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  4. Saini and Muhar as Trustees v Redland City Council - [2022] QPEC 45

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Saini and Muhar as Trustees v Redland City Council[2022] QPEC 45

Saini and Muhar as Trustees v Redland City Council[2022] QPEC 45

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Saini and Muhar as Trustees v Redland City Council [2022] QPEC 45

PARTIES:

MANJINDER SINGH SAINI and NAINA MUHAR as TRUSTEES FOR THE SAINI FAMILY TRUST

(Appellants)

v

REDLAND CITY COUNCIL

(Respondent)

FILE NO/S:

267/22

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 November 2022

DELIVERED AT:

Brisbane

HEARING DATES:

1, 2 and 9 September, 2022

JUDGE:

McDonnell DCJ

ORDER:

  1. 1.
    The respondent’s decision to refuse the application is set aside.
  1. 2.
    The appeal is adjourned to enable the parties to agree upon appropriate conditions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of a code assessable development application to reconfigure a lot and an associated development permit for operational works – Whether proposed development would result in appropriate lot sizes and density – Where the proposed development was in a Low Density Residential Zone 

CASES:

Andema Pty Ltd v Noosa Shire Council [2021] QPELR 783

Bell v Brisbane City Council (2018) 230 LGERA 374

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987

Fort Street Real Estate Capital Pty Ltd v Redland City Council [2021] QPLER 1035

Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409

Klinkert v Brisbane City Council [2018] QPELR 941

Lake Maroona Pty Ltd v Gladstone Regional Council (2017) 224 L GERA 166

Redland City Council v King Of Gifts (Qld) Pty Ltd [2020] 3 QR 494

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

COUNSEL:

L Walker for the Appellants

D Whitehouse and K Buckley for the Respondent

SOLICITORS:

Standard Law Co for the Appellants

Redland City Council, General Counsel Group for the Respondent

  1. [1]
    This is an appeal against the decision of the Respondent to refuse a development application for a development permit to reconfigure a lot (one lot into four lots) and an associated development permit for operational works (the Development Application) in respect of land situated at 11-13 Haig Road, Birkdale (the Site).

The Site and the proposal

  1. [2]
    The Site is rectangular and has a total area of 2,003m² with a 54.55 metre frontage to Haig Road.  It falls from the north-east corner to the south-west corner approximately 2.25 metres across the Site.  It is currently improved by a single storey dwelling house.
  2. [3]
    The Appellants propose to reconfigure the Site into four regularly shaped, residential lots as follows:
    1. (a)
      Lot 1 with a proposed area of 500m² and a frontage to Haig Road of 13.624 metres;
    2. (b)
      Lot 2 with a proposed area of 501m² and a frontage to Haig Road of 13.651 metres;
    3. (c)
      Lot 3 with a proposed area of 501m² and a frontage to Haig Road of 13.651 metres; and
    4. (d)
      Lot 4 with a proposed area of 501m² and a frontage to Haig Road of 13.629 metres.

What is the statutory assessment regime?

  1. [4]
    The Development Application and the appeal were lodged after the commencement of the Planning Act 2016 (Qld) (PA) and the Planning and Environment Court Act 2016 (Qld) (PECA).  Accordingly, the appeal is to be assessed and decided pursuant to the provisions of the PA and the PECA. 
  2. [5]
    The appeal is a hearing anew[1] and the Appellants bear the onus of establishing that the appeal should be allowed.[2]
  3. [6]
    As the Development Application is code assessable, the assessment must be carried out only:
    1. (a)
      against the assessment benchmarks in a categorising instrument for the development;[3] and
    2. (b)
      having regard to any matters prescribed by regulation.[4]
  4. [7]
    In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Respondent with directions the court considers appropriate.[5]
  5. [8]
    The decision of the Court must be based on an assessment against the assessment benchmarks.[6]  The decision making for code assessable development is subject to section 60 of the PA, which relevantly provides that:
  1. “(2)
    To the extent the application involves development that requires code assessment...the assessment manager, after carrying out the assessment –
  1. (a)
    must decide to approve the application to the extent  development complies with all of the assessment benchmarks for the development; and
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks;

...

  1. (d)
    may, to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.”[7] 
  1. [9]
    As observed by Williamson QC DCJ in Klinkert v Brisbane City Council, the discretion conferred by this section is “expressed in permissive (“may”) and broad terms”.[8]  The Court of Appeal confirmed this approach in Brisbane City Council v YQ Property Pty Ltd, in which Henry J (with whom Fraser and Morrison JJA agreed), stated that:

“….s 60(2) expressly confers the assessment manager with the discretion to approve the application “even if the development does not comply with some of the assessment benchmarks”.  The inter-play of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with the planning instrument.”[9]

What is the planning framework?

  1. [10]
    The planning scheme in effect when the Development Application was properly made was Version 5 of the Redland City Plan 2018 (the Planning Scheme).  The Planning Scheme is the relevant categorising instrument for the Development Application. 
  2. [11]
    The Planning Scheme mapping identifies the Site in the Low Density Residential Zone (LDR Zone), and specifically within the LDR1 Large Lot Residential Precinct (LDR1 Precinct).  The Development Application did not require referral to a referral agency.
  3. [12]
    The Development Application is subject to assessment against:
    1. (a)
      The Low Density Residential Zone Code (LDR Zone Code); and
    2. (b)
      The Reconfiguring a Lot Code (ROL Code).[10]
  4. [13]
    Section 5.3.3 of the Planning Scheme provides:

“(4) Code assessable development:

  1. (a)
    is to be assessed against all the assessment benchmarks identified in the assessment benchmarks column;

…

  1. (c)
    that complies with:
  1. (i)
    the purpose and overall outcomes of the code complies with the code;
  1. (ii)
    the performance or acceptable outcomes the code complies with the code;complies with the purpose and overall outcomes of the code,”
  1. [14]
    The Respondent submitted, consistently with the approach taken by Everson DCJ in Fort Street Real Estate Capital Pty Ltd v Redland City Council,[11] that the Appellant is only required to demonstrate compliance with the purpose and overall outcomes within the relevant codes to achieve compliance.  If the Development Application complies with the purpose and overall outcome of a particular code, compliance with the performance outcomes and acceptable outcomes need not be demonstrated.  I accept this approach.

What are the issues in dispute?

  1. [15]
    As required by the Practice Direction 2/2020, the parties provided an agreed list of the disputed issues remaining for determination at the commencement of the trial.[12]  The matters in issue were:
  1. Lot size and density – whether the proposed development will result in appropriate lot sizes and density having regard to both the following assessment benchmarks and whether the proposed development:-
    1. (a)
      will result in lot sizes consistent with the density and character of the surrounding established neighbourhood;
    2. (b)
      achieves resulting lots which provide for the establishment of dwelling houses with a high level of amenity and sense of openness;
    3. (c)
      will result in the LDR1 Precinct retaining a very low density residential character; and
    4. (d)
      avoids further fragmentation of land in the LDR1 Precinct;

Identified Assessment Benchmarks

  1. (e)
    Purpose 6.2.1.2(1), Overall Outcomes 6.2.1.2(3)(a)(i) and 6.2.1.2(3)(a)(iv) and Performance Outcome PO20 of the LDR Zone Code; and
  2. (f)
    Overall Outcome 9.3.4.2(2)(a)(i) and PO1 of the ROL Code.
  1. Discretionary matters and conditions – if the Court is satisfied that the Development Application does not comply with one or more of the identified assessment benchmarks, whether conditions can be imposed to achieve compliance or whether the Development Application should be approved having regard to discretionary matters.
  1. [16]
    The provisions of the Planning Scheme relevant to the issues in dispute provide:
    1. (a)
      From the Low Density Residential Zone Code:
  1. Purpose 6.2.1.2(1) – The purpose of the low density residential zone code is to provide for residential areas with a high level of amenity and characterised by dwelling houses on a range of lot sizes which achieve a general sense of openness and low density streetscapes;
  2. Overall Outcome 6.2.1.2(3)(a)(i) – Precinct LDR1: large lot residential: the precinct retains a very low density residential character;
  3. Overall Outcome 6.2.1.2(3)(a)(iv) – Precinct LDR1: large lot residential: lot sizes are not reduced below 2,000m², unless the resultant lots are consistent with the density and character of the surrounding established neighbourhood; and
  4. Performance Outcome PO20 – Reconfiguration maintains the low density large lot, semi-rural or bushland character of precinct LDR1 large lot or precinct LDR2 park residential and avoids further fragmentation of land.  Lots less than 2,000m² in precinct LDR1 and 6,000m² in precinct LDR2 park residential are not created.[13]
    1. (b)
      From the Reconfiguring a Lot Code:

i. Overall Outcome 9.3.4.2(2)(a)(i) – Reconfiguring a lot: creates safe, functional and attractive places that are consistent with the intended outcomes for the zone or precinct in which the land is located; and

ii. Performance Outcome PO1 – Reconfiguration results in the creation of lots that: (1) are of a size and dimensions which facilitate the uses, character and other outcomes intended for the zone or precinct; (2) have practical, generally rectangular shapes; and (3) have a width and depth that can easily accommodate the intended end use, associated infrastructure, on-site open space and vehicular access.”

  1. [17]
    The town planning experts relevantly agreed that:[14]
    1. (a)
      the Planning Scheme provides some opportunity for lots below 2,000m² in the LDR1 Precinct, where ‘the resultant lots are consistent with the density and character of the surrounding established neighbourhood’; and
    2. (b)
      the proposed lots are of sufficient size and dimension to accommodate a dwelling house.
  2. [18]
    The experts disagreed on all other matters relevant to this appeal.
  3. [19]
    The density and character of the LDR1 Precinct and the surrounding established neighbourhood are distinctly separate but central issues in this appeal. 
  4. [20]
    The Respondent took the Court to the Strategic Framework for assistance in understanding the intent of the Planning Scheme.  No provision of the Strategic Framework is nominated as an assessment benchmark.  The Strategic Framework is not called up by the provisions of either the LDR Zone Code or the ROL Code.  The codes are the benchmarks and it is the LDR Zone Code and the ROL Code against which the Development Application is to be assessed.  While the Planning Scheme must be construed as a whole and in its context, the Development Application is not to be assessed against the Strategic Framework.  To the extent clarification is required as to the meaning of the benchmarks assistance may be gained from the other provisions in the Planning Scheme, but that must not be conflated with assessing the Development Application against the Strategic Framework. 

Submissions

  1. [21]
    Despite objection, I allowed the submissions[15] in respect of the Development Application received by the Council to be received into evidence on the basis that they form part of the common material being other submissions about the Development Application that the assessment manager has accepted.[16]
  2. [22]
    I do not accept the Appellant’s position that there is no right to make a submission in respect of a code assessable application, and so the submissions do not form part of the common material. 
  3. [23]
    “Submission” is defined in the PA to mean “a written submission”[17] which may be contrasted with a “properly made submission”.[18]
  4. [24]
    While these submissions are not submissions pursuant to s 53 PA giving rise to rights, they are nonetheless written submissions for the purposes of the PA.  As written submissions which have been accepted by the assessment manager, they form part of the common material and are matters to which regard must be had.[19]
  5. [25]
    The submissions raised issues including that the proposed development does not comply with the Planning Scheme, that it is contrary to community expectations, that it will increase noise generation and traffic impacts, that it will have adverse environmental impacts and it does not have regard to the capacity of existing infrastructure.
  6. [26]
    It is well established that the Planning Scheme may be regarded as a prima facie expression of what constitutes, in the public interest, the appropriate development of the Site.[20]
  7. [27]
    While the views of the submitters were sincerely and genuinely held, they did little to advance the resolution of the issues before this Court.

Will the proposed development result in the LDR1 Precinct retaining a very low density residential character?

  1. [28]
    Pursuant to Overall Outcome (3)(a)(i) of the LDR Zone Code it is necessary to consider whether, if this proposal proceeds, the precinct retains a very low density residential character. 
  2. [29]
    “Retain” is not defined in the Planning Scheme.  I am satisfied that “retain” should be given its ordinary meaning.  The Macquarie Dictionary, 8th Edition defines retain to mean “to keep possession of”. 
  3. [30]
    The phrase “very low density” is not defined in the Planning Scheme, but is used elsewhere in the Planning Scheme, in connection with precincts for LDR1, LDR2 and LDR4.[21]  It can be distinguished from “low density” in the Purpose of the LDR zone code. 
  4. [31]
    Mr Ovenden, in the Town Planning Joint Expert Report (Town Planning JER), took the position that this provision requires that the lots created be of very low density residential character.[22]  That is not the case.  This approach is not consistent with the words of the provision.  The provision does not require that the created lots themselves be of very low density residential character, but that the precinct retain that character.
  5. [32]
    The LDR1 Precinct in which the Site is situated is located on the corner of Haig Road and Birdwood Road.  The Site is one of 16 parcels in this particular LDR1 Precinct, with:[23]
    1. (a)
      10 lots approximately 2,000m² or over;
    2. (b)
      3 lots between 978m² and 1,238m² at the corner of Haig Road and Birdwood Road; and
    3. (c)
      3 lots between 800m² and 819m² at 21 Birdwood Road.
  6. [33]
    Mr Mewing does not consider that the precinct presently has a very low density residential character.  Rather, he says parts of the precinct are able to be characterised as very low density and parts are mixed.  In considering the variability contributing to the mixed character, Mr Mewing considered lot sizes to the north of the site, the lot sizes established at 21 Birdwood Road, the variable frontage and form outcomes to the south of the Site and the different forms of the buildings within the precinct.[24]  In his opinion, if this development proceeds, it will not change the nature of the mixed character.[25]
  7. [34]
    Mr Ovenden took into account the location of the parcels of land of various sizes and the topography within the precinct when considering its character.  He opined that the location of the recently approved subdivision at 21 Birdwood Road sitting “finger like” and separately from the remainder of the precinct meant that these parcels have a limited impact on the character of the precinct.  He did not consider that the three parcels of land in the precinct located at the corner of Haig Road and Birdwood Road compromised the character of the area “so much”.[26]  However, he said that the topography of the Site meant that the new lots would “stand proud”, and that this combined with the fact that, in his view, the Site is embedded in the precinct means this reconfiguration would impact on the character of the precinct.[27] 
  8. [35]
    He opined that the character of this precinct from the Birdwood Road perspective was very low density.[28] 
  9. [36]
    Both experts agreed that the proposed development comprises low density development.[29]  I accept this.   
  10. [37]
    The size of the lots in the precinct are not homogenous.  They presently range in size from 800m² to in excess of 2,000m².  Within the precinct, the lots at either end of Birdwood Road are significantly less than 2,000m², creating pockets where the density is greater than that in the balance of the precinct.  However, over half the lots in the precinct are in excess of 2,000m². 
  11. [38]
    While the precinct contains lots of varying sizes, I consider the precinct overall exhibits residential character which is very low density having regard to streetscape character, the relative proportion of building to open space and boundary setbacks.
  12. [39]
    I accept that if this proposal proceeds the density in the precinct and the density of the Site will increase.  However, that is not the test.  The relevant consideration is whether the precinct retains a very low density residential character.   As agreed by Mr Mewing density is about dwellings per hectare. 
  13. [40]
    If this development proceeds the majority of lots will still be in excess of 2,000m².  As observed below, building form on the created lots will need to comply with the LDR Zone Code and a sense of openness can be achieved.  Accepting, as I do, that the Development Application is for low density development, I am satisfied that the very low density residential character of the precinct will be retained if this development proceeds.
  14. [41]
    I am satisfied that the Appellant has demonstrated compliance with Overall Outcome (3)(a)(i) of the LDR Zone Code.

Will the proposed development result in lot sizes that are consistent with the density and character of surrounding established neighbourhood?

  1. [42]
    This is relevant to Overall Outcome (3)(a)(iv) of the LDR Zone Code which specifically allows lots of less than 2,000m² in the LDR1 Precinct.  However, whether such lots should be allowed requires an examination of the density and character of the surrounding established neighbourhood.
  2. [43]
    A significant issue between the experts was the characterisation of the surrounding established neighbourhood. This disagreement arose in three ways – the determination of the location of the “surrounding established neighbourhood”, the density and character of the neighbourhood so determined, and whether the resultant lots are consistent with that density and character.

What is the surrounding established neighbourhood?

  1. [44]
    Neither the phrase “surrounding established neighbourhood” nor the individual words used in the phrase are defined in the Planning Scheme.  The parties agreed that “established” meant “existing”.  I accept this.
  2. [45]
    The experts agreed that the area comprising a neighbourhood may be perceived differently in different contexts.[30]
  3. [46]
    Mr Mewing considered the surrounding established neighbourhood is that area in Haig Road and Birdwood Road, west of the intersection with Hardy Road.[31] 
  4. [47]
    Mr Ovenden considered the neighbourhood in a three step process.[32]  The first was the immediate local level comprising those parcels of land which adjoin the Site.  His next level comprised those parcels of land in the LDR1 Precinct.  Only at his third level, comprising the walkable catchment of the Site, did he consider Haig Road, outside the Precinct, part of the surrounding established neighbourhood.   
  5. [48]
    I do not accept Mr Ovenden’s first two neighbourhoods for the purposes of this analysis.  His approach excludes from this consideration the land opposite and part of the same streetscape as the Site.  It confined the neighbourhood to land within the Precinct which, in my view, is not supported by the words of the provision, which require consideration of the surrounding established neighbourhood, not the precinct.  Further, I do not accept that a consideration of the character and density of the surrounding established neighbourhood in which a parcel of land is situated excludes from that consideration the land across the road from or within the same streetscape as the relevant site.  I consider Mr Ovenden failed to examine the “surrounding established neighbourhood”. 
  6. [49]
    The Respondent submitted that the “surrounding established neighbourhood” ought at least mean:
    1. (a)
      All of Haig Road, from Pandanus Street through to Bryce Place;
    2. (b)
      All of Birdwood Road, from Haig Road through to Hardy Road; and
    3. (c)
      All battle-axe properties which have access to those carriageways. 
  7. [50]
    The confines of this neighbourhood largely coincide with that proposed by Mr  Mewing.[33]  I accept this is the relevant area for consideration for the purposes of this overall outcome, as it properly allows for the context in which the Site is situated to be considered.  

What is the density and character of the surrounding established neighbourhood?

  1. [51]
    I accept that character is informed by both the streetscape and from the perspective of the residents’ homes.  It is necessary to consider the perspective of the residents of the rear blocks and those with street frontage within the neighbourhood.  Density reflects the number of houses and the size of the lots. 
  2. [52]
    The surrounding residential neighbourhood is, I consider, appropriately described as follows:
    1. (a)
      Land along Haig Road is identified in both the Low Density Zone (not within a precinct) and LDR1 Precinct.  Four lots, including the Site, are located in the LDR1 Precinct and have a direct frontage to Haig Road.  The sites within the LDR1 Precinct with a direct frontage to Haig Road range in size between 978m² and 2,062m² with variable frontage lengths of between 12 metres and 54 metres.  The lot with the greatest frontage to Haig Road is the Site.
    2. (b)
      The lots within the Low Density Zone (not within a precinct) form the remainder of the properties with frontage to Haig Road, comprising 25 lots.  These lots range in size between 416m² and 1,180m², with frontage lengths of between 13.5 and 43 metres.  Directly opposite the Site, the lots range in size from 450m² to 600m². 
    3. (c)
      Haig Road contains predominantly detached dwellings, however 31, 33, 35 and 37 Haig Road (north of Birdwood Road) accommodate dual occupancies.
    4. (d)
      Birdwood Road includes lots in both the Low Density Zone (not within a precinct) and the LDR1 Precinct.  The street is comprised of predominantly detached dwellings, and includes Mary MacKillop Primary School and Mary MacKillop Church.
    5. (e)
      The northern side of Birdwood Road is included in Low Density Zone (not within a precinct) and comprises lots between 739m² and 3,394m².  Only two of these 10 parcels exceed 2,000m².  These larger lots are rear lots and present accessways only to the street.  Frontage widths of the lots are between 20 metres and 27 metres and narrow accessways to the rear lots.
    6. (f)
      The southern side of Birdwood Road is in the LDR1 Precinct and comprises lots between 800m² and 2,014m².  There are rear lots which present narrow accessways to the street.  It is in this area that on 21 August 2021, the Respondent granted a development approval over 21 Birdwood Road (included in the LDR1 Precinct) for the subdivision of the 2,419m² parcel into three residential lots between 800m² and 819m² in size.[34]  Mary MacKillop Primary School and St Mary MacKillop Church are located on the southern side of Birdwood Road. 
    7. (g)
      Marlborough Road, east of Hardy Street comprises land in the LDR1, generally comprises larger lots.[35] 
  3. [53]
    Mr Ovenden’s Figure 2[36] clearly demonstrates that the parcels of land opposite the Site, to the north of the Site in Haig Road, and on the northern side of Birdwood Road are generally smaller residential parcels than contained in the precinct.  This impacts the character and density of the surrounding residential character.
  4. [54]
    Mr Mewing considers the context of the surrounding established neighbourhood can be summarised as follows:

“(a) The established neighbourhood exhibits a mixed density and character.

  1. (b)
    The established neighbourhood does not exhibit a uniform lot size and does not consistently have a lot size greater than 2000m².  Indeed, there is a diversity of lot sizes and the majority of streetscape-facing lots within the established neighbourhood that I have identified, and also more broadly, are well below a lot size of 2000m².
  1. (c)
    There is an increasing density as one travels west in the identified neighbourhood, with the greatest density immediately proximate to the site within Haig Road.
  1. (d)
    Along Haig Road the character and density is predominately lots between 450m² and 600m², with frontages predominately between 15m and 20m, with some lot frontages of 13.5m.  The density is further intensified by a number of dual occupancies on some of the larger lots in Haig Road.
  1. (e)
    Along Haig road there are only three (3) lots, including the subject site, which have a lot size of 2000m² or more.  One of these lots has a narrower frontage of 13m and therefore has a similar streetscape presentation to the Low Density Zone (no precinct) lots along Haig Road.  This is relevant to the streetscape character.
  1. (f)
    Directly opposite the site, the western side of Haig Road is characterised by lots between 450m² and 600m².
  1. (g)
    Birdwood Road, has a greater number of lots that are more than 2000m², however this is a consequence of the rear lots and therefore no contributing to the low density streetscape character.”[37]
  1. [55]
    This analysis by Mr Mewing, in my view, had inadequate regard to the impact of the battle-axe lots on the density and character of the neighbourhood.  Further, in oral evidence Mr Mewing conceded the need to consider amenity and character not just from the streetscape, but also from the perspective of residents from their properties.[38] 
  2. [56]
    As Mr Ovenden observed the battle-axe blocks inform the character of the area, in particular the rhythm in the street and the spacing between buildings.[39]  I consider Mr Ovenden minimised the effect of development on Haig Road and placed too great an emphasis upon the lots within the LDR1 Precinct[40] than is warranted by a consideration of the surrounding established neighbourhood.   
  3. [57]
    The battle-axe blocks inform the character of the streetscape as their presentation to the streetscape is by way of narrow accessways, disrupting the rhythm of the larger parcels which front Birdwood Road.  I accept that they inform the character and density and contribute to openness as perceived by the residents, particularly those occupying or adjoining these rear lots.  However, as rear lots, their contribution to the density and character of the streetscape is limited.
  4. [58]
    Haig Road and the northern side of Birdwood Road impact and inform the density and character of the surrounding established neighbourhood.  The surrounding established neighbourhood is characterised by single dwellings on parcels of land varying in size from 400m² to more than 2,000m², with the effect on character of the 2000 m² lots experienced primarily by those adjoining them.  It contains a diversity of lot sizes and no uniformity.  The density increases travelling west through the neighbourhood, with the greatest density in Haig Road.  The predominant lot size is significantly less than 2,000m². 

Is the proposed development consistent with the density and character of the surrounding established neighbourhood?

  1. [59]
    The term “consistent” is not defined in the Planning Scheme.  In considering its meaning, I respectfully adopt the approach of Bowskill QC DCJ (as her Honour then was) in Lake Maroona Pty Ltd v Gladstone Regional Council.[41]Her Honour found that the word “consistency” ought to be given its natural and ordinary meaning in construing certain provisions of the Sustainable Planning Act 2009 (Qld).  As her Honour observed:
  1. “[16]
    The ordinary meaning of the word “consistency”, as reflected in the Macquarie Dictionary, is “agreement, harmony or compatibility”.  The definition in the Oxford English Dictionary is to the same effect (the “quality, state, or fact of being consistent; agreement, harmony, compatibility (with something, of things, or of one thing with another)”).  “Consistent” is relevantly defined in the former as “agreeing or accordant; compatible; not self-opposed or self-contradictory” and, similarly, in the latter as “agreeing or according in substance or form; congruous, compatible”.

…

  1. [25]
    It seems to me that meaning is, even if only subtly, different from the notion of “conflict”.  In this regard, I respectfully adopt the observation of Sackville J in Flanaghan v Australian Prudential Regulation Authority [2004] 138 FCR 286 at [47] that ‘there is a certain elasticity about the expression” “consistency…with”.
  1. [26]
    In my view, the approach to be taken, under s 388 (1)(a), in considering the consistency of the approval with the current laws and policies, is to consider whether the approved development is compatible with, in a sense of being capable of existing in harmony with, current laws and policies.  This may well be a more flexible concept than the concept of whether the development conflicts with the planning scheme, the consideration required in the primary assessment phase.  Development may still be compatible, even if at variance with some aspect of the planning scheme.”
  1. [60]
    Mr Mewing said consistency does not mean ‘the same as’ and that it enabled some variation.[42]  Mr Ovenden rejected the approach of consistency being synonymous with compatibility, preferring an approach of “complementary” or “not in contrast with’.[43]  As Mr Ovenden adopted a test different to that which I accept, I prefer the evidence of Mr Mewing in this respect.
  2. [61]
    When considering consistency in density, Mr Mewing opined that the proposed lots have a consistency with the parcels in the surrounding established neighbourhood.[44]  
  3. [62]
    I am satisfied that the proposed lots are consistent with the density and character of the surrounding established neighbourhood because:
    1. (a)
      large lots of over 2,000m² are not the predominant lot size in the surrounding established neighbourhood;
    2. (b)
      the surrounding established neighbourhood comprises a mix of lot sizes ranging from 400m² to in excess of 2,000m²; and
    3. (c)
      the character of the surrounding established neighbourhood comprises single dwellings on parcels of land which vary in size across the neighbourhood, with greater density in the west where the Site is located.
  4. [63]
    For these reasons, I am satisfied that Overall Outcome (3)(a)(iv) is met.

Does the proposed development achieve lots which provide for the establishment of dwelling houses with a high level of amenity and sense of openness?

  1. [64]
    This question is relevant in considering the purpose of the LDR Zone Code.  The purpose of the LDR Zone Code will be achieved through the overall outcomes.[45] 
  2. [65]
    Having found that the overall outcomes of the LDR Zone Code are satisfied, the purpose is also achieved.  Thus, it is not necessary to examine the purpose.  However, in the event that I am wrong and the overall outcomes of the LDR Zone Code are not satisfied then whether the purpose is achieved must be examined.
  3. [66]
    The Respondent contended the Appellants fail at the first hurdle, in assessment against the purpose; that not having called a visual amenity expert the Court cannot be satisfied that the Development Application achieves a high level of amenity.
  4. [67]
    However, the purpose requires not an examination of visual amenity but of amenity.  The town planning experts gave evidence on amenity.  This evidence was not challenged as being beyond their expertise.  Town planners are regularly required to consider amenity.  I am satisfied that the planning experts are sufficiently experienced in the consideration of amenity. 
  5. [68]
    Mr Mewing was satisfied that the proposed development would retain a high degree of amenity and a sense of openness.[46]  He considered that the reconfigured parcels of land could have dwellings built on them that would not necessarily impact upon the sense of openness experienced by immediately joining neighbours.[47]
  6. [69]
    Mr Ovenden opined that the proposed development impacts on amenity as it impacts upon openness and character.[48]  He considered that the amenity and openness intended for the Precinct are not achieved by the Development Application.[49] 
  7. [70]
    While expressing concern that a two storey dwelling is inconsistent with the character of the LDR1 Precinct[50]Mr Ovenden acknowledged that:
    1. (a)
      The LDR1 Precinct does not restrict built form to single storey dwellings;[51]
    2. (b)
      Two storey dwellings already exist in this LDR1 Precinct;[52] and
    3. (c)
      A two storey dwelling could be built on the Site now.[53]
  8. [71]
    Any dwelling houses established on the created lots will need to comply with the LDR Zone Code and in particular in relation to built form:
    1. (a)
      PO6 which provides “building have a limited site cover in order to maintain an open, low density character”; and
    2. (b)
      AO6.1 requiring that “Site cover does not exceed 30% of the site area”.
  9. [72]
    Mrs Wheeler expressed concern about the impact on her amenity of four houses being built near her fence.[54]While I accept her concern that the proposed development does not meet her expectations and understanding of the LDR1 Zoned land, I am satisfied that the Development Application satisfies the purpose and the overall outcomes of the LDR Zone Code.
  10. [73]
    As the lots created are low density and the built form on them will need to comply with the LDR Zone Code, I am satisfied that the proposed development will achieve the purpose by providing for residential areas with a high level of amenity and characterised by dwelling houses on a range of lot sizes achieving a general sense of openness and low density streetscape. 
  11. [74]
    I am satisfied that the development proposed achieves the purpose of the LDR Zone Code.

Does this Development Application avoid further fragmentation of land in the LDR1 Precinct?

  1. [75]
    The avoidance of further fragmentation by the reconfiguration is required by PO20 of the LDR Zone Code.  The Development Application does not comply with the quantitative requirement of PO20 as lots less than 2000m² are created, which the Appellants conceded. 
  2. [76]
    Mr Mewing opined that the proposed development does not result in fragmentation of the LDR1 Precinct as he considered fragmentation would only occur if the proposed lot outcome was not consistent with the density and character of the established neighbourhood.[55] 
  3. [77]
    Mr Ovenden opined that the Development Application does not comply with PO20, but acknowledged that despite this, the Planning Scheme does provide a degree of flexibility, with the key precinct specific outcomes requiring retention of the low density residential character and consistency of the lots with the density and character of surrounding established neighbourhood. 
  4. [78]
    Having found that compliance has been achieved with the Purpose and Overall Outcomes of the LDR Zone Code, the Appellants do not need to demonstrate compliance with PO20.[56]  However, I accept that PO20 is relevant to the exercise of discretion.

Are Overall Outcomes (2)(a)(i) and PO1 of the ROL Code met?

  1. [79]
    As the Site is in a precinct this consideration is approached on the basis that Overall Outcome (2)(a)(i) will be satisfied if the intended outcomes of the LDR1 Precinct are satisfied. 
  2. [80]
    Having found that there is compliance with the overall outcomes for the LDR1 Precinct, I am satisfied that the intended outcomes for the Precinct are satisfied and so Overall Outcome (2)(a)(i) is met.
  3. [81]
    The purpose of the ROL Code is not in issue.  As I am satisfied that there is compliance with the overall outcomes of the ROL Code, it is not necessary that the Development Application also satisfy PO1.[57]
  4. [82]
    The experts agreed that the lots are of a sufficient size and dimension to accommodate a dwelling house, in accordance with Overall Outcome (2)(a)(i) and PO1 of the ROL Code.  The lots are rectangular in shape and facilitate the intended use of them for dwelling houses, whilst providing a sense of openness.  Accordingly, I find that PO1 is satisfied. 

Conditions

  1. [83]
    Having found that the Development Application satisfies the assessment benchmarks it is not necessary to consider whether compliance with the benchmarks can be achieved by the imposition of conditions. 

Should the proposed development be approved in the exercise of the court’s discretion?

  1. [84]
    The Appellants having demonstrated that the Development Application complies with all the assessment benchmarks for the development, I must approve the Development Application.  However, if I am wrong and the assessment benchmarks are not met, then I turn to the exercise of discretion.
  2. [85]
    The parties raised five matters relevant to the exercise of discretion:
    1. (a)
      Whether any unacceptable adverse planning consequences would arise from any non-compliance with the identified assessment benchmarks;
    2. (b)
      Whether the proposed development will positively contribute to the diversity and mix of housing choice in the locality;
    3. (c)
      Whether the proposed development is consistent with the pattern of subdivision in the surrounding established neighbourhood;
    4. (d)
      Whether approval of the Development Application will result in any unacceptable adverse impacts upon residential amenity; and
    5. (e)
      Whether the Planning Scheme provides that the large sizes of lots of land in the LDR1 Precinct is preserved.[58]
  3. [86]
    The key principles emerging from the authorities relevant to the exercise of discretion in a code assessable application are:
    1. (a)
      The discretion is expressed as permissive and in broad terms;
    2. (b)
      However, it is bounded by the assessment carried out pursuant to section 45 of the PA;[59] and
    3. (c)
      Not every non-compliance will warrant refusal.[60]
  4. [87]
    While the Development Application does not satisfy the quantitative requirements of PO20 of the LDR Zone Code, the Planning Scheme specifically envisages lots of a range of sizes, including lots less than 2,000m² in the LDR zone and specifically the LDR1 Precinct.
  5. [88]
    If the Development Application does not satisfy the assessment benchmarks, then in the exercise of my discretion I would approve the Development Application.  On the basis of my findings, I am satisfied that:
    1. (a)
      the development will positively contribute to the diversity and mix of lot sizes and housing choice in the locality;[61]
    2. (b)
      the proposed development will promote housing choice and diversity by virtue of its proximity to public open space, schools and public transport;[62]
    3. (c)
      the proposed development is consistent with the density and character, and thus the pattern, of the surrounding established neighbourhood;
    4. (d)
      the proposed development will create lots that are of sufficient size to accommodate a dwelling house;[63]
    5. (e)
      the proposed development will not result in unacceptable adverse impacts on residential amenity;[64] 
    6. (f)
      the Planning Scheme provides opportunity for lots of less than 2000m² in the precinct; and
    7. (g)
      while the proposed lots are less than 2000m² they are consistent with the density and character of the surrounding established neighbourhood and the very low density of the precinct is maintained. 
  6. [89]
    For these reasons, on balance, I am satisfied that the exercise of discretion favours approval of the Development Application.

Conclusion

  1. [90]
    I am satisfied the Appellant has discharged the onus and the Respondent’s decision to refuse the Development Application should be set aside.  The Respondent’s decision will be replaced with an approval subject to conditions.  The appeal is adjourned for the parties to agree upon appropriate conditions.

Footnotes

[1]  PECA s 43.

[2]  PECA s 45(1).

[3]  PA s 45(3)(a).

[4]  PA s 45(3)(b).

[5]  PECA, s 47.

[6]  PA s 59(3).

[7]  PA s 60(2). 

[8]  [2018] QPELR 941, 957 [102]. 

[9]  [2021] QPELR 987 [62].

[10]  Ex. 4, Planning Scheme Extracts, Table 5.5, p 40 -41.

[11]  [2021] QPLER 1035 [9].

[12]  Ex. 1.

[13]  The Respondent noted ‘and not created’ appeared to be a typographical error in the Planning Scheme, and ought read ‘are not created’.  I accept this.

[14]  Ex. 7, Town Planning JER, p 22 [107].

[15]  Ex. 10.

[16]  Definition “common material”, Planning Regulation 2017 (Qld).  There was evidence that the assessment manager had accepted the submissions.  See Ex. 6, p 83.

[17]  PA sch 2.

[18]  PA sch 2.

[19]  PA s 45; Planning Regulation 2017 s 27.

[20] Bell v Brisbane City Council (2018) 230 LGERA 374, [66]; Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409, [67]; Redland City Council v King Of Gifts (Qld) Pty Ltd [2020] 3 QR 494, [161].

[21]  Ex. 4, Planning Scheme Extracts, p 24 at s 3.3.1.3(3); p 47 at s 6.2.1.2(3)(d).

[22]  Ex. 7, Town Planning JER, p 17 [74].

[23]  Ex. 2, Book of Plans, p 16.

[24]  T2-32, ll 25 – 31.

[25]  T2-12, ll 20 – 22.

[26]  T1-46, ll 5 – 7.

[27]  T1-49, ll 17 – 19.

[28]  T1-45, l 45.

[29]  Ex. 7, Town Planning JER, Mr Mewing [43], Mr Ovenden [74].

[30]  Ex. 7, Town Planning JER, Mr Mewing [50] and Mr Ovenden [78]. 

[31]  Ex. 7, Town Planning JER, [49].

[32]  Ex. 7, Town Planning JER, [80] – [82].

[33]  T1-36, ll 14 – 17.

[34]  Ex. 7, Town Planning JER, p 7.

[35]  As can be seen at p 26 of Ex. 7, Town Planning JER.

[36]  Ex. 7, Town Planning JER, p. 26.

[37]  Ex. 7, Town Planning JER, [53].

[38]  T2-25, ll 15 – 30. 

[39]  T1-58, ll 38 – 40.

[40]  T1-36, ll 24 – 27.

[41]  (2017) 224 L GERA 166.

[42]  Ex. 7, Town Planning JER, [56].

[43]  T1-42, ll 30 – 35. 

[44]  T2-31, ll 20 – 22.

[45]  Ex. 4, Planning Scheme Extracts, p 43 s 6.2.1.2(2).

[46]  T2-21, ll 10 – 13; Ex. 7, Town Planning JER, p 19 [21].

[47]  T2-20, 1 22.

[48]  T1-56, ll 22 – 23 and see Town Planning JER, [93].

[49]  Ex. 7, Town Planning JER, [93].

[50]  T1-49, l 45 to T1-50, l 5.

[51]  T1-53, ll 30 – 35.

[52]  T2-33, ll 20 – 30, Ex. 8 Mewing Report, p 14.

[53]  T1-55, ll 16 – 17.

[54]  Ex. 9.

[55]  Ex. 7, Town Planning JER, paragraph [57].

[56]  Ex. 4, Planning Scheme Extracts, p 39 s 5.3.3(4)(c)(i).

[57]  Ex. 4, Planning Scheme Extracts, s 5.3.3(4)(c)(i).

[58]  Ex. 1.

[59] Klinkert v Brisbane City Council [2018] QPELR 941, [102].

[60] Andema Pty Ltd v Noosa Shire Council [2021] QPELR 783, [9].

[61]  Ex. 7, Town Planning JER, p 19 [95]; Mr Ovenden T1-57, l 33.

[62]  Ex. 7, Town Planning JER, p 20 [98].

[63]  Ex. 7, Town Planning JER, p 22 [107e]. 

[64]  Ex. 7, Town Planning JER, p 19 [97].

Close

Editorial Notes

  • Published Case Name:

    Saini and Muhar as Trustees v Redland City Council

  • Shortened Case Name:

    Saini and Muhar as Trustees v Redland City Council

  • MNC:

    [2022] QPEC 45

  • Court:

    QPEC

  • Judge(s):

    McDonnell DCJ

  • Date:

    09 Nov 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Andema Pty Ltd v Noosa Shire Council [2021] QPELR 783
2 citations
Jump To
Cite 1 - [2021] QPELR 783
Cite 2 - [2021] QPELR 783
Bell v Brisbane City Council (2018) 230 LGERA 374
2 citations
Jump To
Cite 1 - (2018) 230 LGERA 374
Cite 2 - (2018) 230 LGERA 374
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Flanagan v Australian Prudential Regulation Authority (2004) 138 FCR 286
1 citation
Jump To
Cite 1 - (2004) 138 FCR 286
Fort Street Real Estate Capital Pty Ltd v Redland City Council [2021] QPLER 1035
2 citations
Jump To
Cite 1 - [2021] QPLER 1035
Cite 2 - [2021] QPLER 1035
Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409
2 citations
Jump To
Cite 1 - (2019) 239 LGERA 409
Cite 2 - (2019) 239 LGERA 409
Klinkert v Brisbane City Council [2018] QPELR 941
3 citations
Jump To
Cite 1 - [2018] QPELR 941
Cite 2 - [2018] QPELR 941
Cite 3 - [2018] QPELR 941
Lake Maroona v Gladstone Regional Council (2017) 224 LGERA 166
2 citations
Jump To
Cite 1 - (2017) 224 LGERA 166
Cite 2 - (2017) 224 LGERA 166
Redland City Council v King of Gifts (Qld) Pty Ltd(2020) 3 QR 494; [2020] QCA 41
2 citations
Jump To
Cite 1 - (2020) 3 QR 494
Cite 2 - (2020) 3 QR 494

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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