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Cox v Brisbane City Council[2022] QPEC 10

Cox v Brisbane City Council[2022] QPEC 10

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cox v Brisbane City Council & Anor [2022] QPEC 10

PARTIES:

TIM ERIC COX

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

And

ALBION TOD PTY LTD (ACN 602 944 212)

(co-respondent)

FILE NO:

3333 of 2020

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitter appeal against approval

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

24 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15, 16, 17 and 18 February 2022, with supplementary written submissions delivered 22 February 2022

JUDGE:

Williamson QC DCJ

ORDER:

Orders made in accordance with paragraph [203]

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against a decision to grant a preliminary approval for a material change of use and variations to the respondent’s planning scheme for a transit orientated development – whether proposed land uses are acceptable – whether the proposed building envelope parameters are acceptable – whether there is a need for the proposed development – whether the respondent’s planning scheme ought be varied.

LEGISLATION:

Planning Act 2016, ss 43, 45, 50, 59, 60 and 61

Planning and Environment Court Act 2016, ss 43 and 45

CASES:

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

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

Grosser & Anor v Council of the City of Gold Coast (2001) 117 LGERA 153

Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350

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

COUNSEL:

Mr D Purcell for the appellant

Mr J Ware for the respondent

Mr B Job QC and Mr K Wylie for the co-respondent

SOLICITORS:

Mills Oakley for the appellant

City Legal for the respondent

Connor O'Meara for the co-respondent

Introduction

  1. [1]
    This is a submitter appeal against the decision of a Council delegate to approve a development application for a preliminary approval for a material change of use and an associated variation request. The land to which the decision relates is 2.5 ha in size and sleeves the eastern and western sides of the Albion train station and associated rail corridor (the land). 
  2. [2]
    The land is under the control of Queensland Rail. It is no longer required for transport (rail) purposes and is to be given over to urban development.  The development application before the Court seeks approval to establish a master planning framework for this purpose.  The framework is articulated in a Structure plan and draft conditions. In combination, they seek to facilitate the development of the land with transit orientated development in four precincts, numbered 2 to 5.[1]
  3. [3]
    The appellant does not suggest the development application, to the extent it facilitates development in precincts 3 and 5 of the Structure plan, should be refused.  At the end of the hearing, the appellant’s opposition to the development was limited to the material change of use proposed in precincts 2 and 4, and the associated variations.  He contends this part of the development, and the associated variations, ought be refused because:
  1. (a)
    Council’s planning scheme, City Plan 2014, does not contemplate the uses proposed in precincts 2 and 4 at the scale, form and intensity proposed;
  2. (b)
    the development proposed in precincts 2 and 4 will give rise to unacceptable impacts on character and amenity;
  3. (c)
    there is no compelling town planning, community or economic need to justify the increase in scale, form and intensity over and above that contemplated by City Plan 2014; and
  4. (d)
    the variations proposed to City Plan 2014 would unacceptably affect the rights of submitters with respect to future development applications.
  1. [4]
    Council and the co-respondent join issue with the reasons for refusal.  They do however accept the development is inconsistent with particular parts of City Plan 2014,[2] and advance a number of relevant matters said to be supportive of an approval. One such matter includes a contention that the zoning of the land has been overtaken by events. That the zoning has been overtaken by events was conceded by Counsel for the appellant.[3]
  2. [5]
    The appeal is a hearing anew.[4]
  3. [6]
    The co-respondent bears the onus in the appeal.[5]

The land and surrounding locality

  1. [7]
    The land is located about five kilometres from the central business district of Brisbane.  It comprises 19 lots, which are not contiguous.  The lots sleeve the eastern and western sides of the rail corridor at Albion.  The outside edges of the land are framed by the Albion Overpass, McDonald Street, Mawarra Street, Bridge Street, a rail overpass connecting Bridge Street and Hudson Road, and Hudson Road.
  2. [8]
    On the eastern side of the rail corridor, the land comprises a mix of vacant lots and lots improved with industrial buildings and car parking associated with the rail infrastructure.  Photographs included in the Architectural, Visual amenity and Landscaping Joint Report[6] (AVLJR) confirm the land to the east of the rail corridor has, in character and visual amenity terms, an identifiable connection with the adjoining infrastructure.
  3. [9]
    On the western side of the rail corridor, the land is primarily unimproved and utilised for on-grade car parking to service the Albion railway station.  Two of the lots are improved with dwelling houses.  The amenity enjoyed by those dwellings is affected by their proximity to the rail corridor and associated infrastructure.  Figures 4 to 14 of the AVLJR are photographs of the land located to the west of the rail corridor.  The photographs confirm, in character and amenity terms, that the land (save for the two dwellings) has an identifiable connection with the adjoining rail infrastructure corridor.  
  4. [10]
    Photographs contained in the AVLJR reveal the land falls north to south, and the eastern side of the rail corridor is more elevated than the western side.  The difference in east-west elevation is accommodated by a large retaining wall within the rail corridor.  This wall, in combination with the change in elevation and presence of rail infrastructure, creates a distinctive physical barrier.  The barrier restricts connectivity from east to west.  The barrier creates a hard edge which is unmistakably associated with the rail infrastructure corridor. It is a hard edge that is different in character to the surrounding area.
  5. [11]
    Turning to the surrounding area, the Albion Overpass is located to the immediate south of the land.  It is a large concrete structure suspended about 11 to 12 metres above the land.[7]
  6. [12]
    To the west of the land is Mawarra Street, which extends north from Albion Road and transitions to become Bridge Street.  The road runs parallel to the rail corridor and is about 20 metres in width.  Mawarra Street, and its transition to Bridge Street, is a one-way street for north-bound vehicles.  The balance of the road, on its eastern side, is a dedicated two-way cycle path.  A continuous row of established street trees is located within the verge between the land and the cycle path.  The trees make a positive contribution to the amenity of the streetscape and provide a partial screen to the rail infrastructure and associated corridor. 
  7. [13]
    Further to the west of Mawarra Street is a low-density residential area comprising, primarily, one to two storey character dwellings.  Two commercial character buildings are also located on the western edge of this area along Mawarra Street.  They sit directly across from the land.  Figures 27 to 35 of the AVLJR confirm the area west of Mawarra Street is low density residential in nature, with a predominance of character dwellings.
  8. [14]
    Figures 27 to 35 of the AVLJR confirm that development to the west of the land has a view of the rail corridor and associated infrastructure.  The same development also has a view of a number of high rise towers located to the east of the rail corridor.  This view is partially screened by the rail corridor.
  9. [15]
    To the north of the land is an overpass for pedestrians and vehicles.  It connects Hudson Road and Bridge Street.[8]  The edges of the overpass are fenced, creating a visual barrier to the rail corridor beneath.
  10. [16]
    The character of the area to the east of the land is mixed.
  11. [17]
    The land adjoins Hudson Road to the east, which is a two-way carriageway varying in width up to 20 metres.  At the northern end of the land, multiple dwellings can be seen on Hudson Road.  They vary in age and architecture.  The area further to the east of Hudson Road is elevated.  It is characterised by a mix of detached one and two storey dwellings, two to three storey multiple dwellings and two storey character dwellings. 
  12. [18]
    The south-eastern end of the land adjoins the Albion District Centre.  This centre is bounded by Birkbeck Street to the north, Anstey Street to the east and the Albion Overpass to the south.  Recent development activity confirms the centre is in a state of transition.  It is transitioning to substantially greater development intensity and scale.  There is a reasonable expectation that future intensification and urban renewal will occur in close proximity to the land.  In this regard, a large site on the eastern side of Hudson Road, and adjoining the land, has an approval for a dual 20-storey tower development.  To the south of the site the subject of the 20-storey approval is an existing 16-storey tower known as ‘The Hudson’.  Adjoining The Hudson is precinct 1 of the rail corridor to be given over to urban development.  Precinct 1 does not form part of the application before this Court.  It has the benefit of a development approval that authorises a dual 20-storey tower development.  This development also includes a four-storey component, which will facilitate an east-west link across the rail corridor.  Precinct 2 of the proposed development adjoins the southern edge of precinct 1.
  13. [19]
    Figures 52 to 57 of the AVLJR reveal The Hudson is a visually dominant building in the Albion District Centre when viewed from the area to the west of the rail corridor, and from within the centre itself.  The dominance of the tower when viewed from the west is, in part, a product of its height and the change in elevation referred to in paragraph [10].  The visual dominance of the building will be diminished if development facilitated by recent approvals is constructed.  If the approved development is constructed, The Hudson will be one of a number of high-rise/high-density towers in the centre. 
  14. [20]
    The character of the Albion District Centre is not limited to high-rise/high-density development.  The centre includes mid-rise commercial buildings six storeys in height.  It also includes an existing strip shopping component, which is now dated in appearance.  The rail corridor provides a distinctive edge to the centre.  The edge is relieved, marginally, by the existing access to the Albion train station platform.[9]

The proposed material change of use and variation request

  1. [21]
    The development application before the Court is impact assessable and comprises two parts, namely:
    1. (a)
      an application for a preliminary approval for a material change of use (food and drink outlet, market, multiple dwelling, office, parking station, retirement facility, shop and short-term accommodation), generally in accordance with seven plans comprising the Albion Exchange Structure Plan;[10] and
    2. (b)
      a request to vary provisions of City Plan 2014.
  2. [22]
    The two components of the development application are intended to work hand in hand to provide a site-specific land use framework and assessment regime.  The site-specific controls are articulated in two documents; proposed plans and a draft set of conditions.  The former are contained in exhibit 7.01. The latter document was marked exhibit 7.03.
  3. [23]
    Reference to the proposed plans reveal approval is sought to develop the land in four precincts, namely precincts 2, 3, 4 and 5.  The disputed issues to be determined are directed at precincts 2 and 4 only. 
  4. [24]
    Precinct 2 is located in the south-western corner of the land, adjacent to the Albion Overpass and the western edge of the railway corridor.  It is presently vacant, regular in shape and 2,320m² in size.[11]
  5. [25]
    Exhibit 7.03 indicates the following uses are proposed in precinct 2, namely:
    1. (a)
      Multiple dwelling;
    2. (b)
      Food and drink outlet (not resulting in retail uses in the precinct exceeding 250 m² GFA);
    3. (c)
      Office (not exceeding 12,000 m² GFA);
    4. (d)
      Shop (not resulting in retail uses in the precinct exceeding 250 m² GFA); and
    5. (e)
      Parking station.
  6. [26]
    Exhibit 7.03 confirms the definitions in the planning scheme will apply to these uses. 
  7. [27]
    The material change of use proposed for precinct 2 is constrained by a defined building envelope.  The parameters defining the envelope are identified in exhibit 7.03, and illustrated on proposed plan UD-04, revision A (amended in red).[12]  Reference to the draft conditions and this proposed plan reveal the building envelope has a maximum height of 15 storeys and prescribed setbacks from a tower and/or podium form to: (1) the rail plaza connection in precinct 1; (2) the rail corridor; (3) the Albion Overpass; (4) McDonald Road; and (5) Albion Road. 
  8. [28]
    Precinct 4 is a long finger of land located on the north-eastern side of the rail corridor.  It has a 415 metre frontage to Hudson Road.  The width of the precinct varies from 5 to 56 metres. 
  9. [29]
    Exhibit 7.03 confirms the following uses are proposed in precinct 4:
    1. (a)
      Multiple dwelling;
    2. (b)
      Short term accommodation;
    3. (c)
      Food and drink outlet (not resulting in retail uses in the precinct exceeding 350 m² GFA);
    4. (d)
      Office;
    5. (e)
      Shop (not resulting in retail uses in the precinct exceeding 350 m² GFA); and
    6. (f)
      Parking station.
  10. [30]
    Exhibit 7.03 confirms the definitions in the planning scheme will apply to these uses. 
  11. [31]
    Like precinct 2, the uses anticipated in precinct 4 are to be constrained by a defined building envelope.  The envelope is identified in exhibit 7.03 and proposed plan UD-06, revision A (amended in red).[13]  Reference to this plan reveals the precinct is divided into four sub-precincts.  The maximum height of development in the most northern sub-precinct, 4A, is 5 storeys.  This increases to 8 storeys in the adjoining sub-precinct 4B and sub-precincts 4C and 4D.  They are located further to the south of sub-precinct 4B.  Sub-precinct 4D adjoins precinct 5.  Its southern end is located within the Albion District Centre. 
  12. [32]
    The proposed plan for precinct 4 identifies setback distances from a podium and/or tower form to Hudson Road and the Rail corridor.  The plan also identifies a minimum tower separation distance of 12 metres between the sub-precincts.
  13. [33]
    Privately owned, but publicly accessible, open space is proposed in precinct 4.  It is to be located in sub-precincts 4A and 4D, being the most northern and southern extremities of the precinct.[14]  The total area of open space proposed is a minimum of 1,650m².
  14. [34]
    The development application seeks to vary the planning scheme in a number of respects.  The variation request seeks the following in relation to precincts 2 and 4, namely to:
    1. (a)
      change the tables of assessment so that a material change of use for one of the uses identified within the prescribed building envelope is code rather than impact assessable, or in limited circumstances, accepted development;
    2. (b)
      change the assessment benchmarks applicable to a code assessable development application made pursuant to the above variation – the assessment benchmarks are limited to the Centre or mixed use code, prescribed secondary codes and overlay codes;
    3. (c)
      vary the planning scheme to prescribe particular acceptable outcomes for development categorised as accepted development; and
    4. (d)
      change the tables of assessment so that a material change of use for one of the uses identified within the prescribed building envelope, save for the maximum height of 8 storeys in sub-precinct 4D, remains impact assessable but is assessed against the Centre or mixed use code, prescribed secondary codes and overlay codes only.

The statutory assessment and decision-making framework

  1. [35]
    The development application was properly made on 13 November 2018.  It is to be assessed and decided in accordance with the requirements of the Planning Act 2016 (the Act).  There are different assessment and decision making requirements prescribed by the Act for the two parts of the development application.
  2. [36]
    That part of the application seeking a preliminary approval for a material change of use is to be assessed and decided in accordance with ss 45, 59 and 60 of the Act.  The former requires, inter alia, the application to be assessed against the assessment benchmarks in a categorising instrument for the development in force at the date the application was properly made.  Section 60(3), in combination with s 59(3), confers a broad discretion to approve an application, in whole or part.  Appellate authority confirms that the exercise of this discretion calls for a broad evaluative judgment, based upon the assessment carried out under s 45.[15]  In the exercise of that discretion, non-compliance with an adopted planning control does not mandate refusal.[16]  It is a relevant fact and circumstance to be considered.
  3. [37]
    Section 50(3) of the Act provides that a development application for a preliminary approval may also include a variation request.  Such a request may seek a variation that does one of three things mentioned in s 43(1) of the Act, namely a variation that:

“(a) categorises development as prohibited, assessable or accepted development;

  1. (b)
    specifies the categories of assessment required for different types of assessable development;
  2. (c)
    sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.
  1. [38]
    A variation request is to be assessed, and decided, in accordance with s 61 of the Act.  Sub-section (2) of this provision identifies the matters the assessment manager must consider when assessing the request:
  1. “61Assessing and deciding variation requests

….

  1. (2)
    When assessing the variation request, the assessment manager must consider –
  1. (a)
    the result of the assessment of that part of the development application that is not the variation request; and
  2. (b)
    the consistency of the variations sought with the rest of the local planning instrument that is sought to be varied; and
  3. (c)
    the effect the variations would have on submissions rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and
  4. (d)
    any other matter prescribed by regulation.
  1. [39]
    The breadth of the discretion to decide a variation request is broadly stated.  Section 61(3) of the Act states:

(3) The assessment manager must decide—

  1. (a)
    to approve—
  1. (i)
    all or some of the variations sought; or
  2. (ii)
    different variations from those sought; or
  1. (b)
    to refuse the variations sought.
  1. [40]
    Whilst the discretion conferred upon the assessment manager to decide a variation request is broadly stated, the exercise of that discretion is, in my view, constrained by s 43(7) of the Act.  This provision limits the extent to which a variation approval may do one of the matters mentioned in s 43(1).  In short, there must be a nexus between the variations granted by the variation approval and the ‘development’ the subject of the variation approval.  Given ss 50(3), 60 and 61 of the Act, the relevant nexus is to be understood as one between the development[17] approved by the assessment manager and the variations granted by the variation approval.
  2. [41]
    Section 43(7) of the Act states:

(7) A variation approval may do something mentioned in sub-section (1) only in relation to—

  1. (a)
    development that is the subject of the variation approval; or
  2. (b)
    development that is the natural and ordinary consequence of the development that is the subject of the variation approval.

Planning context

  1. [42]
    Sections 45(5)(a)(i) and 45(7) of the Act require the material change of use component of the development application to be assessed against Council’s planning scheme, City Plan 2014.  More particularly, the application is to be assessed against the version of the planning scheme in force when the development application was properly made.  It is common ground version 12 of City Plan 2014 (the planning scheme) was in force at this time.
  2. [43]
    For the purposes of the planning scheme, the land comprising:
    1. (a)
      precinct 2 is included in the Character residential zone and the Low density residential zone; and
    2. (b)
      precinct 4 is included in the Special purpose (Transport industry) zone.
  3. [44]
    Both Council and the co-respondent accept the development proposed in precinct 2 is inconsistent with the intent and development expectations for the Character residential zone and Low density residential zone.[18]  This is a sensible concession.  A clear inconsistency arises with the zone provisions of the planning scheme and the proposed development.  This is due to the nature of the proposed land uses and their intensity and scale.  Put simply, a 15-storey building comprising a mix of residential and non-residential uses is not anticipated in either zone.  Nor is it anticipated by provisions of the Strategic framework[19] and Multiple dwelling code[20] that are consistent with the intent and purpose for each of these residential zones.
  4. [45]
    A similar point can also be made with respect to the Special purpose zone and the development proposed in precinct 4.  The purpose of this zone is to, inter alia: (1) provide for the continued use of public facilities and infrastructure for an identified purpose; and (2) ensure that incompatible uses do not encroach upon public facilities or infrastructure. 
  5. [46]
    The proposed development, if approved, would lead to the alienation of land that has historically been preserved, by its zoning, for a particular public purpose, namely transport facilities.  Alienation of the land from this historical public purpose is, prima facie, inconsistent with the intent of the Special purpose (Transport industry) zone.
  6. [47]
    Ordinarily, non-compliance of the kind conceded with the planning scheme is matter that would attract considerable weight in the exercise of the planning discretion under s 60(3) of the Act.  The circumstances here are such that the non-compliance does little to advance the refusal case.  This is so for four reasons.
  7. [48]
    First, the land comprising precinct 4 is surplus to Queensland Rail’s requirements and is to be given over to an urban purpose.  That the land is to be given over to such a purpose is, in my view, inconsistent with the Special purpose (Transport industry) zone in the planning scheme.[21]  It is a clear indicator that the intent of the zone in its application to the land has been overtaken by events. Mr Purcell, who appeared for the appellant, did not suggest otherwise.
  8. [49]
    Second, the Special purpose (Transport industry) zone code anticipates that: (1) the zoning may be overtaken by events where the underlying special purpose ceases; and (2) land no longer required for a special purpose may be re-used for an alternative purpose.  This is reflected in Overall outcome 4(d) of the zone code, which states:

Development enables the re-use of land in the Special purpose zone to occur in an integrated manner should a special purpose cease.

  1. [50]
    This overall outcome recognises a special purpose may cease and the land put to a different use.  The provision does not indicate what, if any, future land use will be appropriate.  All that is required is for the re-use of land ‘to occur in an integrated manner’.  I am satisfied this will occur with the proposed development.  The purpose of the development application is to create a site-specific planning framework to enable a co-ordinated and integrated approach to the re-use of the land, which is no longer required for a special purpose. 
  2. [51]
    Third, the Character residential zone in its application to that part of the land comprising precinct 2 has been overtaken by events, or alternatively, is no longer a valid designation.[22] 
  3. [52]
    The purpose of the Character residential zone is to ensure, inter alia, the character of a residential area is protected, or enhanced.[23]  The particular ‘character’ of interest within the zone is ‘low density suburban and inner-city living’, primarily comprising existing houses built in 1946 or before.[24]  Dwellings of this type are afforded protection in the planning scheme through the inclusion of land in the Traditional building character overlay.  Exhibits 8.02 and 8.03 suggest the overlay applies to precinct 2.
  4. [53]
    Here, the evidence establishes that the land comprising precinct 2 is vacant. It is not improved with character residential dwellings of the kind intended to be protected in the zone.  The houses on this part of the land were demolished between December 2017 and May 2018,[25] some 3 to 4 years after City Plan 2014 took effect.  The underlying reason for the zoning ceases to exist, and cannot be replaced.
  5. [54]
    Fourth, that the land comprising precinct 2 is vacant does not necessarily displace the application of the Character residential zone or the Low density residential zone codes.  The zone code for the former anticipates that land may be developed with other types of low density residential and small-scale non-residential uses.[26]  A similar point can be made in relation to the latter zone.  Other forms of residential and non-residential uses, subject to qualifications, are anticipated in each zone.[27]  In this context, the zoning of the land comprising precinct 2 may be treated as an expression of future land use intent. 
  6. [55]
    Assuming the residential zoning is an expression of future land use intent, there is good reason for that intent to attract little weight in the determination of the development application.  The following circumstances suggest the zoning is not soundly based for precinct 2, or alternatively, is displaced by operation of s 1.5 of the planning scheme:
    1. (a)
      the land is surrounded on three sides by heavy infrastructure.  This includes the Albion Overpass, which is suspended about 11 to 12 metres above the land.[28]  The presence of this infrastructure, coupled with the impacts associated with the adjoining rail corridor, render the land unsuitable for low density residential development.[29]  In simple terms, there is genuine doubt as to whether residential development of this kind could comply with Overall outcomes 4(g) and (4)(d) of the Low density residential zone code and Character residential zone code respectively.  The overall outcomes are in identical terms, and state:

Development reflects and supports the high level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.

  1. (b)
    there is an inconsistency between the future land use intent articulated in the residential zoning compared to the applicable neighbourhood plans and Strategic framework provisions of the planning scheme, which have application to the land.  In simple terms, the Strategic framework and neighbourhood plans anticipate the land may be developed for transit orientated development. Development of this kind is mixed use in nature.  Given its proximity to high frequency public transport and the Albion District Centre, there is a reasonable expectation development of this kind may be more intense than that anticipated in the two residential zones.  This expectation is founded not just on the provisions of the Strategic framework and neighbourhood plans, but also s 1.5 of the planning scheme.  This provision provides the Strategic framework and/or neighbourhood plans will prevail to the extent of any inconsistency with the zoning provisions.
  1. [56]
    It is the Strategic framework and applicable neighbourhood plans that call for close examination in this case.
  2. [57]
    I will deal with the Strategic framework first.
  3. [58]
    Part 3 of the planning scheme sets out the Strategic framework.  This framework identifies the policy direction for the planning scheme.  It also forms the basis for ensuring ‘appropriate development’ occurs during the life of the planning scheme.[30]  The policy direction is articulated in maps and text. 
  4. [59]
    A review of the Strategic framework mapping reveals the land is included in an expansive area described as ‘Suburban Living Areas’.  These areas represent the majority of established suburbs in Brisbane.  They are described in s 3.7.1(1)(g) as follows:[31]
  1. “(g)
    Brisbane’s Suburban Living Areas represent the majority of established residential suburbs in Brisbane, where growth occurs in response to local needs and impacts on local amenity and values are carefully considered.  Brisbane’s Suburban Living Areas comprise the following:
  1. (i)
    low density residential areas where the majority of development is housing in the form of detached dwellings ranging from small cottages to large family homes on lots typically in the range of 400 – 800 m²;
  2. (ii)
    centres, community facilities, medium and high density residential and industrial uses, as indicated in neighbourhood plans and the zoning pattern;
  3. (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;
  4. (iv)
    areas of character housing and commercial character buildings substantially constructed in 1946 or earlier;
  5. (v)
    areas of small-scale low-medium density housing such as dual occupancy or row housing that encourage intergenerational housing options to facilitate ageing in place;
  6. (vi)
    a range of non-residential land uses that generally support the needs of the surrounding residential area.”
  1. [60]
    The above description of Suburban Living Areas reflects that, whilst the area is extensive, ‘growth’ is anticipated.  Growth is to occur in response to local needs, with impacts carefully considered.  The growth is not limited to residential uses; it includes centres, community facilities and industrial uses.  Medium and high-density residential uses are also anticipated.  Importantly, the above description makes clear that the location, and intensity, of these uses take their lead from, inter alia, neighbourhood plans.
  2. [61]
    The Strategic framework is structured to include, inter alia, five ‘themes’ that collectively represent the policy intent of the planning scheme. 
  3. [62]
    Theme 5 is described as ‘Brisbane’s CityShape’.  The Strategic outcomes for this theme are articulated in nine elements, which are identified in s 3.7.1(2).  Element 5.5 applies to the Suburban Living Areas.
  4. [63]
    Table 3.7.6.1 contains 7 Specific outcomes, and associated Land use strategies, applicable to Element 5.5.  The Specific outcomes, and associated Land use strategies, confirm Suburban Living Areas, whilst experiencing limited growth and providing predominantly detached housing for residents, may include non-residential uses such as centres and medium-high density residential uses.  Specific outcome SO1 states:[32]

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

  1. [64]
    The Strategic framework anticipates and promotes ‘growth’ occurring in particular parts of the Suburban Living Areas in response to ‘context and needs’.  An area earmarked to respond to growth is designated a ‘Growth Node’.  There are two types of Growth Nodes, Planned and Future.  A review of the Strategic framework mapping reveals the land is included in a Planned Growth Node on a Selected Transport Corridor.  This designation is not based on cadastre.  It is an indicative designation coincident with Albion and the train station.
  2. [65]
    The growth planned to occur within Growth Nodes is discussed in a Strategic outcome for Theme 5 that reveals residential and non-residential uses are anticipated.  Development is, however, to maintain the suburban character of the Suburban Living Areas. In this regard, Strategic outcome (k) for Theme 5 in s 3.7.1 states:[33]

Brisbane’s Growth Nodes on Selected Transport Corridors provide for growth in dwellings and jobs to be concentrated in identified nodes along Selected Transport Corridors to ensure access to employment, services and infrastructure whilst maintaining the leafy suburban character of Brisbane’s Suburban Living Areas.  The Future Growth Nodes are to be preserved as future opportunities for achieving the infill requirements of the SEQ Regional Plan and employment growth until the following are satisfied…” (emphasis added)

  1. [66]
    This Strategic outcome is developed in Element 5.8 of Theme 5, which deals with Growth Nodes on Selected Transport Corridors. 
  2. [67]
    Table 3.7.9.1 sets out four Specific outcomes, and associated Land use strategies, applicable to Element 5.8.  A review of Specific outcomes SO1, SO2 and SO3 in Table 3.7.9.1 confirm that Growth Nodes on Selected Transport Corridors:
    1. (a)
      provide opportunities for more intense urban form and a mix of land uses and activities;
    2. (b)
      provide an integrated urban form and exhibit leading practice in urban and public domain design and social and environmental outcomes; and
    3. (c)
      are based on railway stations and land within the Centre zone, which are focus points of activity, accessibility and employment.[34]
  3. [68]
    That Growth Nodes are ‘based on’ or ‘focused on’ land within the Centre zone does not mean, in the circumstances here, that the node is limited to the eastern side of the rail corridor, coincident with the Albion District Centre.  The mapping suggests the node for Albion covers both sides of the rail corridor.[35]  There was little if any disagreement between the town planning witnesses about this. Mr Gaskell, who was called by the appellant, accepted without qualification that the Growth Node ‘straddles’ the transport corridor,[36] thereby including land to the east and west of the rail corridor.  He could identify no planning reason that would require the node to be limited to the eastern side of the rail corridor.[37]  I accept Mr Gaskell’s evidence in this regard.
  4. [69]
    The Land use strategies applicable to the Specific outcomes discussed above are articulated in Table 3.7.9.1. Importantly, the Land use strategies confirm that growth anticipated within Growth Nodes on Selected Transport Corridors is not a blank sheet, or open ended.  The provisions require two things to be considered.
  5. [70]
    First, Land use strategy L1.2 confirms it is necessary to look to neighbourhood planning for direction about a specific Planned Growth Node.  The provision states:[38]

Planned Growth Nodes on Selected Transport Corridors provide for future growth in accordance with a neighbourhood plan.

  1. [71]
    The importance of neighbourhood plans to guide future growth in Growth Nodes on Selected Transport Corridors is reinforced in Element 2.2 of the Strategic framework.  In the context of Brisbane’s housing and accommodation choices, Specific outcome SO1, and its associated Land use strategy L1 in Table 3.4.3.1, confirm the neighbourhood planning process has identified where an increase in development intensity is intended in Growth Nodes.  Any increase in intensity is to be in accordance with Theme 5.  Land use strategy L2 in Table 3.4.3.1 echoes a similar sentiment.[39] 
  2. [72]
    Second, Land use strategy L2.1, whilst recognising development within a Growth Node is to provide for a mix of uses, densities and urban form, this is subject to development ‘protecting residential amenity commensurate with its location’.  The need to protect amenity is clearly stated in Specific outcome SO4 and its associated Land use strategy, L4, in Table 3.7.9.1.  These provisions state:[40]

SO4

Growth Nodes on Selected Transport Corridors protect the character and amenity of the surrounding Suburban Living Areas within which they are located.

L4

Development is of a scale and mass that provides an appropriate transition in building height and bulk to the Suburban Living Areas in particular those adjoining neighbourhoods that are sensitive to the physical and visual character and amenity of adjoining neighbourhoods with lower development intensities and building heights.

  1. [73]
    Mr Gaskell’s evidence proceeded on the footing that the land is included within an area ear-marked for transit orientated development (and all that entails).[41]   He pointed out, correctly, that: (1) the Strategic framework does not confer a license to develop a Growth Node on a Selected Transport Corridor in any way an applicant chooses;[42] and (2) development is required to respect local character and amenity.[43]  It is clear from his evidence that Mr Gaskell looked to the applicable neighbourhood plans and zoning provisions for two purposes; one, for guidance in relation to the extent of urban renewal that is appropriate on the land in response to item (1); and two, to assess the acceptability of the impacts of development on amenity and character in response to item (2).[44]
  2. [74]
    Mr Gaskell was correct to look at the applicable neighbourhood plans. However, for reasons given in paragraphs [47] to [55], I have difficulty accepting his reliance upon the zoning provisions was the correct approach to adopt in the circumstances of this case.[45]  The zoning has been: (1) overtaken by events; or (2) represents a designation that is unsound; or (3) anticipates a form and intensity of development that does not sit comfortably with transit orientated development encouraged by the Strategic framework and neighbourhood planning in force after May 2020.  This means Mr Gaskell, to the extent his views are founded on the zoning provisions of the planning scheme, fell into error.  It can be observed that Mr Curtis adopted a similar approach to Mr Gaskell for the assessment of visual amenity and character impacts, drawing assistance from the zoning provisions.
  3. [75]
    The Strategic framework guides the reader to, inter alia, neighbourhood plans and zoning to determine the extent of growth planned for a Growth Node.  In the circumstances of this case, it is the neighbourhood plans that are to be the subject of particular consideration.  It is these documents that provide considerable guidance in the determination of the remaining issues in dispute.  So much was confirmed in the following exchange in oral submissions with Counsel for the appellant, Mr Purcell:[46]

HIS HONOUR:  What this means is, on your case, then, the most telling part of the assessment against the planning scheme is against the neighbourhood plans.

MR PURCELL:  Indeed. It is, your Honour.

HIS HONOUR:  Right. So…do I take it from that, if there is compliance with the neighbourhood plans, that’s the end of the appellant’s case?

MR PURCELL: …That would be correct, your Honour.[47]

  1. [76]
    The land is included in three neighbourhood plan areas, namely:
    1. (a)
      the Albion Neighbourhood Plan area (ANPA);
    2. (b)
      the Clayfield-Wooloowin District Neighbourhood Plan area (CWDNPA); and
    3. (c)
      the Lutwyche Road Corridor Neighbourhood Plan area (LRCNPA).
  2. [77]
    The verbiage for each of these areas is contained in separate neighbourhood plan codes.
  3. [78]
    The land comprising precinct 2 is included in the LRCNPA.  The first iteration of the neighbourhood plan, which was introduced in 2010, formed part of the repealed City Plan 2000.  The neighbourhood plan was adopted as part of City Plan 2014, and amended in 2020.[48]  The eastern boundary of the neighbourhood plan area follows the rail line.
  4. [79]
    The LRCNPA is divided into precincts.  The land comprising precinct 2 of the proposed development sits within the south-western corner of the LRCNPA in precinct NPP-004.  This precinct is described as the Albion and Wooloowin railway stations precinct.
  5. [80]
    The stated purpose of the LRCNPA code is to provide ‘finer grained planning’ at a local level for the neighbourhood plan area.[49]  The purpose is said to be achieved through overall outcomes, including overall outcomes for each precinct of the LRCNPA.[50]  Overall outcomes 3(a) to (c) inclusive describe the land use pattern contemplated for the LRCNPA as follows:[51]

(a) Intensive redevelopment is focused in the Lutwyche centre precinct and Windsor east precinct to reflect their role as established activity centres and their high level of accessibility to high-quality public transport nodes.

  1. (b)
    Less-intensive redevelopment occurs in other locations along Lutwyche Road that are well-serviced by public transport as shown on the NPM-012.4 Lutwyche Road corridor neighbourhood plan map.
  2. (c)
    In the balance of the neighbourhood plan area, established residential areas such as Gordon Park, Kedron and Wooloowin are primarily for low density residential uses with character housing retained.
  1. [81]
    Overall outcomes 3(a) and (b) do not apply to the land.
  2. [82]
    The land is located in the ‘balance’ area of the LRCNPA, which is primarily, but not solely, intended for low density residential uses, including character housing.  That the balance area may include other forms of development is confirmed by the Overall outcome 3(d) of the LCRNPA code, which states:
  1. “(d)
    Intensive mixed use and residential development is focused on and takes advantage of high-quality public transport facilities that serve the Lutwyche Road Corridor neighbourhood plan area, with a concentration of employment opportunities and medium to high density residential areas within easy walking distance of public transport nodes.
  1. [83]
    There can be little doubt: (1) the Albion train station is a high-quality public transport facility that serves the LRCNPA; and (2) the land comprising precinct 2 is within easy walking distance of the Albion train station.  In such circumstances, it can be said that Overall outcome 3(d) supports the proposed development.  This was conceded by Mr Gaskill.[52]  The support involves encouragement for development that provides a ‘concentration of employment opportunities’ and ‘medium to high density residential’ development in precinct 2.
  2. [84]
    Two provisions of the LRCNPA in force at the time the application was properly made qualify the support the development can derive from Overall outcome 3(d).
  3. [85]
    First, Overall outcome 7 of the LCRNPA code, which applies to the Albion and Wooloowin railway stations precinct, states:[53]
  1. “(7)Albion and Wooloowin railway stations precinct (Lutwyche Road corridor neighbourhood plan/NPP-004) overall outcomes are:
  1. (a)
    State-owned land that is not required for transport purposes is considered suitable for medium density residential development due to its proximity to the railway stations. 
  2. (b)
    Where adjoining established low density residential areas, new development complements the bulk and scale of those areas.
  1. [86]
    Overall outcome 7 speaks of land, such as precinct 2 of the proposed development, being ‘suitable’ for ‘medium density residential development’.  This statement of planning intent, coupled with Overall outcome 3(c) of the same code, suggests the development encouraged in the precinct is to be residential in nature and medium density.  This can be contrasted with Overall outcome 3(d) that promotes a mix of uses with a range of development densities, being medium to high density.
  2. [87]
    Overall outcome 7 was deleted from the LRCNPA code on and from 1 May 2020.[54] Overall outcome 3(d) has not been amended.
  3. [88]
    Second, Overall outcome (3)(j) of the LRCNPA code seeks to limit new development to a height, scale and form consistent with, inter alia, community expectations.  The provision also provides a test to be considered when a greater height, scale and form is proposed than what is anticipated by the planning scheme.  The provision states:[55]

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.

  1. [89]
    The development proposed in precinct 2 is of a height, scale and form that is not consistent with the development intended in the relevant precinct.  It is a high rise, high density mixed use development within the ‘balance area’ (referred to in Overall outcome 3(c)), where medium density residential development is ‘considered suitable’.
  2. [90]
    Non-compliance with Overall outcome 3(j) is relevant to an assessment against Performance outcome PO1 of the same code.  This provision applies throughout the LRCNPA and states, in part:[56]

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. (a)
    consistent with the anticipated density and assumed infrastructure demand;
  2. (b)
    aligned with community expectations about the number of storeys to be built;
  3. (c)
    proportionate to and commensurate with the utility of the site area and frontage width;
  4. (d)
    designed to avoid a significant and undue adverse amenity impact to adjoining development;
  5. (e)
    sited to enable existing and future buildings to be well separated from each other and avoid affecting the potential development of an adjoining site.
  1. [91]
    PO1 speaks of development ‘achieving the intended outcomes for the precinct’.  Whether this is achieved in this case is informed by an assessment of the development against, inter alia, Overall outcome 7(a) of the LRCNPA code.  That assessment reveals inconsistency in terms of ‘anticipated density’ and intended land uses.  It also reveals an inconsistency in terms of building height.  In this regard, the planning scheme regards medium density residential development as being in the order of five storeys in height.[57]  The proposed development significantly exceeds this height. As a consequence it cannot be said that development in precinct 2 is ‘aligned with community expectations about the number of storeys to be built’.
  2. [92]
    The position in relation to Overall outcomes 7 and 3(j) changes materially when the May 2020 amendment to the LRCNPA code is taken into account.  The amendment resulted in the deletion of Overall outcome 7.  By deleting this Overall outcome, it can be said that the type and scale of development proposed falls to be examined against Overall outcomes 3(c) and (d).  When this exercise is undertaken, Overall outcome 3(j) is not engaged. Compliance can be demonstrated with Overall outcomes 3(c) and (d) and, in turn, PO1. This is a matter that attracts significant weight in the exercise of the planning discretion. It is reflective of a material shift in forward planning. To ignore this shift would be illogical. Nor would it be supported by a matter of planning principle or practice.
  3. [93]
    The land comprising precinct 4 is included within the CWDNPA.  An earlier iteration of this plan formed part of City Plan 2000.  It was adopted as part of City Plan 2014.  The CWDNPA has not been amended since its adoption in 2014. 
  4. [94]
    The CWDNPA is located to the north and east of the Albion train station.  Its western edge coincides with the rail line.  The land is not included in any specific precinct, or sub-precinct of the CWDNPA.
  5. [95]
    Reference to the CWDNPA code reveals there is no provision limiting the type and intensity of development on land comprising precinct 4.  Guidance is provided by Overall outcome 2(a) of the code.  The provision, read as an expression of future land use intent for the neighbourhood plan area, states:[58]
  1. “(a)
    Development will be underpinned by regionally significant transport infrastructure, focused along the Caboolture railway corridor and Sandgate Road.
  1. [96]
    The appellant does not suggest development proposed in precinct 4 is inconsistent with the CWDNPA code.
  2. [97]
    The ANPA is located to the south of the CWDNPA. 
  3. [98]
    The first iteration of the neighbourhood plan for the ANPA was introduced in 2008, forming part of City Plan 2000.  The neighbourhood plan was adopted as part of City Plan 2014, and updated in 2016.  Only land comprising precinct 5 of the proposed development is included within the ANPA. 
  4. [99]
    The stated purpose of the ANPA code is to provide finer grained planning at a local level for the neighbourhood plan area.[59]  The finer grained planning will be achieved through overall outcomes, including overall outcomes for each precinct of the neighbourhood plan area. Overall outcome 3(b) of the ANPA code states:
  1. “(b)
    Development of medium and high density residential and mixed uses is concentrated in the Station…and not in the surrounding residential or industrial areas.
  1. [100]
    The land is included in the Station precinct of the ANPA.  The Overall outcomes for this precinct are as follows:[60]

(a) Development includes a mix of uses that capitalises on proximity to, and provides a high level of accessibility to, the railway station and Albion village.

(b) Development complements, extends and consolidates the suburban functions provided in Albion village, and may include a supermarket.

(c) Development improves connections for pedestrians and cyclists between the railway station, Albion village and surrounding residential and employment areas.

(d) Development adjacent to the railway station and rail corridor manages the amenity impacts of the railway through building design and placement of appropriate uses.

  1. [101]
    Whilst a mix of uses is anticipated in the Station precinct, the form and scale of development promoted is qualified by Overall outcome 3(c) of the ANPA code, which states:

(c) The form and scale of development in Albion is subservient to Bowen Hills and Fortitude Valley and maintains building heights sensitive to surrounding residential areas.

  1. [102]
    Table 7.2.1.2.3.A of the planning scheme sets out the Performance outcomes and Acceptable outcomes of the ANPA code.  Acceptable outcome AO1 calls up Table 7.2.1.2.3.B.  This table forms part of the ANPA code and identifies maximum building heights (in storeys) for a number of precincts of the neighbourhood plan area.  Relevantly, the table provides that development on a site greater than 2,000 m² in the Station precinct has a maximum height of 15 storeys.  This can be contrasted with The Hudson (16 storeys) and recent approvals granted by Council for dual 20-storey tower development.
  2. [103]
    The appellant does not rely upon non-compliance with the ANPA code to warrant refusal of the application.  This neighbourhood plan is relied upon as being ‘contextually relevant’ only.[61]
  3. [104]
    That part of the development application seeking a preliminary approval to vary the planning scheme identifies alternative assessment benchmarks that will, if approved, apply to future development applications.  The assessment benchmarks for development in precincts 2 and 4 include the Centre or mixed use code and the Multiple dwelling code.
  4. [105]
    With respect to the Centre or mixed use code, the appellant alleges non-compliance with three Performance outcomes, namely PO20, PO21 and PO22.[62]  Performance outcome PO22 can be dealt with quickly.  It does not apply in this case because: (1) neither the LRCNPA code, nor the CWDNPA code, identifies land within precincts 2 or 4 as a ‘building height transition’; and (2) the development in precincts 2 and 4 do not share a common boundary with premises in a residential zone.
  5. [106]
    Performance outcome PO20 is directed at ‘building bulk and scale’.  It requires development to be consistent with the intended form and character of the centre, mixed use or local area having regard to 6 considerations.  The considerations to be examined include adjoining existing and proposed building heights, setbacks and separation and building height transitions.
  6. [107]
    Performance outcome PO21 is directed at ‘building height’.  It requires building height to be consistent with the centre or mixed use area intent and local and street context having regard to 8 considerations.  The considerations to be examined include proximity to high-frequency public transport services, the height of existing adjoining buildings, and proposed heights.
  7. [108]
    With respect to the Multiple dwelling code, the appellant alleges non-compliance with one overall outcome and three performance outcomes, namely Overall outcome 2(h) and PO5, PO6 and PO7.[63]  PO7 does not apply to this case.  The preconditions to its application are not met because: (1) no applicable neighbourhood plan includes precincts 2 and 4 in a building height transition area; and (2) the land is not included in the Medium density residential or High density residential zones.
  8. [109]
    Overall outcome 2(h) states:

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 storeys zone precinct of the Low-medium density residential zone;

(vi) 2 storeys in the 2 storeys 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.

  1. [110]
    The non-compliance alleged with this provision assumes community expectations as to building height in this case are derived from the underlying zoning.  For reasons given in paragraphs [51] to [55], any non-compliance (direct or indirect) based on the zoning provisions attracts little weight in the circumstances of this case.
  2. [111]
    Performance outcome PO5 is directed at ‘building bulk and scale’.  The provision is not dissimilar to PO20 of the Centre or mixed use code.  It requires building bulk and scale to be consistent with the intended form and character of the local area, having regard to 5 considerations.  The considerations include existing and proposed building heights in the local area and street.
  3. [112]
    Performance outcome PO6 is directed at ‘building height’.  The provision requires development to be consistent with the streetscape local context and the intent for the area having regard to 7 considerations.  The considerations to be examined include proximity to high-frequency public transport services, the predominant height of existing or approved buildings in the street, and the need to ensure there is appropriate separation, and a sensitive transition, between houses and higher scale building forms.

The disputed issues

  1. [113]
    The disputed issues narrowed during the course of the hearing.  They are set out in an amended agreed list of issues, which was marked exhibit 1.06.
  2. [114]
    Having regard to exhibit 1.06, and the planning context above, the central issues for determination can be stated as follows:
    1. (a)
      whether the uses proposed in precincts 2 and 4 comply with the planning scheme;
    2. (b)
      whether the height, bulk, scale and intensity of the building envelopes proposed in precincts 2 and 4 comply with the planning scheme;
    3. (c)
      whether there is a need for the type and scale of development proposed in precincts 2 and 4;
    4. (d)
      whether the planning discretion conferred by s 60(3) of the Act ought be exercised in favour of approval; and
    5. (e)
      whether that part of the application seeking to vary the effect of City Plan 2014 in respect of precincts 2 and 4 has an adverse effect on future submission rights.
  3. [115]
    I will consider each of these issues in turn.

The acceptability of the uses proposed in precincts 2 and 4

  1. [116]
    The appellant alleges the material change of use proposed in both precincts 2 and 4 is unacceptable.  The written submissions advanced on his behalf develop this allegation.  In short, the submissions invite the Court to examine land use acceptability by reference to the planning scheme and, based on that examination, conclude: (1) precincts 2 and 4 sit outside the area identified to facilitate future growth on a Selected Transport Corridor;[64] (2) development in precinct 2 seeks to jump the rail corridor and introduce centre/mixed use activities into an ‘out-of-centre’ location;[65] (3) development in precinct 4 seeks to locate, in ribbon type development, centre/mixed uses in an ‘out-of-centre’ location;[66] and (4) the proposed development unacceptably cuts across the community’s expectations as to the form and character of development appropriate for precincts 2 and 4.
  2. [117]
    I accept the starting point for an examination of land use acceptability is the planning scheme.  Here, it can be said immediately that not all parts of that document possess the potency the appellant suggests.  In particular, for reasons given in paragraphs [47] to [55], inconsistency of land use with zoning provisions is not determinative in this case.  An examination of land use acceptability is better assisted, in my view, by the provisions of the Strategic framework, and the applicable neighbourhood plans.
  3. [118]
    Are the uses proposed in precincts 2 and 4 consistent with the Strategic framework and applicable neighbourhood plans?
  4. [119]
    For the reasons that follow, I am satisfied this question is resolved in the affirmative having regard to the version of City Plan 2014 that includes the amendments made in May 2020.
  5. [120]
    The appellant concedes: (1) the land represents a good opportunity for transport orientated development; and (2) transport orientated development on the land would support utilisation of the Albion train station and the Albion District Centre.[67]  These concessions are to be regarded as an acknowledgment that the Strategic framework provisions with respect to Growth Nodes on Selected Transport Corridors apply to the land.  The appellant’s case, as reflected in items (1), (2), (3) and (4) at paragraph [116], assumes the Growth Node, whilst anticipating transit orientated development, is limited to the eastern side of the rail corridor, coincident with the Albion District Centre.
  6. [121]
    In the first instance, I do not accept this proposition for the reasons discussed in paragraph [68].
  7. [122]
    Further, it can be said that the proposition is not supported by the Strategic framework mapping or text.
  8. [123]
    The Planned Growth Node for Albion is illustrated on Strategic framework Map 3.[68]  This is a broad-scale map depicting a substantial part of the planning scheme area.  The Growth Node at Albion straddles the rail corridor touching, and extending a significant distance beyond, its eastern and western sides.  The node is not fixed by reference to a cadastral base.  Given the scale of the mapping, the location of the node is indicative and not fixed to one side of the rail corridor.
  9. [124]
    As to the text of the Strategic framework, I was not referred to an express provision that purports to limit the Growth Node at Albion to the District Centre on the eastern side of the rail corridor.  Any limitation relied upon in this regard must therefore arise by implication.  As I understood his submissions, Mr Purcell contended that the Strategic framework, particularly the provisions discussed at paragraphs [65] to [72], provides a basis for the implication given they speak of nodes being based, or focused, on centres.  I do not accept this submission.  When read with other parts of the Strategic framework, the provisions relied upon do not support the implication for which the appellant contends.
  10. [125]
    Element 2.2, 5.8 and s 3.7.1 of the Strategic framework, collectively, suggest: (1) Growth Nodes on Selected Transport Corridors provide opportunities for a range of land uses and activities that are tailored to a locality, and the community’s needs;[69] (2) Growth Nodes are focused and based on land in the Centre zone and railway stations;[70] and (3) future growth intended in a Growth Node is identified through the neighbourhood planning process.[71]  Item (3) makes clear that neighbourhood plans provide guidance as to the location and nature of future growth intended in a particular Growth Node.  That is, the neighbourhood plans inform how development will be focused, and based, on land in a centre zone and a railway station.  Put simply, the Strategic framework does not descend to the level of detailed planning that would fix the precise location and extent of a Growth Node.  It is the zones and neighbourhood plans that provide the detail.  Here, the zones provide no assistance.  It is the neighbourhood plans that must be examined.
  11. [126]
    As I have already observed, the land falls within three neighbourhood plan areas.  The neighbourhood plans, taken collectively, do not support the proposition that the Planned Growth Node is limited to the Albion District Centre.  Nor do they support the proposition that the uses proposed in precincts 2 and 4 are unacceptable because they are to be regarded as inappropriate and ‘out-of-centre’.
  12. [127]
    Precinct 2 is included in the LRCNPA.  The version of the LRCNPA code in force at the date the development application was made does not support the proposition that the Growth Node is limited to the eastern side of the rail corridor.  In particular, Overall outcomes 3(d) and 7 of the code are consistent with the proposition that future growth in the Growth Node is planned to occur on the western side of the rail corridor.  Both provisions anticipate transit orientated development.  Any residual doubt about this was, in my view, removed when Overall outcome 7 was deleted from the LRCNPA code in May 2020.
  13. [128]
    Precinct 4 is included in the CWDNPA.  Whilst the code for this neighbourhood planning area provides limited guidance, it does not discourage development of the kind proposed in precinct 4.  Not only does the code not discourage transit orientated development, Overall outcome 2(a) encourages development that is underpinned by, inter alia, ‘regionally significant transport infrastructure’.  This objective, coupled with the absence of discouragement for particular forms of transit orientated development (non-residential), does not suggest the uses proposed in precinct 4 are fairly regarded as inappropriate and ‘out-of-centre’.
  14. [129]
    The land is also included in the ANPA.  This neighbourhood planning area does not include precincts 2 and 4.  It does however provide guidance about the Albion District Centre and associated Station precinct.  I was not directed to any provision of the code with respect to the District Centre, or railway station, that is said to support the contention that future growth in the Planned Growth Node at Albion is limited to this neighbourhood plan area, or an identified precinct.  Further, I was not referred to a provision of the ANPA code that suggests transit orientated development on the rail corridor land constitutes inappropriate or ‘out-of-centre’ development.
  15. [130]
    As a matter of context, I do however note Overall outcome 3(b) of the ANPA code, which states:

Development of medium and high density residential and mixed uses is concentrated in the Station, Albion village…and not in surrounding residential or industrial areas.

  1. [131]
    The reference to surrounding residential areas, in my view, captures the Low density residential zoned land that is located to the north and east of the ANPA.  Precinct 4 is, in effect, wedged between the eastern side of the rail corridor and this residential area. Precinct 4 is separated from the residential area by Hudson Road.  It does not form part of the residential area.  It is not residential in character.  The character of the land is aligned with the adjoining rail corridor.
  2. [132]
    Given: (1) precinct 4 is not within the ANPA; (2) that Overall outcome 3(b) of the ANPA code is not reflected in the CWDNPA code; (3) the land comprising precinct 4 of the proposed development is physically separated from the residential area captured by Overall outcome 3(b); and (4) Overall outcome 2(a) of the CWDNPA, read with Element 5.8 of the Strategic framework, suggests transit orientated development is anticipated in the neighbourhood plan area; I was unable to conclude the uses proposed in precinct 4 are discouraged (either directly or indirectly) by Overall outcome 3(a) of the ANPA code.  In my view, the true position is that the CWDNPA contains forward planning for precinct 4.  The forward planning, such as it is, does not discourage the development proposed.  Nor does it suggest the uses proposed in precinct 4 are to be regarded as unacceptable or ‘out-of-centre’ development.  The ANPA does not cause me to reach a different view.
  3. [133]
    It was further submitted on the appellant’s behalf that the uses proposed in precincts 2 and 4 can be contrasted with the residential land uses ‘reasonably expected to occur’ in precincts 2 and 4.[72]  The comparison was submitted to reveal that the proposed uses were unacceptable because:
    1. (a)
      they are incompatible with the surrounding neighbourhoods;
    2. (b)
      their height was more commensurate with land in a centre zone or High density residential zone;
    3. (c)
      they would be located in an area where residential and industrial areas are to be maintained; and
    4. (d)
      the preliminary approval does not seek a cap on any proposed land use.
  4. [134]
    Putting aside that (d) does not arise by reason of the suggested comparison, the difficulty with the comparative exercise suggested on behalf of the appellant is that it starts from the premise that items (1), (2), (3) and (4) in paragraph [116] are correct and Overall outcome 3(b) of the ANPA Code operates as contextual discouragement for the development proposed in precinct 4.  As I said above, I do not accept these propositions are correct. In short, the comparison is not a useful one because it assumes the uses proposed are inconsistent with the planning scheme.
  5. [135]
    An issue for determination in the appeal is whether the uses proposed in precincts 2 and 4 are acceptable.  Having regard to the evidence, and the planning controls, I am satisfied the uses are: (1) acceptable uses; and (2) of an acceptable intensity; because:
    1. (a)
      for reasons discussed in paragraphs [47] to [55], whilst the development proposed is inconsistent with zoning provisions, that inconsistency is not determinative of this appeal;
    2. (b)
      the development proposed is transit orientated development. Development of this kind finds support in the Strategic framework, LRCNPA code and CWDNPA code – it is development that promotes growth along transport corridors at identified nodes, consistent with planning principle;[73]
    3. (c)
      the support gained from the planning scheme for the proposed development is complemented by the evidence of Mr Buckley and Mr Ovenden, which I accept.  Their evidence establishes that Albion is important for promoting growth along transport corridors at identified nodes.[74]  In this context, the land, because of its physical relationship to the recognised transport node at Albion, is inherently suitable for accommodating future growth in a Growth Node along a high frequency public transport corridor;
    4. (d)
      the planning scheme, consistent with planning principle, demonstrates there is considerable public interest in transit orientated development of the kind proposed.  Here, this is because the uses and the intensity of those uses proposed across all of the precincts facilitate the clustering of residential and employment uses around a high frequency train station and District Centre.  This serves to optimise public investment in rail infrastructure;
    5. (e)
      the evidence of Messrs Buckley, Powell, Peabody, Ovenden and Dr McGowan establishes that the public benefit referred to in (d) can be achieved in circumstances where impacts on character and amenity can be conditioned and managed appropriately in the context of future development applications, which are to be assessed and decided in the manner anticipated by the variation request; and
    6. (f)
      the economic experts called to assist the Court examined the impact of the proposed development[75] – their joint report does not suggest the proposed development would undermine, or compromise, the Albion District Centre.  In my view, there is good reason for this.  The proposed development, as is envisaged by the planning scheme, will complement the centre rather than detract from it.  The proposed development will contribute to the ongoing urban renewal and intensification of the centre and surrounding area to facilitate the optimisation of important public infrastructure.[76]
  6. [136]
    In support of this part of the appellant’s case, it was also submitted that the uses proposed in precincts 2 and 4 do not comply with s 3.4.1(1)(i) of the Strategic framework and PO14 of the Centre or mixed use code.  I do not accept this submission.
  7. [137]
    Section 3.4.1(1)(i) of the Strategic framework states:

Brisbane’s housing choices are integrated within the communities and neighbourhoods of the city in a form appropriate to the locality and are consistent with the outcomes for the relevant Growth Nodes on Selected Transport Corridors or Suburban Living Areas.

  1. [138]
    PO14 of the Centre or mixed use code requires development to, inter alia, enhance the role and function of a centre or mixed use area as a place of economic and community activity, considering its strategic location, form, character intent and the catchment it serves.
  2. [139]
    Against the background of the above, I am satisfied the nature and scale of the uses proposed in precincts 2 and 4 are consistent with the intentions for the most recent expression of planning intent to guide growth in the Albion Growth Node.  Consistency, which is largely founded upon the strategic location of the land (being proximate to high frequency public transport and the Albion centre), will enhance the role and function of the Albion District Centre and Growth Node.  The development will do this by facilitating the concentration of employment and residential uses in a location optimising high frequency public transport and centre activities.  This will occur in circumstances where there will be, in my view, an absence of adverse planning consequences.
  3. [140]
    For the reasons given above, I am satisfied the nature and intensity of uses proposed in precincts 2 and 4 of the development do not warrant refusal.

Acceptability of a 15 storey building in precinct 2

  1. [141]
    The appellant contends the height and scale of development in precinct 2 (15 storeys), having regard to local context, will give rise to unacceptable character and amenity impacts.  The submissions advanced on the appellant’s behalf rely upon a number of matters to make good this point.
  2. [142]
    Mr Purcell pointed out that development to the west of precinct 2 is, in character terms, consistent.  He submitted the area comprises: (1) predominantly one to two storey character dwellings along tree lined streets; and (2) limited non-residential uses, which are accommodated within low-key buildings consistent with the character described in (1).  These attributes were said to contribute to the area’s residential amenity. I accept these submissions are established by the evidence.
  3. [143]
    With the character of the area west of precinct 2 in mind, the Court was invited to compare and contrast that character with the proposed development in precinct 2.  Mr Purcell submitted the comparative exercise reveals a stark contrast.  More particularly, it was said that the proposed development, which is a high rise/high density tower of 15 storeys, would visually dominate the area; provide insufficient transition to the west; and be inconsistent with the character of the area to the west.  These submissions assume the opinions of Mr Curtis, the appellant’s visual amenity expert, are accepted.
  4. [144]
    Mr Curtis, who appeared to accept that 8 storeys might be appropriate in precinct 2, said 15 storeys was unacceptable from a visual amenity and character perspective.  The reasons that underpin this view can be identified from the AVLJR.  The joint report reveals Mr Curtis concluded the development proposed in precinct 2:
    1. (a)
      significantly exceeds the height of development anticipated in the Low density residential zone and Character residential zone codes;[77]
    2. (b)
      is aligned with building height in the Albion District Centre, east of the rail corridor;[78]
    3. (c)
      is greater in height than that anticipated for the Lutwyche centre and Windsor east precinct of the LRCNPA code;[79]
    4. (d)
      is inconsistent with the planning scheme in that it would appear as significant built form that had ‘jumped’ from the Albion District Centre to the other side of the rail tracks;[80]
    5. (e)
      is of a height and form that is inconsistent with two storey dwellings that represent the predominant character of the area on the western side of the rail corridor;[81]
    6. (f)
      is inconsistent with the character of the low-density residential area to the west, which is separated from the Albion District Centre;[82]
    7. (g)
      would not provide a reasonable gradation of height and bulk between the Albion District Centre and the low-density residential area to the west of the rail corridor;[83] and
    8. (h)
      would diminish the existing sense of place for development to the west of the rail corridor. [84]
  5. [145]
    As I have already observed, there is a difficulty with Mr Curtis’ evidence.  He assumed the underlying zoning of the land is to be treated as indicative of reasonable community expectations about future development intentions for the land.  For reasons given above, I do not accept this is a sound assumption.  This undermines Mr Curtis’ evidence.
  6. [146]
    Mr Curtis also assumed that a 15-storey building within precinct 2 does not comply with the LRCNPA code because it exceeds the height and scale of development anticipated.  Whilst this assumption can be accepted as having application for the version of the planning scheme in force at the time the development application was properly made, that ceased to be the position after May 2020.  This is when the LRCNPA code was amended to remove Overall outcome 7.  The inference to be drawn is that Mr Curtis gave too little weight to the planning scheme amendment.  That he did so meant too little weight was afforded to Overall outcome 3(d) of the LRCNPA code, unconstrained by Overall outcome 7.  It should also be noted that Overall outcome 3(d) is inconsistent with the underlying zoning provisions relied upon by Mr Curtis and, by operation of s 1.5 of the planning scheme, the overall outcome prevails to the extent of any inconsistency.  That is significant given the provision expressly anticipates medium to high density mixed use development on the land; being precisely what it is proposed by the co-respondent’s development application.
  7. [147]
    Putting these matters to one side, I preferred the evidence of Mr Powell, Mr Peabody and Dr McGowan with respect to character and visual amenity issues in any event.  Their evidence properly took into account a number of contextual matters that are important to an assessment of character and visual amenity impacts here.
  8. [148]
    The assessment starts with an acknowledgement of the abrupt change between the built form proposed in precinct 2 and development to the west.  This change was not lost on Mr Powell, Mr Peabody and Dr McGowan.  They each considered the impact of this abrupt change in the context it would occur.  The relevant context includes that: (1) precinct 2 is surrounded by heavy infrastructure (rail and road) and makes a poor contribution to residential amenity to the west; (2) precinct 2 is separated physically and, in character terms, from land to the west; (3) there are no adjoining residential uses with precinct 2; (4) precinct 2 sits within a visual catchment where high density/high rise development can be seen, and will be seen (if approvals are acted upon) to the east, given local topography; and (5) precinct 2 would be intermittently visible from sensitive receptors to the west, set against the background of the Albion District Centre.  I was not persuaded Mr Curtis gave sufficient weight to all of these contextual matters in his assessment.  They are contextual matters that permit a clear distinction, in character and amenity terms, to be drawn between precinct 2 and the area to the west.  This distinction is anticipated by Overall outcome 3(d) of the LRCNPA code (post May 2020).
  9. [149]
    Building height transition and the extent of separation between precinct 2 and development to the west were also matters of context emphasised by Mr Powell and Mr Peabody.
  10. [150]
    With respect to building height transition, Mr Powell and Mr Peabody both helpfully explained how a building of 15 storeys in precinct 2 would be: (1) subservient to precinct 1, and the Albion District Centre; and (2) provide an opportunity to achieve a gradation in building height from the Albion District Centre down to precinct 2, which, in turn, would provide a gradation in building height down to the 4-storey development in precinct 1.  I accept that these matters, taken in combination, will contribute to the achievement of an appropriate building height transition from the centre in the east to the low density residential area west of the land.  It is reflective of the building height being consistent, and compatible, with its surrounds.
  11. [151]
    With respect to the built form separation, I accept the extent of separation between the proposed development in precinct 2 and the surrounding area will be significant.  The plans of development[85] establish that the built form in precinct 2 will have generous setbacks to McDonald Road, Albion Road and Mawarra Street.  This is to accommodate an existing bicycle path.  In addition to the built form setbacks, the precinct will be well separated from houses to the west.  Mr Curtis confirmed precinct 2 is: (1) 57 metres to the rear boundary of the nearest house on Mawarra Street to the north; (2) 75 metres to the nearest house on Mawarra Street to the north; and (3) 50 metres to the nearest house on Albion Road.
  12. [152]
    Each of the matters in paragraphs [148] to [151], taken in combination with Overall outcome 3(d) of the LRNCPA code and the requirements of the Centre or mixed use code and Multiple dwelling code for development to be appropriately articulated (vertically and horizontally),[86] satisfy me the development proposed in precinct 2 will not have an unacceptable impact on visual amenity or character, particularly for the area to the west of the land.
  13. [153]
    Further, I am satisfied that alleged non-compliances with respect to the height of development in precinct 2 do not warrant refusal. More particularly:
  1. (a)
    the matters in paragraphs [148] to [152] comfortably satisfy me that compliance with SO4 and L4 in Table 3.7.9.1 of the Strategic framework[87] has been demonstrated - the development will be of a scale and mass that will achieve an appropriate transition in building height and bulk to the Suburban Living Areas, particularly to the west;
  2. (b)
    the evidence establishes that Overall outcome 2(e) of the Centre or mixed use code,[88] is complied with because the development:
  1. (i)
    will not impact on the development potential of adjoining sites (comprising precinct 1, the rail corridor and Albion Overpass); and
  2. (ii)
    can be conditioned to provide opportunities to enhance permeability, legibility, safety, and convenience for pedestrians and cyclists;[89]
  1. (c)
    with respect to Overall outcome 2(g)(i) of the Centre or mixed use code:
  1. (i)
    the intensity, bulk and scale of the development in precinct 2 is greater than that anticipated in the underlying zoning which, prima facie, is non-compliant with Overall outcome 2(g) of the Centre or mixed use code – for reasons given above, this non-compliance is not determinative;
  2. (ii)
    the intensity, bulk and scale of the development in precinct 2 is consistent with the intended function and spatial arrangement for the Growth Node at Albion, and as articulated in the applicable neighbourhood plans in force at the time of the hearing;
  1. (d)
    the evidence establishes that the development proposed within the building envelope in precinct 2 will be of a bulk and scale consistent with the mixed form and character of the area,[90] including development intended in the Albion Growth Node on a Selected Transport Corridor – this demonstrates consistency with PO20 and PO21 of the Centre or mixed use code and PO5 and PO6 of the Multiple dwelling code;
  2. (e)
    the development proposed in precinct 2 is inconsistent with Overall outcome 2(h) of the Multiple dwelling code because it exceeds the number of storeys prescribed in the underlying residential zones – this is not determinative for the reasons given above; and
  3. (f)
    whilst the development in precinct 2 is inconsistent with Overall outcome 7 of the LRCNPA code in the planning scheme, that inconsistency is not determinative.  The provision no longer forms part of the code.  For reasons given in paragraph [92], this represents a material shift in forward planning, which ought attract significant weight.  The removal of the provision from the code means the development is not fairly regarded as exceeding the height, bulk and scale anticipated in that neighbourhood plan area.

Acceptability of 5 to 8 storey buildings in precinct 4

  1. [154]
    The amended list of issues identifies that the height of buildings in precinct 4 are relied upon as a reason for refusal.
  2. [155]
    This issue is to be examined against the background that the written submissions advanced on behalf of the appellant did not address:
    1. (a)
      why the height of built form in precinct 4 would have an unacceptable visual impact;[91] and
    2. (b)
      the evidence of Mr Curtis at paragraphs 229 and 230 of the AVLJR.
  3. [156]
    At paragraphs 229 and 230 of the AVLJR, the following expressions of opinion are attributed to Mr Curtis:

229 The proposed building heights of 8 and 5-storeys will, with the inclusion of podiums, provide a gradation of height between the District Centre and the neighbouring development to the east. Although appreciably higher than the 2 and 3-storey development along the eastern side of Hudson Road, the increase in the elevation provided by the slope of the land towards the east, the width of the road reserve and the proposed building setbacks will contribute to mitigating the height differential between the two sides of the road.

230 The inclusion of a podium will assist to provide a more human scale interface with the street. However, the length of the podium if not effectively modulated along the street to create separate building forms consistent with the towers, will have an overbearing walling effect to the street that will adversely impact upon the local character and amenity.

  1. [157]
    Mr Curtis confirmed in his oral evidence that the only remaining concern he held with respect to built form in precinct 4 was the possibility of an unbroken contiguous podium.[92]  He indicated in his oral evidence this was a matter that could be addressed by conditions.[93]
  2. [158]
    Conditions proposed in exhibit 7.03 seek to address Mr Curtis’ concern about the built form in precinct 4.  Relevantly, a condition is proposed that would require the following for any podium form in precinct 4 that exceeds 20 metres in length: (1) a recessed 4 metre x 4 metre deep planting zone every 20 metres; or (2) a recessed 4 metre x 8 metre planting zone every 40 metres of street frontage.  Mr Curtis indicated in his oral evidence that a condition of this kind represented an improved outcome, but his ‘preference’ was for physical gaps/separation to be provided between podiums consistent with the breaks in the tower forms above.[94]
  3. [159]
    Having regard to the length of precinct 4 along Hudson Road, being some 415 metres, I accept that an unbroken podium structure for the length of the precinct would be overbearing, and present as a wall of development as described by Mr Curtis.  It is a matter that should be the subject of conditions.  Having regard to the evidence of Mr Powell and Mr Peabody, I am satisfied the conditions proposed in exhibit 7.03, in conjunction with an assessment of future development applications against the Centre or mixed use code or Multiple dwelling code, can satisfactorily address this amenity and character impact.  The conditions and planning scheme will ensure the podium design is appropriately articulated to ensure it does not present as an unbroken wall of built form.
  4. [160]
    Given Mr Curtis’ evidence, and that of his counterparts, the evidence comfortably satisfies me that the height of development proposed in precinct 4 does not warrant refusal.
  5. [161]
    Despite Mr Curtis’ evidence, the appellant maintains the height of development in precinct 4 does not comply with L4 in Table 3.7.9.1 of the Strategic framework, the Centre or mixed use code and the Multiple dwelling code.
  6. [162]
    I am satisfied the alleged non-compliances with these codes do not warrant refusal for the following brief reasons.
  7. [163]
    Having regard to the matters traversed above, I am satisfied compliance has been demonstrated with L4 in Table 3.7.9.1 of the Strategic framework.
  8. [164]
    With respect to the alleged non-compliances with the Centre or mixed use code, reliance is placed upon Performance outcomes PO20, PO21 and PO22.  The evidence establishes compliance with PO20 and PO21, namely that the development will be of a bulk, scale and height that is consistent with the area discussed in paragraphs [7] to [20] and the intent for the Albion Growth Node. PO22 does not apply to the circumstances of this case for the reasons given in paragraph [105].
  9. [165]
    With respect to the alleged non-compliances with the Multiple dwelling code:
    1. (a)
      the development proposed in precinct 4 is inconsistent with Overall outcome 2(h) of the Multiple dwelling code because it exceeds the number of storeys prescribed in the underlying residential zones – this is not determinative of the appeal for the reasons given above;
    2. (b)
      the development complies with Performance outcomes PO5 and PO6 for the same reasons it complies with PO20 and PO21 of the Centre or mixed use code; and
    3. (c)
      P07 does not apply to the proposed development for the reasons given in paragraph [108].

Need

  1. [166]
    The appellant and co-respondent each advanced a need case.
  2. [167]
    The appellant contended there was no demonstrated town planning need as understood in its conventional sense, that is to say, there is no latent unsatisfied demand for the development that cannot be met by the planning scheme in its present form.  The co-respondent advanced a need case founded on two propositions, namely: (1) the need for the proposed development is already reflected in the planning scheme; and (2) the development is, in economic terms, an efficient use of strategically located land.
  3. [168]
    To assist the Court, two economists were called to give evidence; Mr Brown for the appellant and Mr Duane for the co-respondent.
  4. [169]
    Mr Brown undertook a conventional demand and supply analysis for the proposed development.  Whilst accepting the land was well located and attractive for the development proposed, he sought to demonstrate the planning scheme makes adequate provision for the type and scale of uses proposed.[95]  As I understood his evidence, Mr Brown said there was no strong or pressing need to justify the proposed development, which he assumed was inconsistent with the type and scale of development anticipated by the planning scheme.  It can be observed that this assumption was not established for Council’s planning scheme that includes the amendments made in May 2020.
  5. [170]
    Mr Duane opined there is an economic need for the proposed development because it represents a sensible and logical economic use of land no longer required for public infrastructure purposes.[96]  This opinion was founded on quantitative and qualitative considerations, with the latter given considerable weight.  This is reflected in Mr Duane’s response to a question I asked during the course of his oral evidence:[97]

So what is the test then, Mr Duane?---I think the test, your Honour, is a measure …as I understand it, is a net increase in the wellbeing of the community. So the test can’t just be a quantitative test. It has to have qualitative elements to it as well. And…part of that qualitative element refers to economic efficiencies, looking at a site and saying, …“Well, is it appropriate for residential?” And I think Mr Brown has conceded that. …but the height and scale are more planning issues rather than economic issues, …But given this site can only be developed once, and the attribute that it has, I think it should be developed to a reasonable intensity, taking into account those other levels of visual amenity and planning that need to be considered…

And:

…what I’m saying to the court is, from an economic point of view, this is a site that makes sense to develop to a higher intensity, subject to there’ll be other experts who have opinions on how high and visual amenity, but I don’t think just saying that there’s no pressing or immediate need means it has to be to a lower intensity.

  1. [171]
    Whilst I was appreciative of the assistance provided by the economists, even assuming the worst for the co-respondent, the issue of need is not decisive, one way or another, in this appeal.  This is so for a number of reasons.
  2. [172]
    First, there can be little doubt the land is well located to provide transit orientated development.  This form of development, in such close proximity to the Albion railway station, has the potential to improve the community’s well-being.  That community well-being would be enhanced by the proposed development is confirmed having regard to the submissions made during the public notification period. The submissions are overwhelmingly in support of the development.  The weight to be given to this support is considerable, particularly where, as here, the development would not have any unacceptable impacts on character or amenity.
  3. [173]
    Second, I accept Mr Duane’s evidence that the proposed development represents an efficient use of the land in economic terms.  I did not take Mr Brown, or the appellant, to be suggesting otherwise.
  4. [174]
    Third, the planning scheme recognises that the public interest, and community well-being, will be well served through the intensification of development in Growth Nodes on Selected Transport Corridors, such as that proposed here.  The public interest is specifically recognised in, in my view, in Overall outcome 3(d) of the LRCNPA code and Overall outcome 2(a) of the CWDNPA code. 
  5. [175]
    Fourth, the planning scheme does not require the demonstration of a need to develop the land in accordance with the Strategic framework, Overall outcome 3(d) of the LRCNPA code or Overall outcome 2(a) of the CWDNPA code.
  6. [176]
    Fifth, the planning scheme requires the demonstration of a community and economic need where Overall outcome 3(j) of the LRCNPA code is engaged.  This provision applies to precinct 2.  Having regard to the circumstances of this case, the provision is engaged in the planning scheme in force at the time the development application was properly made because development exceeds the type and scale anticipated by Overall outcome 7 of the same code.  If it is assumed that the need test prescribed by Overall outcome 3(j) is not satisfied having regard to the planning scheme in force at the time the application was properly made, this is not decisive.  As I have already observed, Overall outcome 7 was removed in May 2020. The deletion of the provision represents a shift in planning to recognise the need for development of the kind proposed.  The amendment is reflective of this proposition: the planning authority accepts the public interest is better served by more intense urban development on the land than the form, scale and intensity of development contemplated by Overall outcome 7 of the LRCNPA code.
  7. [177]
    It is well established that need is a relative concept that will take on greater or lesser weight depending on the circumstances.[98]  In circumstances where: (1) the land forms part of a Growth Node on a Selected Transport Corridor; (2) transit supportive development, comprising a mix of uses, is promoted within the Growth Node; (3) the development proposed is transit supportive; (4) development is consistent with the kind of urban renewal and intensification anticipated by the Strategic framework, the LRCNPA code (post May 2020) and the CWDNPA code for Albion; and (5) the development can proceed absent any adverse character and amenity impacts; the existence, or absence, of a need, in my view, has a very limited role to play in the exercise of the planning discretion. It is by no means determinative.

Exercise of the discretion – material change of use

  1. [178]
    The appellant did not contend for refusal in relation to the development proposed in precincts 3 and 5.  The material change of use for these precincts will be approved, subject to conditions.
  2. [179]
    As to precincts 2 and 4, I am satisfied the development proposed in these precincts is meritorious and should also be approved.  In short, whilst not complying with the current zoning of the land, the proposed development in these precincts: (1) is consistent with the Strategic framework in the planning scheme; (2) is consistent with Council’s planning intent for the land reflected in the Strategic framework, LRCNPA code (post May 2020) and the CDWNPA code; (3) will not have any unacceptable impacts on character or amenity; (4) will not give rise to any non-compliance with the planning scheme that warrants refusal of the development application; (5) is consistent with planning principle relating to the location of transit orientated development; and (6) is an efficient use of the land in economic terms for reasons articulated by Mr Duane.
  3. [180]
    For completeness, I can indicate that the outcome of the exercise of the discretion would not have changed if it were assumed there was no need for the proposed development as contended by the appellant.  The reasons for this are articulated in paragraphs [171] to [177].

Variations to the planning scheme

  1. [181]
    The second part of the development application is a variation request.  As I observed earlier, when assessing the request, four matters must be considered, namely:
    1. (a)
      the result of the assessment of that part of the development application that is not the variation request; and
    2. (b)
      the consistency of the variations sought with the balance of the local planning instrument that is sought to be varied; and
    3. (c)
      the effect the variations would have on submission rights for later development applications, particularly considering the amount of detail and information included in, attached to, or given with the application and available to submitters; and
    4. (d)
      any other matter prescribed by regulation.
  2. [182]
    With respect to [181](a), the development application seeking a preliminary approval for a material change of use will be approved, subject to conditions.  This part of the assessment for s 61(2) of the Act does not call for refusal of the variations sought by the co-respondent. Rather, it is fairly regarded as supportive of the variation request.
  3. [183]
    With respect to [181](b), the variations sought are inconsistent with zoning provisions, Overall outcomes 3(j) and 7 of the LRCNPA code and associated provisions in the Strategic framework and development codes that reflect the underlying zoning intent.  Given the matters discussed in paragraphs [47] to [55] and [92], I am satisfied this part of the assessment for the purposes of s 61(2) of the Act does not call for refusal of the variations sought by the co-respondent.  The variations will facilitate the achievement of development that advances the planning objectives associated with transit orientated development.  They will do so for land in close proximity to a District Centre and high frequency public transport in circumstances where there will be an absence of unacceptable impacts on amenity and character.  The achievement of this outcome will be consistent with the adopted planning controls in force at the time this appeal was heard.
  4. [184]
    With respect to [181](d), the appellant did not suggest there was a matter prescribed by the Planning Regulation 2017 that called for refusal of the variations sought by the co-respondent.
  5. [185]
    The appellant’s case focused on the extent to which the proposed planning scheme variations would affect submitter rights for later development applications.  This point was a fair one given the variations sought, if granted, would alter the level of assessment for future developments so they are code, rather than impact assessable.  The right to make a properly made submission and accrue an appeal right would be removed by these variations.
  6. [186]
    That the right of submission (and right of appeal) is removed does not, in my view, mean the variations must fail.  The question is whether, in the circumstances, the removal of a right of submission for future development applications is unacceptable, and warrants refusal.
  7. [187]
    The appellant invited the Court to conclude that the variations to the planning scheme ought be refused because: (1) the variations facilitate future development applications being subject to code assessment in circumstances where the scale and intensity of those future uses may not be anticipated by the public, even those aware of the development application;[99] (2) public notification of the development application is now dated –  it occurred in April 2019;[100] (3) the development application provides little certainty as to the actual scale of the uses intended in precinct 2 and their function;[101] and (4) the uses proposed in precincts 2 and 4 could result in adverse planning and amenity outcomes.
  8. [188]
    I do not accept item (1) is a fair criticism. The variations proposed identify the uses and scale of development (within a building envelope) that will trigger code assessment.  The variations also identify the assessment benchmarks that will apply for the assessment of a code assessable application.  If future development is not of the scale or intensity compliant with the conditions of the variation request, and associated material change of use approval (exhibit 7.03), it will trigger impact assessment.  No future rights of submission, or the right of appeal to this Court, would be lost.
  9. [189]
    I accept item (2) has merit, but does not warrant refusal.  This, in my view, is because there are no new planning issues that have arisen since public notification of the application that would call for: (1) further public review and comment; and (2) refusal of the variation request.  Rather, the evidence and history of the matter suggests the nature and extent of planning issues that warrant refusal or modification of the application have been taken into account by the co-respondent (resulting in changes to the development application), or ventilated before this court.
  10. [190]
    I do not accept item (4) has merit.  The uses proposed in precincts 2 and 4 will not result in any adverse planning or amenity outcomes for reasons given above.
  11. [191]
    I accept item (3) has merit.  The issue is whether it warrants refusal of the variation request.
  12. [192]
    I am satisfied it does not warrant refusal.
  13. [193]
    The evidence establishes the development application was publicly notified for 30 business days.  It was also the subject of community consultation over and above that required by the Act.
  14. [194]
    Mr Griffin, who is a director of the co-respondent, prepared a statement for the Court.  His statement establishes the proposed development was the subject of considerable community consultation.  Initial consultation occurred before the development application was lodged.  The nature and extent of that consultation is documented in a stakeholder engagement report.  The report explains how the proposed development was publicly advertised for community consultation.  The community consultation process gave members of the public an opportunity to be informed about the project and provide feedback. 
  15. [195]
    The public campaign conducted by the co-respondent included:
    1. (a)
      a project phone and email enquiry line;
    2. (b)
      the delivery of a two-page community newsletter to 10,000 local residents and businesses in the area surrounding the land;
    3. (c)
      the provision of information to the press about the lodgement of the development application for precinct 1;
    4. (d)
      the conduct of a community focus group and a three-hour community feedback session at Windsor Bowls Club; and
    5. (e)
      the conduct of a community feedback session for tenants and landlords of the Hudson Mill site.
  16. [196]
    In addition to the community consultation referred to in the engagement report, the development application made to Council was publicly notified for 30 business days.  This process provided an opportunity for members of the community to make properly made submissions.  Subject to compliance with requirements of the Act, the making of a submission would have conferred a right of appeal to this Court.
  17. [197]
    To determine whether a properly made submission ought be made in the circumstances, community members had access to the development application. Reference to the application reveals it contained detailed information for consideration about the proposed development.  The material included:
    1. (a)
      a 75-page town planning report that set out the nature of the application, the development that may be achieved pursuant to the preliminary approval and the underlying purpose for the development, being the achievement of transit-orientated development;
    2. (b)
      copies of the proposed precinct plans;
    3. (c)
      a 43-page variation request package that included a development vision and scenarios of different development types that may occur in the different precincts;
    4. (d)
      a traffic impact assessment report; and
    5. (e)
      a preliminary engineering assessment considering all manner of things including civil, hydraulic and electrical engineering aspects of the development.
  18. [198]
    Having regard to the development application, any reasonable member of the public would have been able to discern: (1) the purpose of the application, which was to establish a master plan for future development on the land; (2) the application sought an approval that, if granted, would provide flexibility for the co-respondent to determine the mix of uses on the land over the life of the project; and (3) that, irrespective of the mix and scale of uses proposed, future development would only be code assessable where contained within a prescribed building envelope, and assessed against specific codes in the planning scheme.
  19. [199]
    The public notification process attracted some 233 submissions.  Two hundred and nine of those were in support of the proposal.  The 24 submissions in opposition to the development raised concerns with the height and bulk of the proposed development, potential impacts on amenity, removal of submission rights and traffic and parking impacts.  All these matters were considered for this appeal. 
  20. [200]
    Having regard to the above, I am comfortably satisfied this is a case where the community has been given ample opportunity to examine the proposed development and raise planning issues of concern by way of submission. Submitters who exercised that right also had the opportunity to litigate their concerns about the development in this Court.  This opportunity, if exercised, included the right to be heard about conditions of the kind contained in exhibit 7.03, which provide a flexible framework for the future development of the land.  Once these matters are appreciated, I do not accept the variations sought will unacceptably cut across future rights of submission in a manner that would warrant refusal under s 61(2)(c) of the Act.
  21. [201]
    I am satisfied the variation request should be approved in due course, consistent with the conditions in exhibit 7.03. 

Conclusion

  1. [202]
    For the reasons given above, I am satisfied the development application ought be approved, subject to conditions. 
  2. [203]
    The appeal will be adjourned to 9:00am on 7 April 2022 to allow the parties to agree on the terms of final orders that dispose of the appeal in a manner consistent with these reasons for judgment.

Footnotes

[1]  Precinct 1 does not form part of the development application.

[2]  Ex.7.06 and Ex.8.01.

[3]  T5-58, L27 to T5-59, L13.

[4]  s 43, Planning & Environment Court Act 2016

[5]  s 45, Planning & Environment Court Act 2016.

[6]  AVLJR, Figures 15 to 26.

[7]  AVLJR, Figure 6.

[8]  AVLJR, Figure 15.

[9]  AVLJR, Figure 6.

[10]  Ex.7.08 and Ex.7.01, pp.6 to 12.

[11]  Further written submissions dated 22 February 2022, para 2.

[12]  Ex.7.01, p.9.

[13]  Ex.7.01, p.11.

[14]  Ex.7.01, p.8.

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

[16] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 and Wilhelm v Logan City Council & Ors [2020] QCA 273.

[17]  As defined in Schedule 2 of the Act.

[18]  Ex.7.06 and Ex.8.01.

[19]  For example, Ex.6.01, p.60, SO20 and p.77, S02.

[20]  Such as Overall outcome 2(h) of the Multiple dwelling code.

[21]  The planning rationale for including the land in this zone is reflected in, inter alia, ss 6.2.6.7(1) and 6.2.6.7(4)(a) of the planning scheme.

[22]  In the same sense used by White J in Grosser & Anor v Council of the City of Gold Coast (2001) 117 LGERA 153, 165 at [44].

[23]  s 6.2.1.5(1)(a).

[24]  s 6.2.1.5(4)(a).

[25]  T4-16, L34 to 38.

[26]  For example, ss 6.2.1.5(4)(b), (c), (f) and (g).

[27]  ss 6.2.1.1(1) and (4).

[28]  Ex.2.02, para 134.

[29]  Ex.2.02, paras 128 and 138.

[30]  s 3.1(1).

[31]  Ex 6.01, p.104.

[32]  Ex 6.01, p.120.

[33]  Ex 6.01, p.105.

[34]  Each of these matters are reinforced by Ex.6.01, pp.50 to 51, SO3 and L3.1 to L3.3; p.59, SO15 and L15; and p.63, S06 and L6.1.

[35]  Ex.7.01, p.2, adjacent to item H2.

[36]  T4-61, L39 to 46 and T4-74, L12 to 15.

[37]  T4-74, L17 to 18.

[38]  Ex 6.01, p. 126.

[39]  Ex 6.01, p. 62.

[40]  Ex 6.01, p. 129.

[41]  Ex.2.05, para 91.

[42]  Ex.2.05, para 98.

[43]  Ex.2.05, para 92. This is also consistent with, inter alia, Ex.6.01, p.53, s 3.4.1(1)(i); p.55, SO3 and L3.1 to L3.3; p.56, SO5 and L5.1 to L5.2; p.58, SO12 and L12; and p.60, SO20 and L20.1 to L20.4.

[44]  For example, Ex.2.05, paras 94, 95 and 97.

[45]  T4-51, L36 to 39.

[46]  T5-42, L20 to 28.

[47]  It follows from this concession that the appellant accepts the alleged non-compliances with the Strategic framework are not determinative of the appeal. For reasons given, I am satisfied in any event that no plainly identified inconsistency has been established with the Strategic framework (namely the provisions identified in exhibit 1.06), let alone warrant refusal.

[48]  Ex.2.05, para 61.

[49]  s 7.2.12.4.2(1).

[50]  s 7.2.12.4.2(2).

[51]  Ex. 6.01, p. 196.

[52]  T4-66, L22 to 23.

[53]  Ex. 6.01, p. 201.

[54]  Ex.2.05, para 66.

[55]  Ex 6.01, p. 196.

[56]  Ex 6.01, p. 201.

[57]  See for example the Multiple dwelling code, s 9.3.14.2(2)(h)(iii).

[58]  Ex. 6.01, p.193.

[59]  Ex. 6.01, p.186, s. 7.2.1.2.2(1).

[60]  Ex. 6.01, p.187.

[61]  Appellant’s written submissions (AWS), para 59(a).

[62]  Ex.1.06, paras 1(xi), 8(a)(v) and 8(b)(i).

[63]  Ex.1.06, paras 1(xii), 8(a)(vi) and 8(b)(ii).

[64]  AWS, paras 99 and 100.

[65]  AWS, 102.

[66]  AWS, 102.

[67]  AWS, para 83.

[68]  Ex.7.01, p.2.

[69]  Ex.6.01, p.125, Table 3.7.9.1, SO1.

[70]  Ex.6.01, Table 3.7.9.1, L1.1 and SO3.

[71]  Consistent with L1.2 and L3(c) in Table 3.7.9.1 and Table 3.4.3.1, L1. 

[72]  AWS, para 103.

[73]  Ex.2.05, paras 87 and 104.

[74]  Ex.2.05, paras 87 and 104.

[75]  Ex.2.03, para 16.

[76]  Consistent with Ex.6.01, p.86, SO8 and L8.

[77]  Ex.2.02, paras 90 and 91.

[78]  Ex.2.02, para 91.

[79]  Ex.2.02, para 93.

[80]  Ex.2.02, para 98.

[81]  Ex.2.02, para 101.

[82]  Ex.2.02, paras 96, 112 and 114.

[83]  Ex.2.02, paras 96, 112 and 114.

[84]  Ex.2.02, paras 96, 112 and 114.

[85]  Ex.7.01, p.9.

[86]  By way of example, see the Centre or mixed use code, Overall outcome 2(g)(ii) and PO32  and Multiple dwelling code, Overall outcome 2(k), PO15 and PO17.

[87]  Ex.6.01, p.129.

[88]  Ex.6.01, p.226.

[89]  The development will be conditioned in accordance with exhibit 7.03, which will ensure appropriate setbacks are provided to preserve the ongoing operation of the bicycle path in precinct 2.

[90]  The area includes the Albion District Centre and the features discussed in paragraphs [7] to [20].

[91]  See AWS, paras 109 to 130. The submissions focus on precinct 2.

[92]  T2-76.

[93]  T2-76, L44 to T2-77, L14.

[94]  T2-77, L11 to 29.

[95]  Ex.2.03, paras 188-192, 195-197, 200-201 and 203.

[96]  Ex.2.03, para 202.

[97]  T3-5, L32 to T3-5, L17.

[98] Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350, 354 at [20].

[99]  AWS, para 183.

[100]  AWS, para 185.

[101]  AWS, para 190.

Close

Editorial Notes

  • Published Case Name:

    Cox v Brisbane City Council & Anor

  • Shortened Case Name:

    Cox v Brisbane City Council

  • MNC:

    [2022] QPEC 10

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    24 Mar 2022

Appeal Status

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

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