxlade Drive, the habitable rooms on levels 1 to 3 only have one side-facing window on each level.  They are located toward the rear of the proposed development and positioned to take in oblique views of Merthyr Park.  The central side-facing bedroom on level 4 only has one window.  It overlooks an inaccessible part of the 160 Oxlade Drive roof and does not overlook any habitable spaces.
  6. [183]
    In respect of the potential for overlooking to the east, towards Kirribilli, it is relevant to note that there is a substantial building separation of between 17 metres and 25 metres between the proposed development and the Kirribilli building.  This is, in part, informed by the location of a tennis court on the site of the Kirribilli building, between the proposed development and the Kirribilli building.  The closest part of the proposed development to the Kirribilli building (being that with a building separation of 17 metres) is a blank wall that is set back three metres from the boundary.  This setback is consistent with the applicable acceptable outcome.  Further, the view from the side-facing bedroom window on each of levels 1 to 4 is directed approximately four metres south of the southern-most corner of Kirribilli.
  7. [184]
    Having regard to those matters, I readily accept Mr Powell’s opinion that the placement and design of the proposed development is well-considered and does not result in any unreasonable overlooking to habitable rooms or balconies nor have an unacceptable impact on the privacy of residents of the adjoining buildings.
  8. [185]
    The Appellants’ complaint about overlooking of the tennis court is also unreasonable.  It is apparent from photographs taken from Merthyr Park that the tennis court on the Kirribilli site is readily visible to the public from Merthyr Park. 
  9. [186]
    For the reasons provided above, I am comfortably satisfied that the proposed development complies with the relevant assessment benchmarks with respect to amenity impacts insofar as they relate to privacy and overlooking.

Will the proposed development result in unacceptable overshadowing?

  1. [187]
    Reasonable amenity expectations with respect to overshadowing would be informed by the assessment benchmarks identified, and addressed, above.  As with privacy, when one reads City Plan it is not reasonable to expect that land in the Medium density residential zone would be developed in a manner that would prevent any impact. 
  2. [188]
    Despite maintaining an allegation that the proposed development will cause an unacceptable amenity impact by reason of overshadowing, the Appellants, through their Counsel Mr Ware, provided no written submissions to assist me with this issue.  In comparison, the Council, through Mr Yuen of Counsel, provided helpful submissions that succinctly addressed the pertinent evidence. 
  3. [189]
    Shadow diagrams were submitted as part of the development application.  They show the shadows cast by the proposed development.  They also depict the shadows that would be cast by a development of five storeys and 15 metres, which development would have been code assessable.  This assists to gauge the extent to which the shadow cast by the proposed built form is sensitive to the adopted built form parameters, such as height. 
  4. [190]
    The overall impact was addressed by Mr Richards and Mr Curtis in the Architecture Joint Experts’ Report. 
  5. [191]
    Mr Richards’ evidence on this issue was minimal.  He says that the proposed development will have greater shadow impact on Merthyr Park than a development that is lower in height.  This opinion is unremarkable, and of no assistance.
  6. [192]
    Mr Curtis reviewed the shadow diagrams and observes:
    1. (a)
      there is a minor increase in the extent of the shadow cast by the proposed development when compared to the alternative height “compliant” development in the winter and summer solstice and the autumn and spring equinox;
    2. (b)
      both the proposed development and the alternative height “compliant” development are shown to cast shadows in the late afternoon over the tennis court of Kirribilli; and
    3. (c)
      the shadows cast over Merthyr Park largely fall over the existing trees in the park, which trees already shadow the ground.  Furthermore, Kirribilli also casts a similar extent of shadows as the proposed development over Merthyr Park (as is evident in the shadow diagrams for the winter solstice 9 am and 12 pm).
  7. [193]
    Having regard to these matters, Mr Curtis opines that the shadow cast by the proposed development is unlikely to have any significant impact on the amenity of residents of adjoining buildings, for users of the tennis court on Kirribilli, or for members of the public enjoying Merthyr Park.
  8. [194]
    Mr Powell expresses similar opinions to that of Mr Curtis.  In support of his opinions, Mr Powell explains that shadows are generally shorter throughout the day and the consequences of impacts are at their lowest in mid-summer and during both equinoxes.  At this time, the overshadowing to neighbouring buildings appears to be similar to that which would be caused by a building that met the acceptable outcomes in terms of height and setbacks.  Further, Mr Powell says the time of year when shadows are generally at their longest and the impacts are potentially greatest is between 9 am and 3 pm mid-winter.  At that time, the shadows cast by the proposed development will likely avoid the faces of the neighbouring buildings at 160 Oxlade Drive and Kirribilli.  That part of the shadow that will extend beyond a shadow caused by a building compliant with acceptable outcomes for height and setback will predominantly impact on the open water of the Brisbane River.  Dr McGowan agrees with the opinions and analysis of Mr Powell.
  9. [195]
    I accept the evidence of Mr Curtis, Mr Powell, and Dr McGowan. 
  10. [196]
    For the reasons provided above, I am comfortably satisfied that the proposed development complies with the relevant assessment benchmarks with respect to amenity impacts insofar as they relate to overshadowing.  Considering the evidence available prior to the trial, the absence of submissions on the issue from the Appellants, and the evidence of Mr Richards and Mr Panozzo during cross-examination (wherein they conceded that the overshadowing impact would not be significant), it is difficult to understand why this issue has been maintained as a reason for refusal.

Will the proposed development incorporate appropriate landscaping?

  1. [197]
    It seems from the Updated List of Remaining Issues for Determination[102] that the Appellants allege that the height, bulk, and scale of the proposed development will not provide opportunities for adequate deep planting and other landscaping.  The Appellants’ submissions on this issue were brief.  They complain that the front boundary setback is insufficient to achieve a large tree like that out the front of Platinum.  Consequently, they say the proposed development does not meet acceptable outcome AO7.2 b.iii. of the Multiple dwelling code, which requires that the front boundary setback is a deep planting area.
  2. [198]
    The Appellants’ approach is flawed.  Failure to comply with an acceptable outcome does not, of itself, demonstrate a non-compliance with assessment benchmarks that warrants refusal.  Although I do not accept the validity of the Appellants’ approach to this issue, I will nevertheless consider whether the proposed development incorporates appropriate landscaping having regard to the relevant assessment benchmarks and the evidence.
  3. [199]
    One relevant assessment benchmark put in issue by the Appellants is the overall outcome in s 6.2.1.3 5.h. of the Medium density residential zone code.  It states:

“h. Development provides quality private and public open spaces and landscaping, including deep planting, which softens the scale of the dwellings, provides spaces for outdoor activity areas and encourages outdoor living.”

  1. [200]
    Guidance on landscaping and deep planting is also provided in performance outcomes PO7 and PO11 of the Multiple dwelling code.[103]  They require development to:
    1. (a)
      provide buildings that are reduced in bulk and form to provide a transitional built form of compatible scale which protects the amenity of lower density residential areas bordering medium and high density residential areas by, amongst other things, providing a heavily landscaped interface area; and
    2. (b)
      provide a side boundary setback that allows for the incorporation of landscaping.
  2. [201]
    The proposed development incorporates landscaping of 504.6 square metres (equating to 46 per cent of the area of the subject land).  That includes 146.1 square metres (or 13.3 per cent of the subject land) for deep planting.  Deep planting is proposed within the rear and side setbacks of the proposed development.
  3. [202]
    The area proposed to be dedicated to deep planting meets the minimum requirement of 10 per cent of the site area as required under acceptable outcome AO30.2 of the Multiple dwelling code. 
  4. [203]
    During his oral testimony, Mr Richards sought to cast doubt on the likelihood that this extent of deep planting would be achieved.  He suggested that the proposed deep planting within the side setback may not be achieved because of the basement for the building.  His opinion was premised on speculation that, when constructed, the basement walls might need to be thicker than those shown on the plans.  Mr Richards did not undertake any detailed assessment of this issue.  It is not clear that he holds the necessary qualifications to do so.  His attempt to raise the issue suggests a lack of impartiality on his part, particularly having regard to condition 21 of the development permit originally granted by the Council and accepted by Azure Development Group without challenge.  Condition 21 requires:

“Deep planting areas as shown on the approved drawings, open to sky and with no underground development including retaining wall footings.

Canopy tree species capable of growing to a mature size that will be complementary in scale and height to the building form, or respond to the size and location of the deep planting area/s.”

  1. [204]
    This condition is consistent with the requirements in performance outcome PO30 of the Multiple dwelling code.  That performance outcome deals specifically with deep planting, whereas performance outcome PO7 deals with landscaping as part of an outcome designed to protect amenity of lower density residential areas bordering medium density residential areas.  
  2. [205]
    In addition to the identified deep planting, the proposed development provides landscaping in the front setback and in planter boxes at each level of the building.
  3. [206]
    The landscaping spaces within the front setback include opportunities for tree planting.  Both Mr Curtis and Dr McGowan opine that the 1.5-metre-deep raised planter box will be able to accommodate medium sized trees. 
  4. [207]
    In terms of the visual impact of the landscaping, Mr Curtis opines that the extent and location of the landscaping for the proposed development contributes to the landscape amenity of the setting and the cohesiveness of the built form’s integration into the local area.[104]  He says it will provide an appropriate interface with Oxlade Drive and Merthyr Park.  In the Architecture Joint Experts’ Report, he provides detailed and cogent explanations for his opinion.
  5. [208]
    Dr McGowan opines that the landscaping in the planter boxes, together with the existing street trees, will soften the building’s interface with the streetscape and will integrate the built form.  He says it will make a positive contribution to the appearance of the streetscape.[105]
  6. [209]
    I accept the evidence of Mr Curtis and Dr McGowan with respect to the adequacy of the landscaping.  Their evidence is consistent with the photomontages. 
  7. [210]
    For the reasons provided above, I am satisfied that the landscaping within the front setback will make an appropriate contribution to the streetscape and will appropriately protect the amenity of those nearby, including those in the lower density residential areas on the northern side of Oxlade Drive.  I am also satisfied that the proposed development provides adequate landscaping and deep planting overall, and in those respects, complies with the overall outcome in s 6.2.1.3 5.h. of the Medium density residential zone code and performance outcomes PO7 and PO11 of the Multiple dwelling code.

Does the proposed development comply with the overall outcomes for the Medium density living precinct of the neighbourhood plan?

  1. [211]
    The overall outcomes for the Medium density living precinct in s 7.2.14.1.2 6 of the New Farm and Teneriffe Hill neighbourhood plan code include:

“a. This precinct is predominantly medium density, taking advantage of the benefits of high levels of accessibility and visual amenity that characterise this area.

b. Development provides visual and physical links to the river.”

  1. [212]
    The Appellants allege non-compliance with each of these provisions.  They make the following submissions:

“104. It is submitted that if medium density is related only to population per area, as the town planners have assumed it is, then this OO(6)(a) outcome is met. Given there is not necessarily a relationship between density on the one hand and height, bulk and scale on the other (a very low density development could have a very large height, bulk and scale), it is submitted this is not a basis for exceeding community expectations of 5 levels and 15 metres.

  1. However, if it is read together with PO8, there appears to be a bulk and size aspect included in “medium density” when used in this context. It is submitted this is the appropriate interpretation to enable a harmonious reading of these provisions. In that event, medium density nature involves development up to 5 storeys in accordance with the MDC Code provisions. The proposal does not meet this benchmark.
  1. The proposed development does not provide visual and physical links to the river for the public. Accordingly, OO(6)(b) is not met.”[106]
  1. [213]
    As is apparent from these submissions, the Appellants position with respect to overall outcome 6.a. is premised on its assertion that “medium density” is to be understood as importing a limitation of development up to 5 storeys. 
  2. [214]
    The Court of Appeal confirmed in AAD Design Pty Ltd v Brisbane City Council[107] and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd[108] that the established principles and canons of statutory construction apply to the construction of planning documents.  In AAD Design Pty Ltd v Brisbane City Council,[109] Chesterman JA observed that it is not unduly pedantic to begin with an assumption that words mean what they say.  As the High Court has re-iterated on numerous occasions, the starting point for ascertaining the meaning of a statutory provision is the text of the provision considered in light of its context and purpose.[110] 
  3. [215]
    The context to which the Appellants refer with respect to the meaning of overall outcome 6.a. is that provided by performance outcome PO8 of the New Farm and Teneriffe Hill neighbourhood plan code.  It, and the related acceptable outcome, states:

PO8

Development ensures building size and bulk is consistent with the medium density nature of the locality and retains an appropriate residential scale and relationship with other precincts in the neighbourhood plan area.

AO8

Development has a maximum gross floor area equal to the area of the site.

  1. [216]
    There are three relevant observations that can be made about these provisions.  Each tell against the construction urged by the Appellants. 
  2. [217]
    First, neither performance outcome PO8 nor acceptable outcome AO8 contains a height limit.  If the drafters had intended “medium density” to be construed as development no more than five storeys in height, it would have been simple to include such a constraint in either of these provisions.  The only provision of the New Farm and Teneriffe Hill neighbourhood plan code that contains such a constraint is acceptable outcome AO7.  However, the related performance outcome (PO7) focusses on maintenance of views, not the density of the development.
  3. [218]
    Second, performance outcome PO8 must be construed in the context of acceptable outcome AO8.  That acceptable outcome indicates that an acceptable means of achieving a medium density development is by providing development that has a maximum gross floor area equal to the area of the site.  This type of control is consistent with the ordinary construction of the term “medium density”, being a parameter concerned with the density of population to be accommodated.
  4. [219]
    Third, performance outcome PO8 contains two substantive requirements.  One is that the building bulk and size is consistent with the medium density nature of the locality.  The second requires the retention of an appropriate residential scale and relationship with other precincts.  In concert, these requirements ensure that, to the extent that a taller building might be considered of an appropriate residential scale, its bulk is otherwise adjusted (for example by having a small footprint) so that the overall population density is consistent with the medium density nature of the locality.  These requirements do not support the Appellants’ submission about an implied limitation of five storeys.
  5. [220]
    Having regard to those matters, I do not accept the Appellants’ submissions.  The text of overall outcome 6.a., read in its context, does not indicate that “medium density development” should be read as limiting development to that which is no more than five storeys in height. 
  6. [221]
    I am satisfied that the evidence establishes that the proposed development is medium density.  While Mr Richards opines that the proposed development is high density development, his opinion is founded on the implied five storey height limitation.  As such, I do not accept his evidence.  The density of the development was also the subject of evidence from all three town planners.  They are each well qualified to express an opinion about the density of the development.  They all agree that the proposed development is a medium density development.  Their evidence on this issue was not challenged and I accept it.
  7. [222]
    Further, even if I am wrong about the proper construction of overall outcome 6.a of the New Farm and Teneriffe Hill neighbourhood plan code, the error is immaterial to the outcome.  There is, nevertheless, compliance with this overall outcome as the proposed development is not such as to prevent the achievement of a predominance of medium density development in the Medium density living precinct.
  1. [223]
    The Appellants’ submissions about overall outcome 6.b. of the New Farm and Teneriffe Hill neighbourhood plan code are brief.  Their allegation of non-compliance is premised on visual and physical links to the river “for the public”.  These words do not appear in the overall outcome.  The Appellants do not articulate the basis on which the provision should be given a meaning other than its ordinary meaning. 
  1. [224]
    Further, the context in which the provision appears does not support the Appellants’ construction.  It is apparent from overall outcome 6.c. that when the drafters intend that there be public access, they say so.  That outcome also applies to the Medium density living precinct and requires that:

“New developments north of Merthyr Road retain areas along the river frontage for public access.”

(emphasis added)

  1. [225]
    I accept the evidence of Mr Schomburgk that the design of each of the units in the proposed development provides open areas facing the river, and that there is a pathway proposed along the western side of the building that provides a physical connection to Merthyr Park and the river beyond.  His evidence is consistent with what can be observed on the plans. 
  1. [226]
    For the reasons provided above, I am satisfied that the proposed development complies with the overall outcomes in s 7.2.14.1.2 6.a. and b. of the New Farm and Teneriffe Hill neighbourhood plan code.

Conclusion regarding assessment against the relevant assessment benchmarks

  1. [227]
    It is incontrovertible that the proposed development exceeds the five storeys encouraged in ss 6.2.1.3 4.a and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h. of the Multiple dwelling code.  At first blush, the exceedance of that quantitative standard might suggest that the proposed development is an over development of the subject land.  It certainly highlights the need to scrutinise the details of what is proposed with care.  That is made clear by the fact that, at six storeys, the proposed development requires impact assessment, not just code assessment. 
  2. [228]
    It will be apparent from my analysis above that, having carefully considered the details of the proposed development, I am satisfied that the proposed development complies with the relevant assessment benchmarks identified by the parties.  Further, even if a development of six storeys should properly be regarded as resulting in a degree of non-compliance, I do not regard it to be such as to warrant refusal in this case.  This is because the exceedance of the quantitative standard encouraged in City Plan does not give rise to any unacceptable impacts.  The proposed development achieves the underlying planning goals that inform the encouragement of a five-storey standard.  In those circumstances, and in the absence of any allegation of relevant matters that support refusal, I am satisfied that the exercise of the broad discretion favours approval of the proposed development.

Are there relevant matters that support approval?

  1. [229]
    Azure Development Group raise five matters that they say are relevant matters that favour an approval of the proposed development.  They are:
    1. (a)
      the high quality of the proposed development, including the qualities of the subject land;
    2. (b)
      the compliance of the proposed development with the provisions of City Plan that call for qualitative outcomes;
    3. (c)
      the absence of any unacceptable amenity impact for the local community and surrounding residents caused by the proposed development;
    4. (d)
      the achievement of outcomes sought by the South East Queensland Regional Plan with respect to increased densities and housing choice; and
    5. (e)
      the existence of an economic need for the development.
  2. [230]
    Each of these factors are relevant matters for the purpose of assessing the application under s 45(5)(b) of the Planning Act 2016.  The issue is whether they have been established on the evidence and, if so, how they inform the exercise of the discretion.
  3. [231]
    Considering my findings with respect to an assessment of the proposed development against the assessment benchmarks, and the conclusion I express in paragraph [228] above, it is unnecessary for me to deal at length with each of the relevant matters.  It is sufficient to make four observations.
  4. [232]
    First, I am satisfied that the relevant matters referred to in paragraphs [229](a) to [229](c) are established on the evidence.  In that respect, the evidence of Mr Schomburgk[111] and Ms Morrissy[112] satisfies me that, although the proposed development is greater than five storeys, there is a high level of compliance with the overall outcomes of the Medium density residential zone code with respect to location, use and development form.  Ms Morrissy provides a convenient summary of the opinions expressed by Mr Schomburgk and herself, which evidence I accept.  Relevantly, Ms Morrissy says:
    1. (a)
      the subject land is well located to accommodate medium density multiple dwellings as New Farm is an inner-city suburb well serviced by public transport, with convenient, walkable access to a range of services, facilities and recreational and lifestyle opportunities;
    2. (b)
      the proposed development contributes to urban consolidation and neighbourhood walkability;
    3. (c)
      as a medium density dwelling, the proposed development would provide a level of amenity reasonably expected in a medium density residential environment.  Matters of privacy, safety and comfort (including shadowing) have been considered, assessed, and responded to through siting and design;
    4. (d)
      the proposed development incorporates a variety of communal open spaces, private open spaces and landscape areas that are functional, encourage outdoor living and aesthetically complement the design of the multiple dwelling; and
    5. (e)
      the design of the proposed development includes opportunities for surveillance over public spaces and ground level activity given the presence of a ground level unit and communal open space.
  5. [233]
    These are considerations that, to an extent, inform the assessment of the proposed development against the assessment benchmarks.  They are also relevant matters that favour approval of the proposed development.  Having regard to the evidence of Mr Curtis, Mr Powell and Dr McGowan referred to above, I am satisfied that the proposed development delivers a better outcome than the bare minimum that would be delivered were the development to adhere to the acceptable solutions.
  6. [234]
    Second, although I do not consider the failure to limit the proposed development to “medium rise” (or no more than five storeys in height were it properly so characterised) results in a non-compliance with the assessment benchmarks.  I agree with Ms Morrissy that such a non-compliance would not warrant refusal in any event.  Ms Morrissy’s opinion in that regard is founded on five matters, each of which have been established on the evidence.  They are that the proposed development:
    1. (a)
      achieves a high level of compliance with other applicable zone code provisions;
    2. (b)
      will provide a high-quality design outcome;
    3. (c)
      is appropriate having regard to the locational context, which includes a range of building heights of various designs and ages;
    4. (d)
      will provide a successful design response in the zone (in the immediate local area) by providing a transition or step-down or up to existing legacy high-rise buildings on Oxlade Drive.  This approach has been adopted, is apparent and does not result in adverse amenity or character impacts to streetscape or local identity; and
    5. (e)
      deviates from the quantifiable height provision to an extent that would not result in a dramatic difference or variance to character or amenity outcomes in the area.
  7. [235]
    The above considerations are weighty matters that favour approval of the proposed development.
  8. [236]
    Third, I am satisfied that the relevant matter referred to in paragraph [229](d) is established on the evidence.  In this respect, I accept the opinion of Mr Schomburgk that approval of the proposed development would achieve outcomes sought by the South East Queensland Regional Plan.  It does so by providing increased density of development close to infrastructure and services, housing choice and diversity and housing described in the South East Queensland Regional Plan as the “missing middle”.  I do not consider this to be a particularly weighty consideration, but it favours approval, nevertheless.
  9. [237]
    Fourth, I am satisfied that the relevant matter referred to in paragraph [229](e) is established on the evidence, and that it supports approval.  The general principles that inform and guide an assessment of need are well settled.  They are conveniently summarised by His Honour Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council & Anor.[113] 
  10. [238]
    With respect to this matter, I was assisted by the evidence of Mr Stephens, the economist retained by Azure Development Group, and Mr Caulfield, the director of Place Estate Agents in Kangaroo Point, who specialises in sales and marketing of high-end luxury residential apartments in inner city Brisbane, particularly Kangaroo Point and New Farm.  Their uncontested evidence persuades me that the proposed development will address a latent demand for premium apartments at New Farm.  The greater than standard ceiling heights adopted in the design of the proposed development is an important attribute for the luxury market.  Further, I accept the evidence of Mr Caulfield that the segment of the luxury market attracted to riverfront property at New Farm does not regard other riverside suburbs to be comparable alternatives.  I accept the evidence of Mr Stephens that the subject land has locational attributes suited to a premium buyer market that are not easily replicated elsewhere.  Although this represents only a small segment of the market, it is nevertheless a distinct and recognisable segment.
  11. [239]
    The Appellants submit that this need could be met by a compliant development.  This submission assumes that the public interest embodied in a planning scheme is capable of being quantified by analysing the benefits and dis-benefits of a particular hypothetical development that delivers on identified standards, such as height parameters and setbacks, so that it can then be weighed against the public interest associated with the proposed development.  Further, the allegation is founded on an assumption that, in the event of a refusal, Azure Development Group will choose to develop the subject land with the same standard of finishes and architectural treatments but in a building with a footprint that accords with all applicable acceptable outcomes. 
  12. [240]
    The Appellants’ submission ignores the reality that, in assessing the acceptability of the proposed development, and whether there is a need for it, a local government is not presented with a binary choice between a non-compliant development and an alternative compliant development.  Planning schemes do not advance a particular design option or solution for a particular site.  They also do not compel development to proceed.  If a developer seeks to pursue development of a parcel of land, planning schemes articulate planning goals and stipulate controls that guide the parameters of the development in performance-based terms.

Should the development application be approved in the exercise of the planning discretion?

  1. [241]
    Whether an approval is, or is not, in the public interest is a question of fact to be determined in the exercise of the planning discretion.  The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016.  Not every non-compliance is contrary to public interest or will warrant refusal.  The extent to which a flexible approach will prevail in the face of any given non-compliance with an assessment benchmark will turn on the facts and circumstances of each case, which includes a consideration of the “relevant matters”.
  2. [242]
    Here, the Appellants contend that, in the exercise of the discretion, the proposed development should be refused for six reasons.
  3. [243]
    First, the proposed development exceeds the acceptable outcomes within City Plan in relation to height (both in metres and storeys), plot ratio, site coverage, front setbacks, side setbacks and rear setbacks.  They say that although that does not in itself result in non-compliance, it is an indicator that the scale of the proposed development is an overdevelopment of the subject land.
  4. [244]
    Second, the Appellants say the overdevelopment of the subject land has consequences.  It has significant adverse impacts on the views of the residents of Kirribilli and the character of the locality.
  5. [245]
    Third, the Appellants say the proposed development is not consistent with community expectations.
  6. [246]
    Fourth, the Appellants assert there is no community or economic need for that part of the proposed development that exceeds community expectations, which they say is an additional three apartments.  The Appellants say any need identified is also met by a compliant development.
  7. [247]
    Fifth, the Appellants contend that any architectural merit attributable to the proposed development cannot disguise the excessive height, bulk, and scale of the proposed development.  It is still a bulky building and a building which exceeds community expectations for a building on the subject land.
  8. [248]
    Sixth, the Appellants allege that Azure Development Group and the Council rely heavily on the transition or gradation in height they assert is provided by this building between the adjacent Kirribilli (with its height of 11 storeys) and 160 Oxlade Drive (at five storeys in height).  With respect to that issue, the Appellants say there is no provision in the planning scheme which requires such a gradation, nor is gradation part of the character of the existing locality.
  9. [249]
    As would be apparent from the reasons I have provided above, I do not accept any of these allegations. 
  10. [250]
    I am satisfied that, in the circumstances of this case, a balanced decision in the public interest favours approval of the proposed development.

Conclusion

  1. [251]
    Azure Development Group has discharged its onus. 
  2. [252]
    My orders will be as follows:
  1. Appeals numbered 1747 of 2020, 1749 of 2020 and 1750 of 2020 are dismissed.
  1. The decision of Brisbane City Council notified by the decision notice addressed to Azure Development Group Pty Ltd dated 22 May 2020 is confirmed.

Footnotes

[1] Planning and Environment Court Act 2016 s 47.

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

[3] Planning and Environment Court Act 2016 s 45.

[4] Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).

[5] Planning Act 2016 ss 45(5) and 59.

[6]It is common ground that version 16 of Brisbane City Plan 2014 was the categorising instrument for the development in effect when the development application was properly made. 

[7] Planning Regulation 2017 (Qld) s 31 and sch 24.

[8][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[9][2020] QCA 253.

[10][2020] QCA 257.

[11][2020] QCA 273.

[12][2021] QCA 95.

[13][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

[14] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804‑6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]‑[14].

[15] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 806 [51].

[16] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [42], [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [77].

[17][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[18][2020] QCA 257.

[19]Section 16 of the Planning Act 2016.

[20] Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, 1033 [26].

[21] Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139-40.

[22] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, [60] citing Hua Sheng Co Pty Ltd v Brisbane City Council [1991] QPLR 99, 102.

[23] Smout v Brisbane City Council [2019] QPEC 10; [2019] QPELR 684, [54].

[24] Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 336-7 [20]‑[22] (emphasis added, original citations).

[25]See Exhibits 28A and 28B.

[26]City Plan s 6.1 1.

[27]The impact assessable uses include “any use listed in this table and not meeting the description listed in the ‘Categories of development and assessment column’”.

[28]City Plan s 6.2.1.3 1.

[29]It is not necessary for me to determine whether “medium rise” should be read as limited to development that is three to five storeys in height for the reasons provided in paragraphs [33] and [42] to [57] below.

[30]A slightly different approach to the meaning was adopted by His Honour Judge Robertson in Norfolk Estates Pty Ltd v Brisbane City Council & Anor [2016] QPEC 9; [2016] QPELR 285, 298 [46].  I accept that the construction adopted by His Honour is also open.  Ultimately, the proper construction of the provision is not determinative to the outcome of this appeal for reasons that will become apparent.

[31]City Plan s 6.2.1.4 4.a.

[32]City Plan s 6.2.1.4 6.a.

[33]City Plan s 6.2.1.1 4.a.

[34]City Plan s 6.2.1.2 6.a.

[35]City Plan s 6.2.1.2 6.b.i.

[36]City Plan s 6.2.1.2 7.a.

[37]City Plan s 6.2.1.2 7.b.i.

[38]City Plan s 6.2.1.2 8.a.

[39]City Plan s 6.2.1.2 8.b.i.

[40]cf City Plan s 6.2.1.2 8.b.i. which states, “Development of low-medium rise, medium density residential buildings are predominantly (but no more than) 3 storeys in height”. (emphasis added)

[41]City Plan s 7.1 1.

[42]City Plan s 7.2.14.1.2 1.

[43]City Plan s 7.2.14.1.2 2.

[44]That a non-compliance only arises if it follows as a matter or implication or inference having regard to the relevant context of the planning scheme is an approach to interpretation of a planning scheme that was endorsed by the Court of Appeal in Wilhelm v Logan City Council & Ors [2020] QCA 273, at [38], [39], [62]-[75]. 

[45]See, for example, City Plan s 6.2.1.2 8.b.i. which states, “Development of low-medium rise, medium density residential buildings are predominantly (but no more than) 3 storeys in height”. (emphasis added)

[46][2019] QPEC 66; [2020] QPELR 877, 884 [27].

[47][2021] QCA 95.

[48] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [110] with reference to WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 at [35]-[38] per Fryber J with whom McMurdo P and Atkinson J agreed; and Bell v Brisbane City Council [2018] QCA 84; (2018) 230 LGERA 374 at [20] and [70] per McMurdo JA with whom Sofronoff P and Philippides JA agreed.

[49]See, for example, City Plan s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code.

[50]This finding is consistent with findings made by His Honour Judge Robertson in Norfolk Estates Pty Ltd v Brisbane City Council & Anor [2016] QPEC 9; [2016] QPELR 285 at 293 [26]-[29] with respect to the same provisions (with only slight differences in the wording).

[51] Development Watch & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 256 [231] citing The Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56].

[52][2019] QPEC 67; [2020] QPELR 899.

[53]As was considered in Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QPELR 354; [2011] QCA 358 and Gillion Pty Ltd v Scenic Rim Regional Council [2014] QPELR 168; [2014] QCA 21.

[54] Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, 928 [167] (original citations).  His Honour’s observations were considered by the Court of Appeal in Wilhelm v Logan City Council & Ors [2020] QCA 273.  The Court of Appeal dismissed the application for leave to appeal, including on the basis that there was no error in the primary judge’s interpretation of the planning scheme: Wilhelm v Logan City Council & Ors [2020] QCA 273, [38], [39], [62]‑[75] per Mullins JA.

[55]City Plan s 3.1.

[56]City Plan s 3.4.1 1.b.

[57]City Plan s 3.4.1 1.i.

[58]Exhibit 7 Architecture Joint Experts’ Report p 16 [16]-[20].

[59]Glenfalloch was completed in 1962.

[60]The site inspection that I conducted of the area with the representatives for the parties on the first day of the hearing does not form part of the evidence.  However, it assisted me to appreciate the evidence contained in the photographs and descriptions of the locality given by the experts.

[61] Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42; [2016] QPELR 784, 794 [29] citing Leach v Brisbane City Council [2011] QPEC 55; [2011] QPELR 609, [34].

[62] Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62; [2017] QPELR 49, 54 [21] citing Ken Ryan & Associates Pty Ltd v Brisbane City Council [2007] QPEC 93; [2008] QPELR 147, 150 [20].

[63]This approach was adopted in Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42; [2016] QPELR 784, 794 [31] citing Lonie v Brisbane City Council [1998] QPELR 209, 212.  The test was cited for the purpose of assessing streetscape character and whether a street had traditional character, but I consider it a helpful approach to the assessment of streetscape character generally.

[64]See the overall outcomes in ss 6.2.1.3 4.a., 5.a., c., d. and e. of the Medium density residential zone code; the overall outcomes in ss 7.2.14.1.2 3.b, f. and m. and performance outcomes PO1, PO7, PO8 and PO10 of the New Farm and Teneriffe Hill neighbourhood plan code; and the overall outcomes in ss 9.3.14.2 2.e., h. and j. and performance outcomes PO5, PO6, PO7, PO9 and PO11 of the Multiple dwelling code.

[65]City Plan s 7.2.14.1.2 3.a.

[66]See the comparison in paragraphs 27 to 31 of the Written Submissions on behalf of the Appellants.

[67]Transcript of Proceedings, McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 1747/20, 1749/20 and 1750/20, Kefford DCJ, 9 February 2021) 56.

[68]Transcript of Proceedings, McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 1747/20, 1749/20 and 1750/20, Kefford DCJ, 9 February 2021) 39-44 and 55-6.

[69]Exhibit 7 Architecture Joint Experts’ Report pp 37 – 50.

[70]Transcript of Proceedings, McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 1747/20, 1749/20 and 1750/20, Kefford DCJ, 11 February 2021) 58.

[71]Joint Experts Report – Town Planning p 6 [17].

[72]The top floor is stepped in from the western wall.  This is an approximate calculation made by reference to Mr Richards’ evidence that the floor-to-floor heights of Kirribilli are 2.7 metres.

[73]Exhibit 5 Book of Plans.

[74]Exhibit 5 Book of Plans.

[75]Exhibit 5 Book of Plans.

[76]Joint Experts Report – Town Planning p 6 [17].

[77]Joint Experts Report – Town Planning p 6 [17].

[78]See, for example, Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, 276 [21]; Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, 569 [23]; and Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, 1060 [162].

[79]Exhibit 5 p 1.

[80]City Plan s 7.2.14.1.2 6.a.

[81]See paragraphs [9] to [11] above.

[82]See paragraphs [42] to [57] above.

[83]See the approach to construction adopted in Wilhelm v Logan City Council & Ors [2020] QCA 273, [38], [39], [62]-[75].  A similar approach is warranted here.

[84]See paragraph [43] above.

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

[86][2014] QPEC 47; [2015] QPELR 21.

[87] Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, 45 [96].

[88][2007] QPEC 112; [2008] QPELR 342.

[89] Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40] (emphasis added, footnotes omitted).

[90]See the extract at paragraph [28] above.

[91]See the extract at paragraph [38] above.

[92]Revised Third Edition.

[93]City Plan contemplates reference to the ordinary meaning where the term is not otherwise defined in the Planning Act 2016, the Planning Regulation 2017, the definitions in City Plan, and the Acts Interpretation Act 1954 (Qld) – see City Plan s 1.3.1.

[94][2008] QPEC 45; [2009] QPELR 35.

[95] Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors [2008] QPEC 45; [2009] QPELR 35, 40 [15].

[96] Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors [2008] QPEC 45; [2009] QPELR 35, 54 [44].

[97]See paragraph [110] above.

[98]See the extract at paragraph [38] above.

[99]See the extract at paragraph [40] above.

[100]See, for example, acceptable outcome AO5 of the Multiple dwelling code.

[101]See, for example, acceptable outcomes AO8.1 and AO8.2 (and associated notes) of the Multiple dwelling code.

[102]Exhibit 28B.

[103]See the extract at paragraph [40] above.

[104]See paragraph [103] above for further detail of his evidence.

[105]Transcript of Proceedings, McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 1747/20, 1749/20 and 1750/20, Kefford DCJ, 8 February 2021) 57.

[106]Written submissions on behalf of the Appellants, amended to reflect the correction recorded in Transcript of Proceedings, McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 1747/20, 1749/20 and 1750/20, Kefford DCJ, 12 February 2021) 47.

[107][2012] QCA 44; [2013] 1 Qd R 1.

[108][2014] QCA 147; [2014] QPELR 686, 698 [52].

[109][2012] QCA 44; [2013] 1 Qd R 1, 11-2 [37]. 

[110]See, for example, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20].

[111]Exhibit 9 Joint Town Planning Report pp 62-4 [256] and Exhibit 10 p 5 [25].

[112]Exhibit 9 Joint Town Planning Report p 64 [257] and Exhibit 16 p 4 [3.0.2].

[113][2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

Close

Editorial Notes

  • Published Case Name:

    McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor

  • Shortened Case Name:

    McKay v Brisbane City Council

  • MNC:

    [2021] QPEC 42

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    23 Aug 2021

Appeal Status

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