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Southway Services No. 2 Pty Ltd v Brisbane City Council[2022] QPEC 8

Southway Services No. 2 Pty Ltd v Brisbane City Council[2022] QPEC 8

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors [2022] QPEC 8

PARTIES:

SOUTHWAY SERVICES NO. 2 PTY LTD (ACN 153 362 460)

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

AND

DENNIS CHEAL

(First Co-respondent by Election)

AND

ELLEN CHEAL

(Second Co-respondent by Election)

AND

NETTA E MORRIS

(Seventh Co-respondent by Election)

AND

ROBERT W MORRIS

(Eighth Co-respondent by Election)

AND

ANNAMARIE NEWTON

(Ninth Co-respondent by Election)

AND

LORIS SUTER

(Twelfth Co-respondent by Election)

FILE NO/S:

993 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

15 March 2022

DELIVERED AT:

Ipswich

HEARING DATE:

6, 7, 9 and 15 September 2021

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST REFUSAL OF A DEVELOPMENT APPLICATION – where the Council refused to grant a preliminary approval for a material change of use for accommodation activities – where the land was in the Low impact industry zone – whether residential use of the land is contrary to the planning scheme intention – whether the variations to City Plan are consistent with the planning scheme – whether the location of the residential use is appropriate – whether the form of residential development is appropriate – whether there will be an unacceptable loss of submission rights – whether the proposed development can be provided without any unacceptable impacts – whether there is a need for retention of the land for low impact industry uses – whether there is a need for residential care facilities and retirement facilities – whether there is a need for student accommodation – whether there is a need for multiple dwellings – whether it is in the public interest to approve the proposed development

LEGISLATION:

City of Brisbane Act 2010 (Qld), s 232

Planning Act 2016 (Qld), ss 8, 43, 45, 59, 60, 61, 229, 288, 311

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

Planning Regulation 2017 (Qld), ss 31, 32, sch 24.

Sustainable Planning Act 2009 (Qld), ss 241, 242, 326

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Adpen Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 59; [2020] QPELR 732, not followed

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

Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, distinguished

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 249, approved

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13, approved

Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; [2009] QPELR 435, approved

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409, distinguished

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

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

Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved

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

Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41, distinguished

Self Storage Helensvale Holdings Pty Ltd v Council of the City of Gold Coast [2021] QPEC 29, approved

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

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

COUNSEL:

C L Hughes QC, M Batty and B Rix for the Appellant
B D Job QC and N Loos for the Respondent

SOLICITORS:

Mills Oakley for the Appellant

Brisbane City Legal Practice for the Respondent

The Co-respondents by Election were self-represented

TABLE OF CONTENTS

Introduction5

What is the applicable framework for the decision?6

What is the nature of the application?9

How does Southway Services characterise the application?10

How does the Council characterise the application?11

What does the evidence demonstrate?11

What information was available to the submitters?11

What further information was provided after public notification?14

What is now sought?14

What is the nature and effect of the development application?18

What issues require determination?21

Is the development of a range of residential uses on the subject land the antithesis of what City Plan intends?22

Are the variations sought consistent with the rest of City Plan?25

What forms of residential growth does City Plan anticipate?26

Where does City Plan intend to accommodate residential uses of the type and density proposed?27

Are the proposed variations consistent with the City Plan provisions regarding the location of the type of uses proposed and the forms of residential development?29

Does the loss of submission rights for future applications support refusal of the proposed development?31

Is there a need for further residential development of the type proposed in this location?32

Does City Plan acknowledge the need for this type of development?33

What was the evidence about the need for residential care and retirement facilities in the locality?34

What was the evidence of demand for residential care facilities?34

What was the evidence of demand for further retirement facilities?36

How does City Plan address the demand for residential care and retirement facilities?38

What was the evidence about the need for the other residential components?39

Conclusion regarding whether there is a need for the proposed development?42

Can the proposed development be provided without any unacceptable impacts?43

Will there be unacceptable bushfire, flooding, or traffic impacts?43

Will there be an unacceptable character and amenity impact?43

Is there a need for the subject land to be retained for low impact industry uses?48

What is the policy with respect to retention of land for industry?48

Is the subject land appropriate for ongoing use for industry?49

Is it appropriate to exercise the planning discretion to facilitate use of the subject land for accommodation activities?52

Conclusion63

Introduction

  1. [1]
    Within the suburb of Nathan, to the east of Toohey Road, there is a discrete pocket of land that is topographically contained by the natural landscapes of Toohey Forest Park, Griffith University (Nathan campus) and Wilcox Park.  The area is accessed via Fairlawn Street.  The dominant use in this discrete pocket is detached dwelling houses.  The area also contains several small-scale duplexes and multiple dwellings of no greater than two storeys in height. 
  2. [2]
    At the entrance to this discrete pocket of land, on the south-eastern corner of Fairlawn Street and Toohey Road, there is a service station, a hotel and liquor barn, an ambulance station, and a neighbourhood centre.  The neighbourhood centre comprises a modern strip of small-scale assorted food outlets, a stand-alone take away food premises, and a building tenanted by a vetinary clinic, medical centre, hairdresser, and a shop. 
  3. [3]
    To the east of the commercial uses and community facilities, on the southern side of Fairlawn Street at 53 Fairlawn Street, Nathan, there is a 68,910 square metre parcel of land (“the subject land”).  Immediately adjoining the eastern boundary of the subject land are 10 lots containing houses and Toohey Forest Park.  The southern boundary of the subject land adjoins bushland that comprises Wilcox Park and part of the Griffith University Nathan Campus.  
  4. [4]
    The landform of the subject land is highly disturbed, having previously been used for a quarry.  The land is currently used for industrial purposes.  It is in the Low impact industry zone under Brisbane City Plan 2014 (“City Plan”).
  5. [5]
    The Appellant, Southway Services No. 2 Pty Ltd (“Southway Services”), seeks to redevelop the subject land for accommodation activities.  To facilitate that, it made a development application to Brisbane City Council (“the Council”).  The development application seeks a preliminary approval for a material change of use for accommodation activities (being dual occupancy, dwelling house, multiple dwelling, residential care facility, retirement facility, and rooming accommodation).  Southway Services also seek to vary the effect of City Plan so that future applications for accommodation activities will not require public notification (“the variation request”).[1] 
  6. [6]
    Numerous residents of the local area objected to the development application.  On 19 February 2019, the Council refused the development application.  The Council notified Southway Services of its decision on 25 February 2019. 
  7. [7]
    On 22 March 2019, Southway Services commenced this appeal against the Council’s decision.  Several residents who objected to the development application elected to join the appeal.  Although some of the residents withdrew prior to the hearing, six remain as active parties to the appeal.  They oppose the grant of a preliminary approval and the proposed variations to City Plan.
  8. [8]
    It is for me to decide whether, in the exercise of the planning discretion, the development application and the variation request should be approved.

What is the applicable framework for the decision?

  1. [9]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies.[2]  In deciding the appeal, the Court must confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[3]
  2. [10]
    The appeal proceeds by way of hearing anew.[4]  Southway Services bears the onus of establishing that the appeal should be allowed.[5]
  3. [11]
    Southway Services made its development application to the Council on or around 21 June 2017.[6]  The development application seeks a preliminary approval under s 241 of the Sustainable Planning Act 2009 for a material change of use for accommodation activities as described in paragraph [5] above.  That type of approval does not authorise the proposed development to proceed.  A development permit is required for that. 
  4. [12]
    Southway Services also seeks a preliminary approval under s 242 of the Sustainable Planning Act 2009.  That type of approval varies the effect of a planning scheme.  Southway Services seeks to vary the effect of City Plan by changing the level of assessment that would be required for future applications for accommodation activities such that future applications for accommodation activities do not require public notification.  This part of the application is to be assessed as a variation request under the Planning Act 2016.
  5. [13]
    There is a broad discretion in determining the appeal.[7]  The exercise of the discretion must be based on an assessment that:[8]
    1. (a)
      must be carried out:
      1. against the assessment benchmarks in City Plan version 6 to the extent relevant;[9]
      2. having regard to, relevantly, any development approval for, and any lawful use of, the premises and adjacent premises and the common material, including properly made submissions about the development application;[10]
    2. (b)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise); and
    3. (c)
      may give such weight the Court considers appropriate to any amendments to City Plan.  In this case, Southway Services says the current version of City Plan should be given weight.[11]
  6. [14]
    The Council submits I should approach the assessment based on the principles about the public interest referred to in Adpen Pty Ltd v Moreton Bay Regional Council & Anor,[12] which cites Gold Coast City Council v K & K (GC) Pty Ltd[13] and Bell v Brisbane City Council & Ors.[14]  I do not accept this approach.  The principles relied on by the Council are at odds with more recent Court of Appeal authority, particularly Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors[15] (“Trinity Park”). 
  7. [15]
    In Trinity Park,[16] Dexus Funds Management Limited and Trinity Park Investments Pty Ltd relied on cases they referred to as the “trilogy”, namely Bell v Brisbane City Council & Ors,[17] Gold Coast City Council v K & K (GC) Pty Ltd[18] and Redland City Council v King of Gifts (Qld) Pty Ltd.[19]  Trinity Park Investments Pty Ltd argued that although the trilogy of cases were decided in the context of s 326(1)(b) of the Sustainable Planning Act 2009, the Planning Act 2016 does not legislate a departure from principles stated in the trilogy of cases, which were said to have a long history in planning law jurisprudence.[20]  Trinity Park Investments Pty Ltd submitted that unless there is a matter of public interest that overrides the public interest in maintaining a planning scheme, the need for a particular form of development should be met on a site that does not give rise to a conflict with the planning scheme.  To approach the assessment otherwise was argued to be an error of law.
  8. [16]
    In considering the argument, the Honourable Justice Brown, with whom the Honourable Justices of Appeal Philippides and Mullins agreed, observed:

[178] The decision of Ashvan Investments Unit Trust v Brisbane City Council, the trilogy and the approach to be adopted in light of s 60 of the Planning Act was recently considered by this Court in the decision of Abeleda v Brisbane City Council.  Mullins JA provided the leading judgment. While the approach set out in the trilogy of cases still has relevance under the Planning Act particularly the fact, as stated by McMurdo JA, that “a planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest the appropriate development of land,” in other respects the approach now to be adopted is quite different. As her Honour carefully set out in her judgment, s 60(3) of the Planning Act no longer incorporates what was described as the two step test and it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.

[179] For the reasons set out by Mullins JA set out in Abeleda, the statements of Sofronoff P, Philippides JA and McMurdo JA and in the trilogy of cases referred to in paragraphs 20 and 21 of the submissions of TPI that it is necessary to demonstrate that it is in the public interest it is necessary to override the scheme as it applies to the land, no longer represent the approach to be adopted under s 45 and s 60 of the Planning Act. As her Honour at [42] stated:

“…..The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any noncompliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.””[21]

  1. [17]
    The written submissions on behalf of the Council made no reference to this appellate court authority, nor to the decisions of the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd,[22] Abeleda & Anor v Brisbane City Council & Anor,[23] or Wilhelm v Logan City Council & Ors,[24] wherein the Court of Appeal endorsed the analysis of His Honour Judge Williamson QC in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[25] 
  2. [18]
    I do not accept the approach urged by the Council or the principles cited from paragraph [48] of Adpen Pty Ltd v Moreton Bay Regional Council & Anor.[26]  The relevant principles are contained in the Court of Appeal authorities referred to in paragraphs [15] to [17] above.
  1. [19]
    As for the legislative framework for the variation request, a variation approval may specify the category of assessment (i.e. code or impact) required for different types of assessable development.  It may set out the assessment benchmarks against which an assessment manager must assess assessable development.  It may only do so in relation to development that is the subject of the variation approval, or development that is the natural and ordinary consequence of the development that is the subject of the variation approval.[27]
  2. [20]
    In deciding the variation request, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.[28]
  3. [21]
    The exercise of that discretion must be based on an assessment that considers:[29]
    1. (a)
      the result of the assessment of that part of the application that sought a preliminary approval for a material change of use;
    2. (b)
      the consistency of the variations sought with the rest of City Plan;
    3. (c)
      the effect the variations would have on submission 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, including the common material.[30]

What is the nature of the application?

  1. [22]
    Ordinarily, the identification of the nature of the development sought in a development application is a matter about which there is no controversy.  Here, there is no dispute that Southway Services seeks a preliminary approval for a material change of use for accommodation activities and a variation approval.  That is where the common ground between the parties ends.  Southway Services and the Council each characterise the application, and the nature of the proposed development, in markedly different terms.  Their characterisation informs their respective approaches to the resolution of the issues in the case.  As such, it is instructive to consider the differences in their characterisation of the proposed development before addressing the substantive issues in dispute.

How does Southway Services characterise the application?

  1. [23]
    Southway Services submits that the proposed development creates a total of five precincts across the subject land comprising:
    1. (a)
      a “2 Storey Precinct (Townhomes)” along the Fairlawn Street frontage, for which there is detailed designs of the 24 proposed attached dwelling units;
    2. (b)
      a “3 Storey Precinct (Apartments)” set behind the townhomes and 30 to 40 metres from Fairlawn Street, in which apartments up to three storeys in height are proposed;
    3. (c)
      a “4 Storey Precinct (Apartments)” in the south-eastern corner of the subject land, furthest from the street frontage, in which apartments up to four storeys in height are proposed;
    4. (d)
      a “4 Storey Precinct (Retirement/Apartments)” in the south-western corner of the subject land, in which aged care and retirement living is proposed in buildings up to four storeys in height; and
    5. (e)
      a park and open space recreation precinct located centrally on the subject land.
  2. [24]
    Southway Services says that the only road access will be to Fairlawn Street, with a primary access in the west and an emergency access more easterly along that same frontage.
  3. [25]
    Development permits are not sought at this stage.  Southway Services says that, accordingly, the associated detailed designs that would accompany a development permit are not available.  Despite that, Southway Services says that the proposed development, if approved, will involve a total of no more than 750 dwelling units across the subject land, comprised of:
    1. (a)
      24 units in the townhomes precinct;
    2. (b)
      350 units in the four-storey retirement/aged care precinct comprised of:
      1. 96 units in a residential aged care facility; and
      2. 254 independent living units in a retirement facility; and
    3. (c)
      up to 376 units spread across the three and four storey apartment precincts.
  4. [26]
    According to Southway Services, the proposed development would provide a range of accommodation options to serve the requirements of:
    1. (a)
      those in need of aged care;
    2. (b)
      those seeking to retire in independent living units within their locality;
    3. (c)
      those seeking to reside close to the employment opportunities and urban facilities nearby;
    4. (d)
      students; and
    5. (e)
      residents generally.
  5. [27]
    Southway Services notes that applications for the necessary development permits in each precinct will need to be assessed and approved having regard to the relevant City Plan codes in force at the time of such applications.  It says this will ensure that such development meets the planning scheme requirements in terms of all relevant design parameters.

How does the Council characterise the application?

  1. [28]
    The Council says the application is for a preliminary approval to vary the effect of City Plan to permit the future development of a mix of residential uses.  It says 24 townhouses across 11 individual buildings are proposed on the Fairlawn Street frontage.  On the balance of the land, the Council says that the application seeks to facilitate some future combination of multiple dwellings, student accommodation and aged independent living and residential care uses.  Precincts for those uses are indicated on Site Plan (SK-03 dated 17 December 2019).  Those precincts indicate building height.  The Council says there is no commitment to building footprints, layouts, uses, development intensity or density, or the arrangement of buildings.
  2. [29]
    The notes to the table of assessment advanced by Southway Services[31] identify the maximum number of dwellings within the nominated precincts.  The Council accepts this.  However, during the hearing, Southway Services confirmed that the table of assessment does not specify a minimum number of dwellings for the identified uses.
  3. [30]
    The Council says the changes sought are such that an application to make a material change of use for a residential care facility and a retirement facility would be code assessable in the precinct identified in red on drawing no. SK-O3 and labelled “4 Storey Precinct (Retirement/Apartments)”.  The Council says an application to make a material change of use for multiple dwellings or rooming accommodation would be code assessable in both the precinct identified in red on drawing no. SK-O3 and labelled “4 Storey Precinct (Retirement/Apartments)” and the precinct identified in blue on drawing no. SK-O3 and labelled “4 Storey Precinct (Apartments)”.  As such, there is no guarantee that the proposed development will incorporate any residential care facility or retirement facility. 

What does the evidence demonstrate?

  1. [31]
    To properly assess the development application, including that part that seeks to change the effect of City Plan, it is critical to understand the details of the application.  As I have already noted in paragraph [21](c) above, the exercise of my discretion with respect to changes to the effect of City Plan must be based on an assessment that considers, amongst other things, the amount and detail of information included in, attached to, or given with the application and available to submitters.[32]

What information was available to the submitters?

  1. [32]
    IDAS Form 1 describes the nature of the development as “Material change of use” and the approval sought as “Preliminary approval under s 241 and s 242 of SPA”.  The proposed development is described on the form as “Preliminary Approval under s 242 to vary the effect of the local planning instrument. Refer to the attached planning report for further information”.
  2. [33]
    Item 1 of the mandatory requirements part of IDAS Form 5 (Material change of use assessable against a planning scheme) describes the proposed use as “Accommodation Activities”, referring to the City Plan definitions of dual occupancy, dwelling house, multiple dwelling, residential care facility, retirement facility and rooming accommodation.  The column headed “no. of dwelling units (if applicable)” is blank.
  3. [34]
    The description of the proposed development on IDAS Form 31 (Application for preliminary approval varying the effect of a local planning instrument) mirrors that on Form 1.  In terms of how the application seeks to vary the effect of City Plan, the form states “Refer to Section 7.1.1 of the attached planning report”.
  4. [35]
    The Planning Report describes the proposed development as “Preliminary Approval To vary the effect of a local planning instrument under s 242 of SPA 2009”.  It also notes that as the preliminary approval will not authorise development to occur, the approval will establish code assessable uses for subsequent material change of use applications.  The Executive Summary identifies levels of assessment by reference to an attached “Height Precinct Plan”.
  5. [36]
    The Planning Report indicates that the possible uses on the subject land include multiple dwellings and rooming accommodation and that the approval sought also allows for uses including a residential care facility and retirement facility.  In response to strategic outcome L3.2, the Planning Report states that “the location or amount of ‘residential care facility’ and ‘retirement facility’ buildings is unknown”.[33]
  6. [37]
    Section 7.1.1 of the Planning Report (which is expressly referenced on the IDAS forms) includes a proposed level of assessment table and indicates that “[t]he table treats the subject site like low-medium density residential land”.[34]
  7. [38]
    The Planning Report identifies that the proposed development does not include specific building envelopes or locations.  Rather, approval is sought for “only the ‘Height Precinct Plan’” and the “remainder of plans provided in Appendix B are indicative only, providing guidance for Council on one example of maximum code assessable development on the subject site”.[35]  Each of the proposal plans contains a stamp confirming that the plans are indicative only and that future development would require additional approvals.
  8. [39]
    The Economic Impact Assessment lodged with the development application describes the development proposal as “a mix of residential uses potentially comprising retirement, or apartment living options, with the anticipated mix yet to be refined”.[36]  That report notes that “[p]reliminary concepts envisage catering for a diverse demographic which could potentially include students, retirees, couples and families and will be subject to further indepth (sic) market analysis”.[37]
  9. [40]
    The Traffic Engineering Report that accompanied the development application describes the proposed development as a large-scale mixed-use development that has the opportunity to provide a combination of uses including low-medium density residential, rooming accommodation, residential care facility, retirement facility, care taker’s accommodation and dual occupancy dwellings.  For the purposes of the traffic assessment, the traffic consultant assumed a maximum yield of 600 dwellings.[38]
  10. [41]
    During the application process, the Council sought further information.  The Council’s information request sought detailed parameters for when development would be code assessable on the subject land, and greater detail for siting, built form, communal open space, and buffer parameters.  The response to the request for built form details says:

“It is not considered appropriate for the type of preliminary approval proposed to provide detailed built form design, given this will ultimately be determined by the future use and relevant associated codes in the assessment criteria”.[39]

  1. [42]
    In terms of siting, the response says:

“Similar to the discussion on built form above, the siting of a building will also be subject to the specific location onsite ... This, however, cannot be determined without detailed architectural design.  Given the preliminary approval does not seek to include specific building envelopes or locations for development inside each precinct, this is not provided as part of this application”.[40]

  1. [43]
    The Council’s information request also sought an anticipated dwelling density across the subject land.  The response states that:

“As the preliminary approval includes the possibility for a number of residential uses and variety of heights as code assessable, an “expected breakdown” of anticipated density is not able to be provided for the site.  Subsequent development applications will determine the mix …”.[41]

  1. [44]
    The response went on to suggest that a density range between 600 and 750 units might be achieved.  The series of plans which form part of the response to the information request are also stamped as indicative only.
  2. [45]
    Public notification was carried out between 22 November 2017 and 24 January 2018.  The public notice described the development application as one for “preliminary approval under s 242 - Accommodation Activities (Dwelling House, Dual Occupancy, Multiple Dwelling, Retirement Facility, Residential Care Facility and Rooming Accommodation)”. 
  3. [46]
    The Council received 76 properly made submissions about the development application.  The submissions reveal community opposition to development of the density proposed.  One of the submissions was a petition signed by 82 community members opposing the development, some of whom also lodged properly made submissions.  Several submissions state that the application does not include sufficient detail on the development.  A map showing the addresses of most of the submitters illustrates that there was opposition to the proposed development from across the discrete residential area to the north and east of the subject land. 

What further information was provided after public notification?

  1. [47]
    Following public notification, the Council wrote to Southway Services about what it considered were unresolved matters, including how the proposed densities achieve the intentions of the Low-medium density residential zone in terms of building heights and scale.[42] 
  2. [48]
    Southway Services responded.[43]  Part of the response referred to the subject land being “designated for low-medium density residential”.[44]  It also referred to “[t]he proposed maximum density of 750 dwellings”.[45]  When addressing a summary of the issues raised by the submissions, in respect to the issue “Lack of Information Provided”, the response states:

“A number of submissions outlined that the proposal did not include sufficient detail on the development.  The information provided is sufficient for the type of application this is, being a preliminary approval.  In this regard we note:

  • This approval does not allow any construction to occur onsite.
  • It does not include the approval of any specific buildings or locations of buildings, but rather a number of uses and location of height precincts for future applications to be lodged over the site.
  • Any use ultimately approved within this ‘preliminary approval’ does not mean that all will be applied for or constructed onsite.
  • The preliminary approval will be in place on the site for ten (10) years and does not immediately change the underlying Low Impact Industry zoning.”[46]

What is now sought?

  1. [49]
    On the third day of the hearing, Southway Services applied to make a minor change to its development application to permit it to include notes after the proposed table of assessment.  This application was unopposed.  On 9 September 2021, I ordered that the hearing proceed on the development application so changed.  The document that identifies the proposed variations is in the following terms:

TABLE OF ASSESSMENT

MATERIAL CHANGE OF USE – 2 STOREY TOWNHOMES AND DETACHED HOUSES PRECINCT

Use

Level of Assessment

Assessment Criteria

Dual Occupancy

Code Assessment

If development is a maximum of 2 storeys and 9.5m above NGL.

  • Low-Medium Density Residential Zone Code (2 Storey Mix)
  • Dual Occupancy Code
  • Filing (sic) and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Stormwater Code
  • Transport.  Access.  Parking and Servicing Code (sic)
  • Waste Water Code

Dwelling House

Self-Assessment

If complying with all self-assessable acceptable outcomes

 

Code Assessment

If not complying with all self-assessable acceptable outcomes

  • Low-Medium Density Residential Zone Code (2 Storey Mix)
  • Dwelling House Code

Multiple Dwelling

Code Assessment

If development is a maximum of 2 storeys and 9.5m above NGL.

  • Low-Medium Density Residential Zone Code (2 Storey Mix)
  • Multiple Dwelling Code
  • Filing (sic) and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Park Planning and Design Code
  • Stormwater Code
  • Transport, Access, Parking and Servicing Code
  • Waste Water Code

MATERIAL CHANGE OF USE – 3 STOREY APARTMENT PRECINCT

Use

Level of Assessment

Assessment Criteria

Dual Occupancy

Code Assessment

if development is a maximum of 3 storeys and 12m above NGL.

  • Low-Medium Density Residential Zone Code (Up to 3 Store) (sic)
  • Dual Occupancy Code
  • Filling and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Stormwater Code
  • Transport, Access, Parking and Servicing Code
  • Waste Water Code

Dwelling House

Self-Assessment

If complying with all self-assessable acceptable outcomes

 

Code Assessment

If not complying with all self-assessable acceptable outcomes

  • Low-Medium Density Residential Zone Code (Up to 3 Storevs) (sic)
  • Dwelling House Code

Multiple Dwelling

Code Assessment

If development is a maximum of 3 storeys and 12m above NGL.

  • Low-Medium Density Residential Zone Code (Up to 3 Storeys)
  • Multiple Dwelling Code
  • Filling and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Park Planning and Design Code
  • Stormwater Code
  • Transport, Access, Parking and Servicing Code
  • Waste Water Code

Rooming Accommodation

Code Assessment

If development is a maximum of 3 storeys and 12m above NGL.

  • Low-Medium Density Residential Zone Code (Up to 3 Storevs) (sic)
  • Rooming Accommodation Code
  • Multiple Dwelling Code
  • Filling and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Stormwater Code
  • Transport, Access, Parking and Servicing Code
  • Waste Water Code

MATERIAL CHANGE OF USE – PARK RECREATION PRECINCT

Use

Level of Assessment

Assessment Criteria

Communal Open Space

-

-

MATERIAL CHANGE OF USE – 4 STOREY RETIREMENT PRECINCT

Use

Level of Assessment

Assessment Criteria

Residential Care Facility

Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

  • Medium Density Residential Zone Code
  • Multiple Dwelling Code
  • Residential Care Facility Code
  • Childcare Centre Code
  • Filling and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Park Planning and Design Code
  • Stormwater Code
  • Transport. Access, Parking and Servicing Code (sic)
  • Waste Water Code

Retirement Facility

Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

  • Medium Density Residential Zone Code
  • Multiple Dwelling Code
  • Residential Care Facility Code
  • Childcare Centre Code
  • Filling and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Park Planning and Design Code
  • Stormwater Code
  • Transport. Access, Parking and Servicing Code (sic)
  • Waste Water Code

MATERIAL CHANGE OF USE – 4 STOREY APARTMENT PRECINCT

Use

Level of Assessment

Assessment Criteria

Multiple Dwelling

Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

  • Medium Density Residential Zone Code
  • Multiple Dwelling Code
  • Filling and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Park Planning and Design Code
  • Stormwater Code
  • Transport. Access, Parking and Servicing Code (sic)
  • Waste Water Code

Rooming Accommodation

Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

  • Medium Density Residential Zone Code
  • Rooming Accommodation Code
  • Multiple Dwelling Code
  • Filling and Excavation Code
  • Infrastructure Design Code
  • Landscape Work Code
  • Outdoor Lighting Code
  • Stormwater Code
  • Transport. Access, Parking and Servicing Code (sic)
  • Waste Water Code

Notes:

  1. 1.The above uses are defined pursuant to CityPlan (sic) 2014 (Version 6).
  1. 2.Uses not referred to in the Table of Assessment for a particular precinct are not contemplated by this development approval and are instead regulated by CityPlan (sic) 2014.
  1. 3.The assessment criteria (as nominated in the Table of Assessment) that are to apply to future development applications made under this development approval are the relevant CityPlan (sic) 2014 codes referred to (or their equivalent code as at the date of lodgment (sic) of any further development application).
  1. 4.Communal open space does not have a prescribed level of assessment as the proposed communal open space would be accepted development under CityPlan (sic) 2014.
  1. 5.This development approval provides a maximum of 750 dwellings for the following proposed uses:

a. Multiple dwellings and duplexes in the 2 storey townhouse precinct: 24 attached townhouses;

b. Retirement facility within the 4 storey retirement/apartment precinct: 254 dwellings;

c. Residential care facility within the 4 storey retirement/apartment precinct: 96 dwellings;

d. Balance of dwellings not to exceed 376 in the 3 storey apartment and 4 storey apartments precincts.

  1. 6.Paragraphs 1, 2, 3 and 5 above can be made conditions of the approval.”

What is the nature and effect of the development application?

  1. [50]
    As is evidenced by the matters referred to above, the part of the development application that seeks a preliminary approval for a material change of use is almost devoid of detail.  The change of use for which a preliminary approval is sought is a change from the current industrial use of the subject land to:
    1. (a)
      a use that includes 24 townhouses in 11 buildings fronting Fairlawn Street with a built form that is generally in accordance with that shown on the proposed plans;[47] and, otherwise
    2. (b)
      in an area of the subject land that is set behind the townhouses and about 30 to 40 metres from Fairlawn Street, a use that may include dual occupancies, or dwelling houses, or multiple dwellings, or rooming accommodation, or a combination of those uses, where the associated built form is a maximum of three storeys in height and 12 metres above natural ground level;
    3. (c)
      in an area in the south-eastern corner of the subject land, furthest from the street frontage, a use that may include multiple dwellings or rooming accommodation, or a combination of those uses, where the associated built form is a maximum of four storeys in height and 15 metres above natural ground level;
    4. (d)
      in an area in the south-western corner of the subject land, a use that may include multiple dwellings, or rooming accommodation, or residential care facilities, or retirement facilities, or a combination of those uses, where the associated built form is a maximum of four storeys in height and 15 metres above natural ground level; and
    5. (e)
      a park and open space recreation precinct located centrally on the subject land.
  2. [51]
    It is apparent from Note 2 that the proposed table of assessment is intended to operate in conjunction with the table of assessment for material change of use in the Low impact industry zone, rather than replacing it.  As such, the grant of the variation approval would increase the range of uses that could be approved without an impact assessable application.  The variations do not change the level of assessment for those uses currently contemplated in the Low impact industry zone, such as car wash, emergency services, low impact industry, and medium impact industry uses.[48]
  3. [52]
    The Notes to the proposed table of assessment do not identify which document defines the “precincts” referred to in the table.  Southway Services tendered 14 plans that it says form part of its application.  Of the 14 plans, only two contain precinct descriptions that bear some resemblance to those contained in the proposed table of assessment.  They are drawing no. SK-02 and drawing no. SK-03.
  4. [53]
    Drawing no. SK-02 is titled “BUILDING HEIGHT PLAN”.  It depicts coloured building blocks and a street layout.  The legend indicates that the coloured building blocks are two, three and four levels above natural ground level.  A note on the drawing says:

“With the exception of the 2 storey townhomes and detached houses precinct, built form is indicative only.”

  1. [54]
    Overlaid on the drawing is a reference to “precincts”, but there are no boundaries for the precincts.  Given the absence of boundaries, it seems reasonable to infer that this is not the plan that defines the precincts for the purpose of the proposed table of assessment.
  2. [55]
    Drawing no. SK-03 is titled “HEIGHT PRECINCT PLAN”.  That plan contains several red dotted lines that divide the subject land into distinct areas, including:
    1. (a)
      an area immediately adjoining Fairlawn Street, located approximately 40 metres from the western boundary and proximate to the bend in Fairlawn Street, that is hatched red and identified in the legend as “FIXED ACCESS ZONE”;
    2. (b)
      three areas coloured white and marked “ENTRANCE”, “PEDESTRIAN ACCESS” and “FUTURE LINK” respectively;
    3. (c)
      an area along the Fairlawn Street frontage that is coloured purple and marked “2 STOREY PRECINCT (TOWNHOMES)”;
    4. (d)
      an area coloured yellow and marked “3 STOREY PRECINCT (APARTMENTS)”;
    5. (e)
      an area central to the subject land that is coloured green and marked “PARK RECREATION PRECINCT”;
    6. (f)
      an area towards the south-eastern corner of the subject land that is coloured blue and marked “4 STOREY PRECINCT (APARTMENTS)”;
    7. (g)
      an area towards the south-western corner of the subject land that is coloured red and marked “4 STOREY PRECINCT (RETIREMENT / APARTMENTS)”;
    8. (h)
      an area along the southern and eastern boundaries that is cross hatched with red and green and marked “NO BUILD ZONE”; and
    9. (i)
      an area along the western boundary that is hatched green but not marked by any descriptor.
  3. [56]
    The descriptions on this plan roughly correlate to those used in the table of assessment.  As such, although there is no note confirming that the proposed table of assessment is to be read in conjunction with this drawing, it is reasonable to infer that it should be (particularly given the absence of any other drawing that might assist).
  4. [57]
    In addition, it is implicit in the variation request that approval is sought to vary s 5.3.1 of City Plan so that the process for determining the level of assessment includes reference to the proposed table.
  5. [58]
    In those circumstances, I accept the Council’s characterisation of the effect of the variation request.[49]  The grant of a preliminary approval and a variation approval would facilitate future development of the land for residential purposes.  However, I do not accept Southway Services’ submission that the proposed development would provide a range of accommodation.  It might, but it might not.  Approval of the variation request would facilitate development for the range of accommodation options relied on by Southway Services.  It would equally facilitate redevelopment of the subject land only for multiple dwellings, making no provision for those requiring aged care, those seeking to retire in independent living units within their locality, or students. 
  6. [59]
    The impact of the degree of uncertainty on the assessment of the proposed development and the exercise of the planning discretion is discussed throughout, and particularly at paragraphs [246] to [254] below.
  7. [60]
    Having regard to the nature of the development application, I do not accept the Council’s assertion, in its reasons for refusal, that approval of the development application would result in loss of industrial land.[50]  I also do not accept the Council’s assertion that approval will not preserve opportunities for low impact industry.[51]  The grant of a variation approval would not remove the subject land from the Low impact industry zone,[52] nor preclude the continued opportunity to develop in accordance with the planning intent for that zone.  That said, I accept that the grant of a preliminary approval and a variation approval would more readily facilitate various forms of residential development on land designated for industrial (and other related or complementary) uses.  As such, it would enhance the prospect that the subject land will be given over to a residential use and, in that respect, it is inconsistent with the planning intent for the subject land.  This is conceded by Southway Services.[53]

What issues require determination?

  1. [61]
    On the final day of the hearing, the Council tendered a document titled “Issues for Determination”.[54]  The document is seven pages in length.  For reasons not explained, the document does not reflect the concessions made by Southway Services in correspondence sent to the Council on 7 September 2021.[55]  As such, the Council’s document does not accurately represent the issues that require determination.
  1. [62]
    Having regard to Southway Services’ concessions,[56] and the matters identified in paragraphs [50] to [59] above, the real issue in dispute between the parties is whether, in the exercise of the Court’s discretion, it is appropriate to facilitate use of the subject land for accommodation activities. 
  2. [63]
    The matters that inform the respective positions of Southway Services and the Council on that issue are conveniently summarised by each of them in the first few pages of their written submissions.  The issues raised by them can be distilled into the following seven questions:
  1. Is the development of a range of residential uses on the subject land the antithesis of what City Plan intends?
  2. Are the variations sought consistent with the rest of City Plan?
  3. Does the loss of submission rights for future applications support refusal of the proposed development?
  4. Is there a need for further residential development of the type proposed in this location?
  5. Can the proposed development be provided without any unacceptable impacts?
  6. Is there a need for the land to be retained for Low impact industry uses?
  7. Is it appropriate to exercise the planning discretion to facilitate use of the subject land for accommodation activities?

Is the development of a range of residential uses on the subject land the antithesis of what City Plan intends?

  1. [64]
    That part of the development application that seeks a material change of use is impact assessable.  It is to be assessed against the whole of City Plan, to the extent relevant.[57] 
  2. [65]
    As I have already noted in paragraph [50] above, the development application is almost devoid of detail about the proposed use.  Of itself, the absence of a detailed design is not remarkable given what is sought is a preliminary approval only.  However, in this case, the significance of the lack of detail is twofold. 
  3. [66]
    First, it is difficult to reliably assess the proposed development against those finer-grained assessment benchmarks that focus on the potential impacts of a development.  For example, absent more details about the parameters of the development proposed for the subject land, it is not possible to reliably ascertain the extent of traffic or the car parking demand that might be generated by the proposed development, or to assess the likely impacts of the development against the assessment benchmarks set in City Plan. 
  4. [67]
    Second, as there are no design details, the focus of the assessment against the assessment benchmarks will be on the broader issue of the acceptability, in general terms, of the proposed land uses.
  1. [68]
    When assessing the acceptability of the proposed land uses, the applicable zone code is a useful starting point.  This is because City Plan uses zones to organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.[58] 
  1. [69]
    Here, the subject land is in the Low impact industry zone.  The Low impact industry zone code articulates the planning intent for land in that zone.  The purpose of the code is to provide for warehouse, service industry and low-impact industry uses.  The code also anticipates use of land in the zone for non-industrial and business uses that support industrial activities, provided they do not compromise the long-term use of the land for industrial purposes.[59] 
  2. [70]
    The local government purpose of the code includes implementation of the policy direction set in the strategic framework.  There are five themes that set the policy direction.[60]  Collectively, they represent the vision for Brisbane.  City Plan sets out strategic outcomes across the five themes, which are then supported by more detailed provisions in the balance of City Plan. 
  1. [71]
    The Low impact industry zone code refers to the policy in:
    1. (a)
      Theme 1: Brisbane’s globally competitive economy, Element 1.2 – Brisbane’s industrial economy and Element 1.3 – Brisbane’s population-serving economy; and 
    2. (b)
      Theme 5: Brisbane’s CityShape, Element 5.2 – Brisbane’s Major Industry Areas.[61]
  2. [72]
    Theme 1 relates to Brisbane’s globally competitive economy.  City Plan intends that Brisbane’s industrial economy is a significant generator of employment and economic growth for the city.[62]  Although the industrial economy is intended to be largely contained in the Major Industry Areas,[63] there is also provision for pockets of low-impact industrial services areas appropriately located around the city to effectively service business and residents.[64]  The opportunities for low impact industry throughout the city are to be preserved to support a strong population and economic growth.[65]  The specified land use strategy to achieve that outcome is:

Industrial premises in the Low impact industry zone or General industry A zone precinct of the Industry zone are protected from encroachment and incompatible uses”.[66]

  1. [73]
    Theme 5 relates to Brisbane’s “CityShape”.  As is noted in paragraph [71](b) above, Element 5.2 relates to Brisbane’s Major Industry Areas.  It contains policy of note for land in the Low impact industry zone.  However, it is of little relevance in this case as the subject land is mapped as part of the Suburban Living Areas and not as part of the Major Industry Areas. 
  2. [74]
    The local government purpose of the Low impact industry zone code is also to facilitate and maintain the long-term viability of industrial uses by excluding incompatible development and encouraging a broad range of industry that is compatible with adjacent residential areas.[67]
  3. [75]
    The purpose of the code is sought to be achieved through the overall outcomes. 
  4. [76]
    Overall outcomes (3)(a) and (b) of the Low impact industry zone code reinforce the planning intention to ensure land in the zone is used for industrial purposes.  They encourage development of land throughout the Low impact industry zone for low impact industry uses, service industry uses and warehouses.[68]  Medium impact industry uses are also encouraged, provided they are located at an appropriate distance from sensitive uses, and provided they avoid or minimise noise and air emissions to meet noise and air quality criteria at sensitive zones.[69] 
  5. [77]
    In addition to encouraging industrial uses, the overall outcomes contemplate use of the land in the Low impact industry zone for a use that is ancillary to an industrial use on the same site, such as an office function, or small-scale shop or food and drink outlet that directly supports the industry and workers.[70]  Development for a stand-alone office is expressly discouraged.[71] 
  6. [78]
    Other overall outcomes focus on the intention to facilitate and maintain the long-term viability of industrial uses.  As is suggested by the purpose statement, two planning strategies are employed towards that end.  The first focuses on excluding incompatible uses.[72]  The second strategy seeks to ensure issues associated with the interface between industry and adjacent residential areas (or other non-industrial land) are appropriately addressed.  With respect to the latter strategy, the overall outcomes require separation for sensitive uses to minimise the likelihood of environmental harm or environmental nuisance;[73] and require development to be located, designed, and managed to minimise impacts and contribute to a high standard of amenity.[74]
  7. [79]
    Consistent with the intent of the zone, under the Table of assessment for the Low impact industry zone, a development application for Low impact industry, Medium impact industry, Research and technology industry and Service industry is either self assessable or code assessable.
  1. [80]
    Development for residential uses is neither expressly encouraged nor expressly discouraged in the Low impact industry zone code.  Nevertheless, Southway Services acknowledges that approval of its development application would facilitate various forms of residential development on land that is designated for industrial and other related or complementary uses.  Southway Services accepts that, in those circumstances, approval of the development application would not ensure the preservation of opportunities for low impact industry uses.[75]  It accepts that this is contrary to the evident planning intention to facilitate, and maintain the long-term viability of, industrial uses on land in the Low impact industry zone.  Southway Services concedes that it is also contrary to the planning goal in specific outcome SO7 in element 1.3 of the strategic framework.[76]
  1. [81]
    For the reasons provided above, I am satisfied that the proposed use of the subject land for accommodation activities is contrary to key provisions of City Plan that indicate the planning intent for the land.

Are the variations sought consistent with the rest of City Plan?

  1. [82]
    Pursuant to s 61(2)(b) of the Planning Act 2016, it is necessary to consider the consistency of the proposed variations with the rest of City Plan. 
  2. [83]
    The variations sought are those identified in paragraph [49] above.  They involve additions to the applicable table of assessment in City Plan such that, in the circumstances identified in the proposed table of assessment, use of the subject land for accommodation activities will be self-assessable or code assessable. 
  3. [84]
    The codes proposed as the assessment criteria for the various self-assessable and code-assessable uses are consistent with those that apply for similar uses in City Plan.  They include codes such as the Low-medium density residential zone code or the Medium density residential zone code.  The proposed variations do not include deletions or amendments to the contents of any of the codes. 
  4. [85]
    The Council contends that the variations sought are entirely inconsistent with the rest of City Plan in two fundamental respects. 
  1. [86]
    First, the Council says a fundamental inconsistency arises with the intention of the strategic framework to preserve industry zoned land, including Low impact industry zoned land.  I agree for the reasons provided in paragraphs [64] to [81] above.  The extent of inconsistency is unsurprising given the development application includes the variation request.  The inconsistency is, no doubt, material to Southway Services’ desire to vary the effect of City Plan.
  1. [87]
    The second fundamental inconsistency asserted by the Council relates to the built form and density of the proposed residential uses.  The Council submits that the variation request purports to treat the subject land as though it was in the Low-medium density residential zone.  It says that, in truth, the variation request seeks to facilitate uses that would comprise medium density residential development by only requiring a code assessable development application for such uses. 
  2. [88]
    I accept the Council’s submission in part.   
  3. [89]
    There is a lack of attention to detail in Southway Services’ drafting of the proposed variations.  For example, no variations are proposed to the content of the Multiple dwelling code to ensure that the outcomes of that code, as they apply to the proposed development, are construed as though the subject land was in zones and precincts under City Plan where the planned height is consistent with that sought in the preliminary approval.  Nevertheless, read fairly, the assessment criteria listed in the proposed table of assessment indicates that the identified uses are to be assessed as though:
    1. (a)
      the “2 Storey Townhomes and Detached Houses Precinct” was located in the 2 storey mix zone precinct of the Low-medium density residential zone;
    2. (b)
      the “3 Storey Apartment Precinct” was located in the up to 3 storeys zone precinct of the Low-medium density residential zone; and
    3. (c)
      the “4 Storey Retirement Precinct’ and the “4 Storey Apartment Precinct” was in the Medium density residential zone.
  4. [90]
    Further, the proposed development would facilitate residential development that is more intense, and that has a larger built form, than the existing low-density residential development of the local area.  The proposed development would facilitate up to 750 dwellings on a 6.891-hectare site.  This equates to a density of about 108 dwellings per hectare.  Dr McGowan describes the proposed development as representing a development outcome for the subject land that is more accurately described as medium density rather than low density.[77]  I accept Dr McGowan’s evidence.
  5. [91]
    When considering the consistency of the proposed variations with the rest of City Plan, it is appropriate to consider those provisions of City Plan that guide the forms of residential growth anticipated and the intended location of those types of residential uses. 

What forms of residential growth does City Plan anticipate?

  1. [92]
    City Plan intends to deliver an outstanding lifestyle city by requiring, amongst other things, the provision of a diverse range of housing forms to meet the needs of the growing population, and catering to people at all stages of their lives.[78]  Residential development is to contribute to housing diversity, particularly supporting “ageing in place”.[79] 
  2. [93]
    This planning strategy is supplemented, in more recent versions of City Plan, with an intention to also seek housing options that allow “ageing in neighbourhood”.[80]  I accept that the current version of City Plan is relevant under s 45(5)(b) of the Planning Act 2016 as it represents the Council’s most contemporary statement of planning intent.[81]  I am satisfied that, in this case, it is appropriate that I give some weight to these provisions. 
  3. [94]
    Through the planning policies referred to in paragraph [92] above, version 6 of City Plan[82] identifies a need for the types of uses proposed.  The current version of City Plan confirms that the need is ongoing in the Brisbane City local government area, and it extends to providing housing options that allow ageing in neighbourhood.  City Plan[83] also provides guidance about how the need is to be met.
  4. [95]
    Brisbane’s housing choices are to be integrated within the communities and neighbourhoods of the city in a form appropriate to the locality.  The housing choices are to be consistent with the outcomes for the relevant “Growth Nodes on Selected Transport Corridors” or “Suburban Living Areas”.[84]  These areas are spatially represented on the strategic framework maps.[85]  Map SFM-002 (Brisbane CityShape 2031 Land Use Strategic Framework Map) shows, amongst other things, the location of intended “Growth Nodes”, “Selected Transport Corridors” and the areas that comprise “Suburban Living Areas”. 
  5. [96]
    In Brisbane’s Suburban Living Areas, most development is intended to be housing in the form of detached dwellings ranging from small cottages to large family homes on lots typically in the range of 400 to 800 square metres.[86]  That said, Brisbane’s Suburban Living Areas also comprise areas for centres, community facilities, medium and high density residential and industrial uses, as indicated in neighbourhood plans and the zoning pattern in City Plan.  Growth in those other uses is to be in response to local context and needs.  The zoning pattern shows the development intent that is consistent with local values, constraints, and opportunities in the Suburban Living Areas.[87] 
  6. [97]
    Intergenerational housing options to facilitate ageing in place are contemplated in Suburban Living Areas.  They are intended to comprise areas of small-scale, low-medium density housing, such as dual occupancy or row housing.[88]  Infill development is intended to be limited to instances where the resulting lot size reflects that which predominates in the neighbourhood.[89]  The siting, scale and lot coverage of new housing is to be consistent with the existing neighbourhood character of well-spaced houses and vegetated backyards.[90]

Where does City Plan intend to accommodate residential uses of the type and density proposed?

  1. [98]
    The strategic framework sets the policy intent of City Plan and forms the basis for ensuring that appropriate development occurs in the planning scheme area for the life of the planning scheme.[91]  It has a planning horizon of 2031.[92]  As such, the strategic framework assists in ascertaining the locational attributes that inform where City Plan intends to accommodate residential uses such as those proposed by Southway Services. 
  2. [99]
    City Plan recognises the requirement to meet the South East Queensland Regional Plan target of an additional 156,000 dwellings, with 138,000 dwellings as infill development.[93]  The growth capacity of Brisbane has been incrementally increased through the Council’s neighbourhood planning process to ensure that new development opportunities along selected transport corridors are progressively facilitated, supported by the appropriate provision of services, facilities, and infrastructure.[94]
  3. [100]
    Growth is planned to occur in an efficient and timely manner by developing in accordance with Brisbane’s “CityShape”.  CityShape is built upon a series of nodes and corridors radiating from the City Centre.  It is intended to provide for an efficient urban form.  It contains large-scale urban change to less than seven per cent of the Brisbane local government area.[95] 
  1. [101]
    As I have mentioned in paragraph [95] above, Brisbane’s planned urban form and structure is spatially represented on the strategic framework maps.[96]  Map SFM-002 (Brisbane CityShape 2031 Land Use Strategic Framework Map) shows the spatial distribution of the areas that inform CityShape.  Amongst other things, it shows the location of intended “Growth Nodes” and the “Selected Transport Corridors”.  It also depicts areas that comprise “Suburban Living Areas”.  Map SFM-003 (Brisbane Selected Transport Corridors and Growth Nodes Strategic Framework Map) provides finer-grained detail about the Selected Transport Corridors and Growth Nodes.  It identifies nine Selected Transport Corridors where growth is intended.  It also identifies a series of planned and future Growth Nodes, which are located along each of the Selected Transport Corridors. 
  1. [102]
    Major new housing opportunities are to be provided within the existing urban area and form of the city by infill and other types of redevelopment.[97]  Brisbane’s dwelling needs for future populations are planned to be met by matching growth to the existing and planned infrastructure in the city.[98] 
  2. [103]
    Much of the new growth planned for Brisbane is founded on the principles of transit-oriented development and is leveraged off public transport.  It also relies heavily on active travel, such as walking and cycling. 
  3. [104]
    The most significant additional residential growth is planned to predominantly occur within Growth Nodes on Selected Transport Corridors.[99]  This serves two evident planning purposes. 
  4. [105]
    First, providing increased densities within Growth Nodes on Selected Transport Corridors matches growth to the existing and planned infrastructure in the city.[100]  This is a key strategy that informs the location of higher density residential development.[101]  It is supported by other provisions in the strategic framework[102] and in the zone codes in City Plan.[103] 
  5. [106]
    Second, concentrating growth in identified Growth Nodes along Selected Transport Corridors is intended to ensure access to employment, services and infrastructure whilst maintaining the leafy suburban character of Brisbane’s Suburban Living Areas.[104]  Most of the established residential suburbs in Brisbane are mapped as part of Brisbane’s Suburban Living Areas.[105] 
  1. [107]
    Many of the areas mapped as Suburban Living Areas, such as the subject land, are planned to experience minimal change throughout the life of City Plan as most of the residential growth is planned to occur within Growth Nodes on Selected Transport Corridors.[106]  To the extent there is planned residential growth outside the Growth Nodes, it is intended to be relevant to the local context of the building and landscape character of the Suburban Living Area.[107]  Impacts on local amenity and values are to be carefully considered.[108]
  2. [108]
    In addition to the general strategy to locate higher density residential uses within Growth Nodes on Selected Transport Corridors, City Plan intends that a variety of accommodation and housing will be provided near the city’s major institutions and other Special Centres.[109]  For that purpose, City Plan identifies land to be used to accommodate a range of housing types that is suitable to tertiary and international students, such as rooming accommodation, and to staff and visitors to major special purpose centres.  This land is at appropriate locations, being locations that are proximate to education campuses or along high-frequency public transport routes, and which have good access to urban services.[110]  For example, Griffith University’s Nathan Campus is identified as a Special Centre on the strategic framework map.  Land in that area is zoned in the SC1 Major education and research facility precinct of the Specialised centre zone.[111]  The impact of Griffith University being a Special Centre is discussed at paragraph [115] below.
  3. [109]
    Rooming accommodation for students is to be in Growth Nodes on Selected Transport Corridors or in other geographically nominated locations, such as in Special Centres, where the surrounding amenity is maintained and there is good access to higher education campuses by way of public or active transport.[112] 

Are the proposed variations consistent with the City Plan provisions regarding the location of the type of uses proposed and the forms of residential development?

  1. [110]
    The variations proposed by Southway Services include a range of housing forms that cater to people at all stages of their lives.  In that respect, it is consistent with numerous provisions of City Plan (including those in version 22) that recognise that the provision of a diverse range of housing opportunities is important to achieving Brisbane’s outstanding lifestyle goal.  However, the planning policy with respect to housing opportunities must be read in the context of City Plan as a whole, which provides guidance about the appropriate location of such opportunities. 
  2. [111]
    The proposed variations are not consistent with the planning policy in City Plan regarding the appropriate location for residential uses of the density that are proposed.  There are four observations I wish to make in that regard.  Each tells against approval of the variation request.
  3. [112]
    First, the subject land is not located along either of the Selected Transport Corridors or at any of the identified Growth Nodes.  Rather, the subject land is mapped as part of the Suburban Living Area.  As the town planners observe in their joint expert report, the subject land sits between Corridor D – Brisbane South Rail transport corridor and Corridor A – Logan Road transport corridor but is not located within either corridor.  It is 2.5 kilometres as the crow flies from the nearest point of Corridor D and 3.5 kilometres from the nearest point of Corridor A.  The identified Growth Nodes are even further away. 
  4. [113]
    Second, the overall outcome in s 6.2.1.3(4)(b) of the Medium density residential zone code enocurage medium rise and medium density residential development on suitable sites in well-located parts of the city, including “the inner city and in close proximity to significant centres or along growth corridors or on the periphery of centres”.  However, when City Plan is read as a whole, the final reference is not properly construed as including neighbourhood centres.  Neighbourhood centres are the lowest order of centre and are intended to be interspersed in low density residential neighbourhoods.[113] 
  5. [114]
    The subject land is not located within easy walking distance of a public transport node.  Further, although it is located near a neighbourhood centre, it is not located in close proximity to, or on the periphery of, a significant centre or a key destination.[114] 
  6. [115]
    Further, I do not regard the subject land to be in close proximity to the Special Centre that is Griffith University’s Nathan Campus.  Although the subject land adjoins the land on which Griffith University’s Nathan Campus is located, the facilities associated with the University are located some distance from the subject land.  The shortest route to the University facilities is approximately 1.5 to 2 kilometres walk through the forest.  The route traverses an unlit, unsealed bush track, parts of which are steep.  The walk from any of the trail heads to the University ring road, of itself, would require about half an hour.[115]  It is evident from aerial photography that there is then a reasonable traverse from the ring road to any of the buildings on the campus.[116]  The alternative path is approximately three kilometres along the major road network.  It also involves a long uphill stretch to the campus facilities.  Neither of these routes involves an easy walk. 
  7. [116]
    Third, having regard to the context within which the subject land sits, it does not provide a sensitive transition to low density residential areas[117] or provide a transition area between higher and lower rise/lower density zones.  As such, the subject land does not fulfil the intended role of land in the Up to 3 storeys zone precinct of the Low-medium density residential zone or the Medium density residential zone. 
  8. [117]
    Fourth, s 3.7.1(4) of City Plan states:

“Development which does not comply with the zone, zone precinct, neighbourhood plan or the Priority infrastructure plan must be consistent with the Strategic framework”.

  1. [118]
    As such, the inconsistency between the proposed variations and the strategic framework is a matter that weighs in the balance against approval of the proposed development and the variation request.
  1. [119]
    In addition, the variations are inconsistent with the intention to preserve opportunities for low impact industrial uses throughout the city on land in the Low impact industry zone and the General industry A zone.[118]

Does the loss of submission rights for future applications support refusal of the proposed development?

  1. [120]
    If the variation approval is granted, there will be a loss of submission rights for future development applications.
  2. [121]
    As I have noted in paragraphs [21](c) and [31] above, when assessing the variation request I must consider the effect the variations would have on submission 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.[119]  In paragraphs [32] to [44] above, I summarise the information available to submitters.
  3. [122]
    As I have noted in paragraphs [50] and [65] above, the development application is almost devoid of detail about the proposed use.  Consequently, there is a lack of certainty as to what may, or may not, ultimately occur on the subject land.  The range of uses that are sought to be permitted to proceed on a code assessable basis are varied.  So too is the mix, form and scale of development that might proceed over the next 10 years (or more). 
  4. [123]
    The lack of detail precluded meaningful consideration by the public of the potential impacts of the proposed development.  As I have mentioned in paragraph [46] above, this was a matter of concern to some of those who made submissions.[120]  Many of the submissions express concern that “there is no information provided on the scale of each of the different uses” and that the proposal “should not be supported until further clarification of density can be demonstrated”.[121]  One submission states:[122]

“There are a number of issues that indicate that land uses proposed are not appropriate:

  1. 1.Density is a critical issue but the Development Application has not specified the anticipated density on the site.  … 
  2. 2.Without clarity with respect to density, impacts on the surrounding road network cannot be properly assessed, nor can the adequacy of potential car parking.  …

I am particularly concerned that the Development Applications seeks to alter the level of assessment for multiple dwellings, residential care facility, retirement facility and rooming accommodation to code assessment, meaning submission rights would not arise for future development applications for those uses.  The Development Application has not provided sufficient detail to demonstrate that those uses can feasibly be located on the site, without traffic or amenity impacts, and therefore has not justified the change in level of assessment.”

  1. [124]
    Further, to the extent that the information available to submitters provided an indication of the possible outcomes for the subject land, it had the potential to create a false impression.  For example, as I have noted in paragraph [37] above, the Planning Report that accompanied the development application indicated that the variation request treats the subject land like low-medium density residential land.  That statement sits uncomfortably with the provisions of City Plan as the heights proposed, at up to 4 storeys, are consistent with what one might reasonably expect in the Medium density residential zone, not the Low-medium density residential zone.  Further, as was noted by Dr McGowan, the scale and form of development contemplated, and the maximum residential density of 750 dwellings, represents a development outcome that is more accurately described as medium density rather than low density.[123]
  2. [125]
    In the circumstances, I am not satisfied that it is in the public interest that the community should be precluded from making submissions with respect to future development applications for the type of development the subject of the proposed variations. 
  3. [126]
    This consideration favours refusal of the variation request. 

Is there a need for further residential development of the type proposed in this location?

  1. [127]
    Southway Services contends that there is clearly a need, in this location, for further residential development of the type proposed.  The type includes residential care and retirement facilities and other residential components.  Southway Services relies on the need as a relevant matter in support of approval.  The Council joins issues with the contention.  It submits that Southway Services has failed to demonstrate a need for the range of residential uses it seeks.
  2. [128]
    There is no dispute between the parties that the general principles that inform and guide an assessment of need are well-settled.   They are conveniently summarised by His Honour Judge Wilson SC (as His Honour then was) in Isgro v Gold Coast City Council & Anor.[124]  As His Honour stated:[125]

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met.”

  1. [129]
    Need is a relative concept to be given a greater or lesser weight depending on all the circumstances which the planning authority is to consider.[126]  Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors.[127]
  2. [130]
    Southway Services identifies three matters that it says demonstrate need, namely:
  1. City Plan itself inherently acknowledges the need for this type of development;
  1. there is a need for residential care and retirement facilities in the locality; and
  2. there is a need for the other residential components that form part of the proposed development.[128]

Does City Plan acknowledge the need for this type of development?

  1. [131]
    Southway Services submits that City Plan itself identifies a need for development that includes the components of the proposed development.  It says this is inherent in City Plan’s:
    1. (a)
      focus on themes such as “ageing in place” and residential growth that responds to local needs;
    2. (b)
      specific intent to provide a variety of accommodation and housing options near Special Centres (such as Griffith University Nathan campus); and
    3. (c)
      general intent to provide residential development that is diverse in range and to provide density of housing close to centre activities and places of employment.
  2. [132]
    It is difficult to cavil with these propositions given the level of generality adopted in their expression.  However, for the reasons provided in paragraphs [92] to [118] above, I am not persuaded that City Plan identifies a need to develop the subject land for residential development of the density proposed.  

What was the evidence about the need for residential care and retirement facilities in the locality?

  1. [133]
    To help me ascertain whether there is a need for residential care and retirement facilities in the locality, I was provided with evidence from the economists, Mr Gavin Duane and Mr Marcus Brown (who were retained by Southway Services and the Council respectively), and a report by Ms Catherine Wells.  Ms Wells has over 30 years’ experience in the retirement and aged care industry.  She has experience with the supply and demand for retirement and residential care facilities, and with industry trends and service delivery models for retirement living developments and Commonwealth and privately funded aged care services. 

What was the evidence of demand for residential care facilities?

  1. [134]
    In her individual statement of evidence, Ms Wells delineates a catchment area from which she anticipates there will be a demand for a residential care facility on the subject land (“the residential care facility catchment area”).  The residential care facility catchment area is defined by the boundaries of statistical areas (SA2s) and includes the Salisbury-Nathan, Coopers Plains, Robertson, Moorooka and Tarragindi SA2s.  The outer extremities of the residential care facility catchment area are about five kilometres (by road) from the subject land.[129] 
  2. [135]
    Ms Wells’ definition of the residential care facility catchment area is informed by her experience analysing retirement village and residential aged care populations and conducting resident focus groups across Australia.  Ms Wells explains that, unless seeking a “tree or sea change” earlier in retirement, older Australians seek to access retirement and aged care accommodation in their local neighbourhood where:
    1. (a)
      the services of the local area (including food, health, lifestyle and essential services) are familiar and known to them, ensuring continuity in lifestyle, care and support; and
    2. (b)
      they are able remain relatively close to health, social and support networks, often including family and certainly long-standing neighbourhood friends.
  3. [136]
    Ms Wells explains that as a person ages, what they consider to be their local neighbourhood becomes more geographically constricted.  In general, persons in their 60s may consider travel up to 15 kilometres (or more) to be within their local neighbourhoods.  They are typically independent with a focus on downsizing and maintaining or improving their lifestyle and social connections.  Persons in their 70s consider a geographical area that involves travel of around eight to 10 kilometres to be a generally familiar area (subject to factors specific to the catchment area such as shifts in socio-economic status, defining aspects of the road network and natural boundaries such as mountain ranges).  At this stage of life, whilst starting to experience health decline, persons are still reasonably independent.  Persons in this age group typically have a focus on maintaining familial support networks to maintain independence.  They generally seek a new “home for life” that can cater to their changing future needs.  Persons in their mid to late 80s with immediate care needs seek to access residential aged care in their immediate neighbourhood, being the suburbs immediately surrounding their home.  This is typically within no more than a five-kilometre drive.
  4. [137]
    Ms Wells opines that there is a current demand for aged care places in the residential care facility catchment area.  She says that demand will increase unless addressed by the provision of new developments. 
  5. [138]
    Ms Wells utilises the Commonwealth Department of Health aged care planning ratio as a benchmark to gauge the extent of the demand in a quantitative sense.  The ratio is used by the Department to control supply and to distribute Commonwealth funded residential aged care licences to approved providers of aged care.  The planning ratio allows for 125 aged care places per 1,000 people aged 70 years and over.  It targets the provision of 80 residential care places (including two short term restorative care places) and 45 home care packages.[130]
  6. [139]
    In her statement, Ms Wells provides a table in which she demonstrates the application of the planning ratio to the Commonwealth Department of Health ageing population forecasts (for persons 70 years and over).  It indicates that the likely demand for aged care places in the residential aged care catchment area currently is 290 aged care places.  The demand will likely increase to 304 places by 2025 and 330 places by 2030.[131] 
  7. [140]
    Ms Wells also gave evidence about the existing supply and likely future supply.  Presently, there are 136 residential aged care places in the residential care facility catchment area.  They are funded aged care allocations that are in operation and available to the community.  They are all located in the Salisbury-Nathan SA2.  With respect to future supply, Ms Wells notes that there are presently no provisional places, that is aged care allocations that have been awarded through the competitive tender process to access residential aged care licences but that have not yet been made operational.  There are also no off-line places, being funded aged care allocations that have been made operational, but which are now off-line and not available to the community.[132]  In addition, there are no existing or proposed private aged care alternative to assist in meeting demand for frail aged care accommodation and services.[133] 
  8. [141]
    Ms Wells quantitative analysis of demand and supply indicates a present undersupply of 154 aged care places, which undersupply will increase to 168 aged care places by 2025 and 194 aged care places by 2030, unless there is further supply.  As such, Ms Wells opines that to address the likely demand would require development of around two new standard sized (i.e. 96 place) residential aged care facilities.[134]
  9. [142]
    Ms Wells opines that the likely demand for aged care places, coupled with the absence of stock in the pipeline, indicates that around half of the older Australians in the residential care facility catchment area requiring residential aged care accommodation will need to relocate away from their immediate neighbourhood to access it.  Ms Wells considers this is not in the community interest as it would result in disconnection of the older Australians from their health and support networks, reduced civic participation, social isolation, and a decline in wellbeing.[135] 
  10. [143]
    Ms Wells delineated between modern and institutionalised age care accommodation.  In addition to lacking appropriate access to residential aged care facilities, Ms Wells opines there is a lack of appropriate access to modern aged care accommodation as compared to older, institutional living.  Ms Wells describes institutional living as that which may include features such as smaller or shared rooms, shared ensuites or share bathrooms, traditional clinical décor, lower ceilings, limited natural light, limited easy and direct connection or access to the outdoors, traditional fit-out and finishes (such as lino running across floors and halfway up the walls, hospital style handrails, clinical hallways, traditional style servery’s, visible washbasins along hallways and no removal of back of house functions), and multifunctional and smaller social spaces that result in a lack of enjoyment for residents and visitors. 
  11. [144]
    There is only one operating service in the residential aged care catchment area, being the Regis Salisbury.  It offers an older, institutional form of accommodation.  Further, of the 1,433 operational places across 16 residential aged care sites in Ms Wells’ broader catchment for retirement facilities (“the retirement facility catchment area”), the majority of the sites (i.e. 10 sites offering 899 places, or 62 per cent of the total) offer a traditional form of care that involves institutional living.  Only six of the sites in the retirement facility catchment area (operating 554 places or 38 per cent of the total) offer modern accommodation options. Ms Wells explains that the traditional, institutional form of accommodation is not aligned to either community expectations or the policy direction for residential aged care accommodation indicated by the Royal Commission into Aged Care Quality and Safety.[136]  
  12. [145]
    Ms Wells’ evidence with respect to the residential care facility catchment area was not challenged, nor was her quantitative or qualitative analysis of the demand for aged care places.  To the contrary, in the joint Economic Need Report, Mr Brown notes that, having undertaken his own analysis, he accepts Ms Well’s estimates of demand.[137]  Mr Brown also accepts there is an economic need for approximately 194 places to be provided in a residential care facility by 2030. 

What was the evidence of demand for further retirement facilities?

  1. [146]
    Ms Wells gave evidence about the demand for retirement facilities in the area.  It included a quantitative analysis.  Her analysis relies on her retirement facility catchment area.  It includes her residential care facility catchment area, as well as the Yeronga, Fairfield-Dutton Park, Mount Gravatt, Upper Mount Gravatt, Rocklea-Acacia Ridge, Sunnybank, and Sunnybank Hills SA2s.  The outer extremities of the retirement facility catchment area are about nine kilometres (by road) from the subject land.[138]  As with the residential aged care catchment area, Ms Wells’ definition of the retirement facility catchment area is informed by her experience, and is based on those matters referred to in paragraphs [135] and [136] above. 
  2. [147]
    In its written submissions, the Council notes that Ms Wells’ retirement facility catchment area does not allow for overlapping catchments.  For example, it does not identify the options available to a resident of Upper Mount Gravatt that are within nine kilometres of that suburb but outside Ms Wells’ retirement facility catchment area.  The Council does not explain the significance of the observation.  I am not persuaded that there is any.[139] 
  3. [148]
    Ms Wells’ quantitative analysis examines the extent to which that part of the projected population that is over 65 will have access to independent living units.  With respect to potential supply, Ms Wells assumes that there are 892 independent living units presently operating in the retirement facility catchment area and an additional 278 independent living units that are proposed.[140]  Based on those assumptions and having regard to the projected population of those aged 65 and over, Ms Wells predicts a penetration rate in 2020 of 5.4 per cent.  On her predictions, that will increase to 6.6 per cent by 2025 (assuming the 278 independent living units that are proposed are all developed), before dropping to 6 per cent in 2030 (assuming there is no addition to the supply). 
  4. [149]
    In the joint Economic Need Report, Mr Brown critiques Ms Wells’ quantitative analysis, and considers its implication in terms of demand.[141]  Mr Brown does not cavil with Ms Wells’ retirement facility catchment area, nor her population projections.  Based on the outcomes predicted, Mr Brown surmises that Ms Wells has assumed that the average occupancy rate of the independent living units is 1.3 persons, which Mr Brown notes is consistent with the broader industry standard.[142]  Mr Brown also surmises that the analysis assumes that all retirement villages are at capacity, which he regards as an inappropriate assumption.[143]  Mr Brown criticises the absence of an assessment of plausible penetration rates cross-checked against Census data, and Ms Wells’ decision to exclude the 218 dwellings at Seasons Living in Holland Park West from her predicted supply.[144]
  5. [150]
    Mr Brown notes that the 2016 Census data indicates that the average take-up of retirement village independent living units among persons over the age of 65 years is about 5 per cent in Brisbane, 7.7 per cent for South East Queensland, 6.7 per cent in Queensland, and about 5 per cent nationally.  He notes that areas such as the Fraser Coast and Sunshine Coast local government areas have a higher rate of take-up, reflective of the migration of retirees to those areas.[145]  Adopting a penetration rate of 7 per cent and assuming an average occupancy of 1.3 persons per independent living unit, Mr Brown predicts a demand for 1,365 independent living units by 2030.  He says that this is less than the supply of 1,388 independent living units that would be available in the retirement facility catchment area, assuming the inclusion of the Seasons Living option.  Mr Brown considers that analysis to be conservative, given the adoption of a penetration rate of 7 per cent rather than the more plausible rate of 6 to 6.5 per cent. He also notes that the average age of entry into retirement villages is about 75 years old, and the average age of residents is in the order of 81 years old.  The average length of residence is currently about 10 years, which Mr Brown says means that about 10 per cent of the independent living units come back onto the market each year.[146]  Having regard to that analysis, Mr Brown opines that there is no need for the proposed retirement facility.
  6. [151]
    Mr Duane also considered quantitative indicators of demand for retirement facilities.  He says that Mr Brown’s assumption of a 7 per cent penetration rate is low.  He considers a calculation based on 10 per cent is a more appropriate indicator of demand for three reasons.  First, the lower penetration in Brisbane as compared to that for South East Queensland is indicative of the insufficient choice available close to the central business district.  That is a factor of competing land uses, such as multiple dwelling developments for younger residents, restricting the options for seniors.  Second, the combination of independent living units and manufactured homes accounts for over 11 per cent of the total South East Queensland market for over 65s’ accommodation.  As the Brisbane local government area does not include many manufactured home parks, particularly in inner city locations, there is a need for additional independent living units.  Third, Mr Duane says a minimum of 10 per cent is appropriate to reflect growth in demand over time (particularly close to services such as hospitals), and to ensure choice in the market given the likely ongoing absence of other seniors living options, such as manufactured homes, in this inner-city location.[147]  Adopting 10 per cent, Mr Duane says the quantitative analysis indicates that the anticipated demand will exceed supply, regardless of whether the Seasons Living facility is included.
  7. [152]
    Having regard to Mr Duane’s reasoning, I am persuaded that the 7 per cent penetration rate assumed by Mr Brown is too low.  An application of Mr Duane’s penetration of 10 per cent indicates that the demand for retirement facilities will exceed supply (including that available at Season Living) by 2025.  Adoption of an 8 per cent penetration rate similarly indicates an undersupply.[148] 

How does City Plan address the demand for residential care and retirement facilities?

  1. [153]
    A review of the tables of assessment in City Plan version 6 reveals that in the Low-medium density residential zone, an application for a new retirement facility would be code assessable, provided the development satisfies certain criteria relating to height and lot size.  Such an application is also code assessable in the Medium density residential zone, as are applications for a material change of use for a residential care facility.[149]  The potential location of such development is expanded in version 21 of City Plan, under which a code assessable application for a material change of use for a residential care facility or a retirement facility can be made in the Low density residential zone.[150]  The Retirement and residential care facility code in version 21 of City Plan also seeks to ensure that development of those types of facilities are appropriate.[151]  The code contains requirements that reflect the requirements of contemporary facilities referred to by Ms Wells.  As such, City Plan, particularly the most recent version, makes provision, in a land use planning sense, for such uses.  City Plan does not contemplate the establishment of such uses in the Low impact industry zone.
  2. [154]
    In the joint Economic Need Report, Mr Brown asserts that the demand for a further residential care facility could be accommodated on land within Nathan.[152]  In his individual statement, Mr Brown’s position softened.  In that report, he says that there is a possibility that a residential care facility could be accommodated within the various residential zones, although it would likely require the assembly of multiple lots and would leave an aged care developer to compete with apartment developers for appropriate sites.  As such, Mr Brown recognises that meeting the need would not be without its challenges.  Nevertheless, Mr Brown gave an example of where such a development had been achieved, namely the Retire Australia Tarragindi development.[153] 
  3. [155]
    Whether City Plan makes adequate provision is a question of fact and degree.  That City Plan makes provision for residential care and retirement facilities is a relevant consideration that informs the issue, as are the challenges associated with realising such land use potential.

What was the evidence about the need for the other residential components?

  1. [156]
    Unsurprisingly, there is no dispute between the economists that the population of the Brisbane local government area, including the local area in which the subject land is located, is projected to grow over the next 20 years.  The experts otherwise disagree about the need for the proposed development.  Mr Duane says that the research indicates there is a need for the proposed development.  Mr Brown says there is no need.
  2. [157]
    In forming their respective opinions with regards to need for the general residential component of the proposed development, Mr Duane and Mr Brown each undertook a quantitative analysis of need.  Their analyses considered statistical data and projections in relation to the Brisbane local government area, as well as information with respect to a more localised study area.  The experts agree that the local area of relevance to the subject development is that defined by statistical area (SA2) boundaries and that the appropriate local area includes the Salisbury-Nathan, Tarraginidi, Moorooka, Coopers Plains, and Robertson SA2s (“the local study area”). 
  3. [158]
    The economists’ quantitative analysis was informed by:
    1. (a)
      the current and projected populations for the Brisbane local government area;
    2. (b)
      the likely demand for dwellings across the Brisbane local government area;
    3. (c)
      the number of dwellings that the South East Queensland Regional Plan 2017 contemplates for the Brisbane local government area;
    4. (d)
      the planning assumptions in the priority infrastructure plan in City Plan with respect to growth in population and dwellings;
    5. (e)
      the stock of broadhectare land in Brisbane;
    6. (f)
      the current and projected populations for the local study area;
    7. (g)
      the dwelling projections for the local study area;
    8. (h)
      the socio-economic profile and profile trends for the local study area;
    9. (i)
      new dwelling approvals in the local study area;
    10. (j)
      proposed development in the local study area; and
    11. (k)
      the development potential of the local study area, having regard to land in the Low density residential zone, the Low-medium density residential zone, the Medium density residential zone and the Emerging community zone.
  4. [159]
    As I understand his evidence, Mr Duane accepts that it is difficult to demonstrate a need for the proposed residential development solely, or even predominantly, based on this quantitative analysis given that, absent the proposed development, the population will still be able to access accommodation.[154]  As such, it is unnecessary for me to resolve the differences between the experts with respect to their quantitative analysis.  It is sufficient to note that the economists agree that:
    1. (a)
      there is a demand for residential development in the Brisbane local government area;[155]
    2. (b)
      given the developed nature of the Brisbane local government area and the limited extent of available broad hectare land, a substantial number of new dwellings are required from redevelopment of existing properties as compared with broad hectare land;[156]
    3. (c)
      a diverse range of housing is required to sustain the predicted population growth;[157] and
    4. (d)
      infill multi-unit development will be required to sustain the predicted population growth.[158]
  5. [160]
    With respect to the broader considerations that inform the issue of need, Mr Duane says that the proposed development represents an opportunity to contribute to the stated planning objectives, particularly those in the South East Queensland Regional Plan 2017, of accommodating significant population growth by providing infill development in locations served by all necessary infrastructure, including public transport.  He says that the proposed development will facilitate the provision of the “missing middle” housing types (i.e. duplex and multiple dwellings), which are encouraged by the South East Queensland Regional Plan 2017.[159] 
  6. [161]
    Mr Duane opines that the proposed development represents an opportunity to provide Low-medium density residential development in a location that provides a high degree of residential amenity and which is served by significant levels of private and public infrastructure that support residential uses.[160]  The infrastructure to which Mr Duane refers includes public transport facilities in the form of bus stops within 250  metres and the Salisbury Railway station within 2.5 kilometres of the subject land; the major employment nodes located in the Brisbane CBD, industrial areas to the west and Mt Gravatt centre to the east; a number of park and recreation areas within the immediate precinct; shopping facilities at Salisbury and Moorooka; several private and state schools within two kilometres of the subject land, such as Brisbane Christian College, St Pius Catholic School, Salisbury State School, Nyanda State High School; and Griffith University (Nathan campus).[161] 
  7. [162]
    Mr Duane says that increasing population density in areas served by all necessary infrastructure achieves both planning goals and greater economic efficiency in terms of the use of existing and proposed infrastructure.  He regards this to be of benefit to the community.[162] 
  8. [163]
    In addition, Mr Duane opines that approval of the proposed development would not impact adversely on the prospect of development of other approved and existing sites, or other sites designated for residential development in City Plan, because of the current public demand for new unit development in the inner Brisbane area.[163]
  9. [164]
    Mr Brown accepts that components of the proposed development involve the “missing middle” form of housing.[164]  He also accepts that, as a general principle, intensifying population growth close to centres is sensible.[165]  Nevertheless, Mr Brown opines that there is no need for the proposed residential uses.  There are four principal reasons he provides for that opinion.  First, Mr Brown says the demand for new housing within the Brisbane local government area is largely being met by existing planning instruments and the Council, as the planning authority, has an ongoing program of neighbourhood planning to respond to local or neighbourhood area planning needs.  He notes that a neighbourhood plan is currently under development for Moorooka, Salisbury, and Nathan.  The area under consideration includes the subject land.  Second, Mr Brown says the residential study area is not a high growth area, and the planned pattern of settlement within the study area responds to the locational attributes of various parts of the study area by concentrating density in areas with line haul public transport accessibility, such as in Moorooka west of Beaudesert Road and in the Coopers Plains Suburban Renewal Precinct.  Third, Mr Brown opines that there is a significant bank of dwellings (in the order of 629 dwellings) that are approved and under construction.[166]  He says that they will meet the short-term housing needs of the residential study area.  In addition, Mr Brown says there is significant capacity to accommodate additional housing across a range of locations, zones, and typologies in the local study area.  Fourth, Mr Brown opines there is presently a diverse range of dwelling typologies, locations, and price point throughout the local study area.[167]  He says apartment buildings up to three storeys in height is the primary typology being delivered on land in the Low-medium density residential zone.  Apartments in four and five storey buildings are being delivered at Coopers Plans on land in the Medium density residential zone.[168]  There is also a considerable quantum of attached dwellings being developed in the local study area on land designated in the Low-medium density residential zone and the Medium density residential zone.[169]
  10. [165]
    Mr Brown disagrees with Mr Duane’s view that the proposed development will not adversely impact on any other development.  He says that the local study area is not anticipated to experience high levels of growth.  As such, he says that approval of a development of the size proposed would necessarily undermine the investment being made by developers in those areas appropriately zoned for higher density forms of residential development.  This is in addition to prejudicing the delivery of employment uses on the subject land.[170]
  11. [166]
    Neither economist opines that there is a demonstrable need for the proposed accommodation of students in the form of rooming accommodation.  Mr Duane opines that, although the application seeks approval for rooming accommodation, students are more likely to be accommodated as part of private rental dwellings developed on the subject land.[171]  Mr Brown agrees.  He further notes that Griffith University provides on-campus accommodation and that the local market for purpose-built student accommodation is declining, which is consistent with the decline in international enrolments at Griffith University’s Mount Gravatt and Nathan campuses.[172] 

Conclusion regarding whether there is a need for the proposed development?

  1. [167]
    Having regard to the evidence of the economists referred to above, I am satisfied that there is an ongoing need for a range of housing options in the Brisbane local government area and in the local study area.  The proposed development, if approved, would add to the choice presently available, including the “missing middle” form of housing referred to in the South East Queensland Regional Plan. 
  2. [168]
    Further, I am satisfied that the characteristics of the subject land and its locational features make it suitable for use for residential development.  As I have noted in paragraph [193] below, I am satisfied that the characteristics of the subject land present an opportunity to incorporate more intense built form on the subject land than that typically encouraged in a low-density residential area. 
  3. [169]
    These matters are indicative of a need for the proposed development.  This is a relevant matter that lends support to approval of the proposed development.  However, need is but one of several issues that is required to be considered in an application of this kind.  It is not, on any view, paramount in all cases.[173]  I address the importance of need in the exercise of the planning discretion below. 

Can the proposed development be provided without any unacceptable impacts?

  1. [170]
    Southway Services contends that the proposed development could occur without giving rise to any unacceptable impacts.  It relies on the absence of unacceptable impacts as a relevant matter that supports approval.
  2. [171]
    An absence of character and amenity impacts is a matter that, if established, may favour approval of a development application.[174]
  3. [172]
    The issues in dispute refer to four potential impacts, namely bushfire, flooding, traffic, and character and amenity.

Will there be unacceptable bushfire, flooding, or traffic impacts?

  1. [173]
    During the hearing, the Council and the Co-respondents accepted that bushfire, flooding, and traffic impacts were not matters that, by themselves, warrant refusal. 
  2. [174]
    The Council accepts the evidence of Southway Services’ flooding and bushfire experts, Dr Johnson and Mr Delaney respectively.  The Council accepts that mitigation of flooding and bushfire risks can be achieved through conditions in the manner identified by those experts.  However, it says the proposed development still involves the introduction of increased population (potentially including vulnerable users) to an area where there is a known and agreed hazard.  For that reason, the Council submits that the introduction of a higher density of residential development to the subject land does not favour approval of the proposed development or the variation request.
  3. [175]
    Considering the concession, I will assume that issues relating to bushfire, flooding, and traffic are capable of being addressed by way of conditions and do not warrant refusal of the application for a preliminary approval. 

Will there be an unacceptable character and amenity impact?

  1. [176]
    Southway Services says there will be no unacceptable character or amenity impacts arising from the built form associated with the proposed development.  It also says that the proposed development will remove the potential for truck traffic associated with use of the subject land in a manner that is consistent with its Low impact industry zoning.  The proposed development will replace such traffic with a type of traffic that is more in keeping with the surrounding residential precinct.  Southway Services says this will result in a positive amenity impact. 
  2. [177]
    The Council disagrees.  It says that the absence of unacceptable character impacts has not been established by Southway Services.
  1. [178]
    With respect to visual and character impacts, Southway Services called evidence from Dr McGowan, a visual amenity expert, and Mr Richards, an urban design expert.
  2. [179]
    Dr McGowan describes the subject land as the largest allotment within the discrete pocket of land contained by Toohey Road, Toohey Forest Park, Griffith University and Wilcox Park.  He opines that the vegetated slopes and local ridgelines enclosing this discrete pocket of development are an important feature of the local visual environment that contributes significantly to the amenity and sense of place in this area.  He says the built form character of this discrete pocket is substantially defined by predominantly low-rise, low density residential development in the form of regular fabric of detached housing and small-scale multiple dwellings.  He says the current commercial and industrial built form on the subject land stands in contrast to this finer-grained residential development. 
  3. [180]
    Although the area contains a service station, a hotel and liquor barn, an ambulance station, and a neighbourhood centre, Dr McGowan says those uses present as part of the mixed character associated with Toohey Road. 
  4. [181]
    Dr McGowan opines that, leaving aside the subject land, he does not expect the character of the local area to change substantially in the foreseeable future.  His opinion is informed by the fact that the current land uses in the vicinity of the subject land reflect the underlying low-density zoning. 
  5. [182]
    Mr Richards also gave evidence about the amenity of the local area.  He opines that the residential street amenity, in a visual sense, is presently compromised by Low impact industry uses and truck access. 
  6. [183]
    Dr McGowan and Mr Richards each supported their opinions by reference to photographs that they included in their reports.  The photographs taken by Dr McGowan include images taken along the street and at an oblique angle to the subject land’s frontage.  They give an impression of the visual impact of the existing development on the subject land, and the surrounding development, from the point of view of someone travelling throughout the local area.  As was accepted by Mr Richards, they provide an appreciation of the oblique angle at which built form is generally viewed as one moves through an area, the relationship between adjoining developments, and the extent to which street vegetation can influence the visual impression of the development.  Mr Richards accepts that Dr McGowan’s photographs are a reliable representation of the area.  By way of contrast, the photographs provided by Mr Richards in support of his opinion are taken from directly in front of the subject land only.  They do not assist in understanding his evidence about the impact of that presentation on the surrounding amenity. 
  1. [184]
    Dr McGowan’s evidence about the existing character of the area is consistent with the evidence of the town planners.  Mr Christopher Buckley, the town planner retained by Southway Services, explained during cross-examination that low-density development typically has a yield of about 10 to 12 dwellings per hectare.  Mr Buckley perceives that the density of residential development in the local area is of that order.[175]  His understanding of the development in the local area is documented in a land use map in the Town Planning Joint Expert Report, which records that the local area contains 273 dwelling houses, 26 dwellings in the form of 13 duplexes, and 88 multiple dwellings provided in 19 multiple dwelling complexes.[176]  I accept this evidence.
  2. [185]
    Having regard to the evidence of the town planners that I accept and the photographic evidence before me, I accept the evidence of Dr McGowan about the existing character of the local area.  There is a clear difference between the visual presentation of the existing development on the subject land and that of the surrounding development.  However, I do not accept the evidence of Mr Richards that it compromises the low-density residential character of the local area.
  1. [186]
    As I have observed at paragraph [90] above, the proposed development represents a development outcome for the subject land that is more accurately described as medium density rather than low density. 
  2. [187]
    Even though the proposed development involves a far greater density than that which characterises the local area, Dr McGowan opines that a development outcome resulting from the preliminary approval could achieve a reasonable and acceptable compatibility with the existing residential character.  His opinion is premised on five matters.
  3. [188]
    First, residential uses would relate better to the prevailing character of the local area then the current built form on the subject land.  The current built form on the subject land includes several large industrial buildings.  Second, the built form presented to Fairlawn Street would be blocks of townhouses set behind front yard landscaping.  This would achieve a presentation that has a house-compatible scale, with similar separation distances and setbacks to other housing in the area.  Third, the built form of three and four storeys would be comprised of several buildings that are well-separated from each other and any neighbouring development and set behind the townhouses.  He says that because of the topography of the subject land and the location of the proposed townhouses, the taller buildings would not be obvious to most viewpoints in the local area.  Fourth, there would be opportunity for generous landscaped open space to be provided between buildings, which would help to soften and integrate the built form.  It would contribute to the green and leafy character of the area.  Fifth, the key natural landscape features of the subject land, being the embankments to the east and south of the subject land, would not be affected.  Substantial landscape buffers would be maintained between the proposed built form and the adjacent natural landscape. 
  4. [189]
    In addition, in Dr McGowan’s opinion, the outcome is acceptable when compared to the visual outcome that might result were the subject land redeveloped for an alternative industrial development.  In this respect, Dr McGowan relies on a comparison between visualisations prepared by his office depicting a development outcome that he says may result from the preliminary approval and visualisations depicting redevelopment of the subject land for industrial uses.
  5. [190]
    I have difficulty accepting Dr McGowan’s opinion that a development outcome resulting from the preliminary approval could achieve a reasonable and acceptable compatibility with the existing residential character.  It has not been established that the built form of three and four storeys would be comprised of several buildings that are well-separated from each other and the neighbouring development.  There is no detail about the number, configuration or design of apartment buildings that will be developed on the subject land in the event of an approval.  There is a design for the 24 townhouses.  Otherwise, the parameters of the proposed development are not defined with any certainty.  The parameters are defined only by a series of precincts with identified building heights and by the nomination of codes against which the acceptability of any built form will be assessed at the time of future development applications for development permits.  Dr McGowan does not explain how the requirements of the nominated code will result in his assumed outcome.  In fact, it is apparent from Dr McGowan’s second Statement of Evidence that he did not consider the provisions of the Low-medium density residential zone code or the Medium density residential zone code when considering whether the proposed development would result in an outcome with appropriate character and amenity impacts.
  6. [191]
    Further, Dr McGowan’s comparison of the potential impact of the proposed development to that of an industrial redevelopment was unhelpful.  The visualisations of the potential residential outcome assume a development design that is not the subject of the development application.  In addition, it has not been demonstrated that the design is one that is compliant with the codes that will apply if the variation request is approved.  The industrial visualisations are even less reliable.  Other than with respect to height, the visualisations were prepared without considering the requirements of the Industrial code, which would apply in the event the subject land was redeveloped for industry.[177]  The industrial visualisations also assume a redevelopment of the subject land would take the form of bulky buildings with long, continuous walls.  I am not persuaded that this is likely given the photographic evidence showing the form of new industrial development nearby in Flanders Street. 
  7. [192]
    Mr Richards’ also gave evidence about the character and amenity impact of the proposed development.  He opines that the proposed development would make a positive contribution to the local area, far more than a low impact industrial use.  He says that the topography of the subject land presents an opportunity to incorporate the taller aspects of the proposed development with no unacceptable visual impact.  In that respect, he notes that there is a dramatic escarpment of between 10 and 35 metres in height along the southeast boundary of the subject land.  Neighbouring houses are at RL 50 to RL 65 metres, whereas the subject land sits at between RL 35 and RL 40.  The difference in grade disappears as one moves towards the northeast corner of the subject land.  At that location, the adjoining properties are at a similar height to the subject land.  Mr Richards opines that the proposed development appropriately integrates with the surrounding development by transitioning in scale from two storeys along Fairlawn Street to three and four storeys at the rear of the subject land at a location proximate to the cut into the hillside. 
  1. [193]
    I am satisfied that the characteristics of the subject land present an opportunity to incorporate built form on the subject land that has dimensions, and creates a density, that is greater than that typically encouraged in a low-density residential area.  There is a prospect that this might occur without creating adverse character and amenity impacts.  A design that incorporates taller aspects of the proposed development towards the rear of the subject land is more likely to be consistent with the existing neighbourhood character.  However, on the evidence presented, I am not persuaded that there will be no adverse character and amenity impacts if future development applications are allowed to proceed in the manner proposed under the variation request.
  2. [194]
    The nominated zone codes are drafted to achieve outcomes that are considered appropriate for land included in the relevant zone.  For example, the character and amenity outcomes sought in the Medium density residential zone code are those that are considered appropriate to achieve the character and amenity outcomes sought for land in that zone.  I infer that when including land in that zone, the Council, as the planning authority, has considered interface issues, at least in broad terms, and determined that the interface can be appropriate managed by assessment of future development against the codes. 
  3. [195]
    Here, there is no such decision by the planning authority.  The evidence presented by Southway Services is insufficient to persuade me that the potential interface issues will be appropriately addressed through future development applications for two reasons.  First, as was noted by Mr Buckley, given the absence of design detail, it is not possible to assess the proposed development against many of the provisions that regulate the design, the built form parameters, and the facilities to be provided by developments of the nature proposed.[178]  Second, approval of the development application and variation request will facilitate future development applications that are assessed only against the nominated codes.  As such, it cannot be assumed that the final design will address requirements of the strategic framework, such as the requirement that housing choices are integrated within the communities and neighbourhoods and designed with careful consideration of impacts on local amenity.[179]
  4. [196]
    The evidence also persuades me that the opportunity to redevelop the subject land with more intensive built form, without unacceptable impact on the character and amenity of the area, is not limited to residential redevelopment of the subject land.  The opportunity also exists for a redevelopment of the subject land for industrial development with a more intensive built form.  In those circumstances, I have difficulty accepting Mr Richards’ opinion that the proposed development would make a positive contribution to the local area, far more than a low impact industrial use.
  1. [197]
    As for the impact of the change in traffic, Southway Services has not directed my attention to evidence that satisfies me that the change will result in a positive amenity impact. 
  2. [198]
    On the evidence before me, while there is an opportunity to redevelop the subject land with more intensive built form, I am not persuaded that there will be no unacceptable character or amenity impacts arising from the built form associated with the proposed development.

Is there a need for the subject land to be retained for low impact industry uses?

  1. [199]
    The potential loss of industrial land is a relevant matter that is to be considered when determining whether, on balance, the proposed development should be approved or refused.  Whether the loss of industrial land weighs heavily against approval will turn on the facts and circumstances of each case.  Southway Services accepts this.[180] 
  2. [200]
    In this case, the relevant facts and circumstances relied on by the parties raise the following questions for consideration:
  1. 4.What is the policy with respect to retention of land for industry?
  2. 5.Is the subject land appropriate for ongoing use for industry?

What is the policy with respect to retention of land for industry?

  1. [201]
    In their joint Economic Need Report,[181] Mr Duane and Mr Brown outline what they regard as the key principles and policies in the contemporary planning documents.  Their analysis considers provisions in the South East Queensland Regional Plan 2009, Shaping SEQ – South East Queensland Regional Plan 2017, City Plan, and Brisbane Industrial Strategy 2019: Securing Brisbane’s Industrial Future (“Brisbane Industrial Strategy 2019”). 
  2. [202]
    City Plan and the South East Queensland Regional Plan are relevant to the assessment pursuant to s 45(5)(a) of the Planning Act 2016 and s 31 of the Planning Regulation 2017
  3. [203]
    City Plan has identified pockets of land throughout Brisbane that are to be used for low-impact industrial services to effectively service businesses and residents.[182]  As I have already mentioned in paragraph [80] above, City Plan contains an evident planning intention to facilitate, and maintain the long-term viability of, industrial uses on land in the Low impact industry zone.  The opportunities for low impact industry are intended to be preserved.[183]  The Low impact industry zone is also encouraged to be used for Service industry uses and Research and technology industry uses.[184]  Industrial uses in the Low impact industry zone are intended to have a built form, mass, and setback that contribute to a high standard of amenity.[185]
  4. [204]
    Brisbane Industrial Strategy 2019 is not a planning instrument under the Planning Act 2016.[186]  The foreword to the document describes it as a strategy document developed by the Council in response to the strong demand for Brisbane’s limited supply of industrial land from both industrial and non-industrial uses.[187]  The document says it was developed from extensive background research, analysis, and stakeholder engagement.[188]  As Mr Duane explains, Brisbane Industrial Strategy 2019, and the draft strategy that Council released for consultation in June 2021 titled “Our Productive City: Brisbane’s Industrial Future”, are useful resources for expert economists when considering the need for industrial land in Brisbane.[189]  Their contents are relevant under s 45(5)(b) of the Planning Act 2016
  5. [205]
    The Brisbane Industrial Strategy 2019 and the draft 2021 strategy are consistent with the policy position outlined in City Plan.  They explain that the need for professional and skilled workers is increasing as industrial businesses evolve.  To attract them to work in the sector, industrial areas need facilities and amenities that are comparable to other work environments.[190]  This policy is reflected in performance outcome PO13 of the most recent version of the Industrial Code, which requires that industrial development create a socially, visually, and physically amenable work environment.[191]

Is the subject land appropriate for ongoing use for industry?

  1. [206]
    Mr Duane and Mr Brown each gave evidence about the appropriateness of the subject land for ongoing use for industry.
  2. [207]
    Mr Duane opines that there is limited demand for the subject land to continue as an industrial use.  His opinion in this regard is premised on seven matters.[192]  First, there is a significant supply of industrial land to serve the broader Brisbane and South-East Queensland Region for the next 25 years and beyond.  Second, there is just under 25 years supply of industrial land in the Brisbane local government area.  Third, the Council’s planning policies are trying to protect industrial land, particularly valuable employment producing land.  Fourth, the subject land sits outside the designated South West Industrial Gateway Major Industrial Area.  It is in the Low impact industry zone and has been used for car storage or distribution for many years.  Fifth, Mr Duane opines that the subject land does not meet many of the requirements of modern industrial users, which he says are transforming to 24-hour operations and the use of B-Double trucks and the like.[193]  Mr Duane says that the subject land is quite small at 6.9 hectares; it does not allow for B-Double access; and it is unlikely to be able to operate over an extended period given the location of uses, such as a hotel and residential accommodation, nearby.  He says that the characteristics of the subject land, being low impact industry zoned land surrounded by sensitive uses,[194] will limit to a large degree the types of uses that would look to locate on the subject land.[195]  Sixth, the land to the west of Toohey Road that is in the General industry zone incorporates many low impact industry uses such that, even with the loss of the subject land for industrial uses, there is ample industry zoned land to serve local residents and businesses.  Seventh, the use of the subject land for advanced manufacturing and knowledge based industry is highly uncertain given the requirements for clustering of facilities, the cost of land (and the difficulty it presents in competing with low cost countries to attract advanced manufacturing) and the small developable footprint of the subject land.
  3. [208]
    Mr Brown opines that although there is a significant amount of industrial land within South East Queensland, it is disproportionately provided in the Ipswich local government area.  He opines that industrial land supply within Brisbane’s local government area is expected to be exhausted prior to 2041.  He says there is continued and growing demand for industrial floor space within the locality and the subject land can fulfil a meaningful role in the locality’s industrial future.  He says Brisbane remains an in-demand location for high value industrial activities, particularly in the advanced manufacturing and knowledge intense industrial activities.  Redevelopment of brownfield industrial sites is occurring within Salisbury to accommodate high value industrial uses.  Mr Brown supports his opinion by reference to several examples of knowledge intense industrial uses and advanced manufacturing enterprises located in Salisbury.
  4. [209]
    Mr Brown says that the amenity of the subject land and its accessibility to worker support services such as centre uses, creates an opportunity for the subject land to accommodate high value industrial uses within the advanced manufacturing, research, and technology space.  He says those uses do not have the same heavy vehicle requirements as other industrial uses, nor do they involve material offsite impacts.  Further, Mr Brown says that the subject land is strategically located at the eastern most extent of the South West industrial gateway and proximate to multiple research and technology hubs within the immediate locality and its surrounds. 
  5. [210]
    With respect to the size of the subject land, Mr Brown notes that the subject land is one of the larger single land holdings in the suburbs of Salisbury and Nathan.  He says it is sufficiently large to accommodate a range of new industrial uses. 
  6. [211]
    Whether there is 25 years supply of industrial land, as predicted by Mr Duane,[196] or whether the supply will be exhausted prior to 2041, as predicted by Mr Brown, I am satisfied there is an ongoing need to maintain the subject land for uses consistent with its zoning for each of the following three reasons.
  1. [212]
    First, as I have already noted, Mr Duane says the characteristics of the subject land are such that the type of industrial uses that will look to locate at the subject land are limited.[197]  His opinion is founded on the limitations that would be required to ensure there is not an unacceptable amenity impacts on surrounding residential development, such as limitations on operating hours and traffic generation. 
  2. [213]
    The limits on industrial uses about which Mr Duane is concerned are of little moment.  They are consistent with the inclusion of the subject land in the Low impact industry zone.  That is apparent when one considers the definition of a Low impact industry use, namely:[198]

“Premises used for industrial activities that include the manufacturing, producing, processing, repairing, altering, recycling, storing, distributing, transferring, treating of products and have one or more of the following attributes:

  • negligible impacts on sensitive land uses due to off-site emissions including aerosol, fume, particle, smoke, odour and noise;
  • minimal traffic generation and heavy-vehicle usage;
  • demands imposed upon the local infrastructure network consistent with surrounding uses;
  • the use generally operates during the day (e.g. 7am to 6pm);
  • off-site impacts from storage of dangerous goods are negligible;
  • the use is primarily undertaken indoors.”
  1. [214]
    Second, I accept the evidence of Mr Josh Walker, the town planner retained by the Council, that the subject land is suitable for the types of uses that are encouraged in the Low impact industry zone.  The subject land has ready access to an efficient road network that connects directly to key higher order roads.  It also has limited exposure to adjoining residential uses.  It is effectively separated from residential uses on three of its boundaries by the combination of regional-scale open space, topography, adjacency to a neighbourhood centre and a road.[199]
  2. [215]
    Further, I am not persuaded that the separation of the subject land from other industrial land west of Toohey Road indicates that its preservation for uses contemplated in the Low impact industry zone is not warranted.  As was accepted by Mr Duane during cross-examination, the subject land has attributes that support the provision of a reasonable level of amenity and that make it attractive to knowledge-based industries.  Those attributes include the subject land’s size, its proximity to a neighbourhood centre, its proximity to public transport, and its proximity to green space.  The proximity to the Griffith University and QEII Hospital might also attract knowledge-based industries to the subject land.[200]  The subject land is also strategically located to benefit from high accessibility to a major workforce catchment.  As such, use of the subject land in a manner that is consistent with its Low impact industry zoning would accord with the policy to enhance worker amenity, which Mr Duane accepts is a sound policy.[201]
  3. [216]
    Third, assuming that Mr Duane is correct that many modern industrial uses require flexibility in terms of hours of operation, transportation, storage of dangerous goods and the like,[202] it does not necessarily follow that there is no, or a limited, ongoing need for the land to be preserved for uses consistent with its inclusion in the Low impact industry zone.  Similarly, the availability of land to the west of Toohey Road in the General industry zone that can, and does, incorporate low impact industry uses to serve local residents and businesses does not persuade me that there is no need to preserve the subject land.  As the economists appropriately recognise, all the contemporary planning documents outline a policy to keep industrial lands where feasible.[203]  Mr Duane accepts that the policy is economically sound.[204]  He confirmed that the need for land in the Low impact industry zone is not diminishing, and economic activity continues to be generated by low impact industry uses.[205] 
  4. [217]
    Further, the economists agree that the form of industrial uses is changing such that the next generation of industry is typically more knowledge intense, incorporating elements of advanced manufacturing, advanced logistics and industrial design.[206]  City Plan captures those knowledge-based industries and high-value industries in its definition of “Research and technology industry” use.[207]  That form of use is contemplated in the Low impact industry zone.  Together with Low impact industry uses, they play an important role in providing employment.[208] 
  5. [218]
    As was acknowledged by Mr Duane, within the existing urban area of up to 15 kilometres from the central business district, finding new land for industrial development is difficult.  Further, once industrial land is lost to a residential use, there is a “very, very low probability of it being converted back to industrial land.[209] 
  6. [219]
    These matters, individually and collectively, are weighty considerations that tell strongly against approval of the proposed development.

Is it appropriate to exercise the planning discretion to facilitate use of the subject land for accommodation activities?

  1. [220]
    Whether an approval is in the public interest is a question of fact to be determined in the exercise of the planning discretion.  A planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted.[210]  The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016.  It is not a matter of mere caprice.  The decision must withstand scrutiny against the background of the applicable planning scheme and proper planning practice.[211]  It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other.  It should recognise that the provisions of a planning scheme are seen to embody the public interest and, as such, there is a public interest in compliance with them.[212]  However, not every non-compliance is contrary to public interest or will warrant refusal.  The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case, which includes a consideration of the “relevant matters”.[213]
  2. [221]
    Having regard to the matters set out above, I am satisfied that the proposed development is contrary to the evident planning intention to facilitate, and maintain the long-term viability of, industrial uses on land in the Low impact industry zone.  This is a matter that the Council submits should be decisive in this appeal.  On balance, I agree for the following reasons.
  3. [222]
    In the circumstances of this appeal, there are two considerations that point strongly towards refusal of the proposed development.
  4. [223]
    First, there are material non-compliances with City Plan.  Southway Services accepts that the proposed development is at odds with the planning strategy to preserve industrial land.  Having regard to the verbiage of City Plan, I am of the view that the strategy is an important one.  The strategic intent in City Plan explains that the vision sought to be achieved is that Brisbane will be a vibrant and prosperous city.[214]  That strategy is underpinned by five themes.  While the outcomes associated with Theme 2 (Brisbane’s outstanding lifestyle) recognise the importance of a diverse range of housing opportunities,[215] the outcomes associated with Theme 1 (Brisbane’s globally competitive economy) explain the importance of Brisbane’s industrial economy to the city’s growth prosperity and the need to accommodate an additional 290,000 jobs (and 443,000 jobs for metropolitan Brisbane).[216]  As is noted in the strategic framework, the opportunities for low impact industry throughout the city are to be preserved in support of a strong population and economic growth.[217] 
  1. [224]
    Second, there is no suggestion that the strategy to preserve industrial land is unsoundly based.  To the contrary, the economists accept the strategy to be sound.[218]  Further, for reasons explained in paragraphs [206] to [219] above, I am satisfied that the subject land is suitable for uses encouraged in the Low impact industry zone and that there is an ongoing need to maintain the subject land for such uses.  In those circumstances, the planning intentions relevant to the inclusion of the subject land in the Low impact industry zone should be given their full force and effect.  This is a weighty consideration that points strongly towards refusal in the circumstances of this appeal.
  1. [225]
    Balanced against those two weighty considerations are the relevant matters on which Southway Services relies to contend that departure from City Plan should not be determinative in this appeal.  Some relevant matters I accept are established and support approval, others I do not.  The relevant matters relied on are:
    1. (a)
      there is a need for the proposed development;
    2. (b)
      there is no compelling need for the land to be retained under its present zoning controls;
    3. (c)
      the overall public interest is best served by the development of the subject land in the manner proposed as the proposed development, if approved, will result in:
      1. the cessation of existing industrial uses and light industrial uses adjacent to residential areas;
      2. the provision of housing choice in an accessible location; and
      3. the community having choice to age in place in this neighbourhood;
    4. (d)
      the proposed development will positively contribute to the diversity and mix of modern housing choice in the locality.  There will be an improvement in the choice and affordability in respect of:
      1. the retirement housing options available for ageing in the community for residents of this area and other nearby localities.  The proposed development will provide improved access to modern accommodation that is designed to enable ageing in place, thereby reducing or avoiding the need to access other forms of care and support for many.  This is in line with the Commonwealth Government ageing policy, the direction that has come out of the Royal Commission into Aged Care Quality and Safety, and contemporary, and appropriate, aged care planning.  The proposed development will enable retirees to remain within this local area, enabling continuity of care, society, and lifestyle.  Absent the proposed development, there is a gap in the provision of retirement and aged care facilities near the subject land.  Further, the subject land offers the unique opportunity to deliver intergenerational living and activity for older Australians, which is enormously beneficial for achieving “normal life” and wellbeing as opposed to being separated from all generations in “gated off” and more traditional retirement and aged care sites.
      2. student accommodation near one of Queensland’s major universities; and
      3. housing opportunities for workers in the south-western industrial sector of Brisbane;
    5. (e)
      the proposed development represents logical and efficient infill development of an underutilised site.  It will provide modern housing choice in an already residential locality and will be self-sufficient in terms of active and passive recreational facilities;
    6. (f)
      the height, bulk, scale, and likely design variety of the proposed development will provide:
      1. improved variety of modern built form and streetscape outcomes for the local community;
      2. an appropriate interface between the existing established residential development and the proposed mixture of compatible residential development;
      3. an appropriate opportunity for alternative forms and density of housing consistent with the planning aims of the South East Queensland Regional Plan 2017 for optimal use of land in the urban footprint, within reason, including residential development in the form of the “missing middle”;
    7. (g)
      the proposed development will create employment opportunities during the construction phase and during the lifetime of the development;
    8. (h)
      the nature and location of the proposed development is both appropriate in town planning terms and consistent with the reasonable expectations of the community in circumstances where:
      1. the land is not identified as a Strategic Inner-City Industrial Area within the strategic framework of City Plan;
      2. whatever need exists for low and medium impact industries locally can be met west of Toohey Road;
      3. the appropriateness and sustainability of the existing industrial use in such close proximity to a well-established residential area has been overtaken by structural land use changes in the locality including the on-going growth of Griffith University, increased industrial development in Archerfield and Acacia Ridge, and improved rail infrastructure;
      4. the proposed development provides for a lesser height, bulk and scale than if the subject land was developed for purposes consistent with the Low impact industry zone;
      5. the proposed development is consistent with the future intended land use of the subject land as it is in the Suburban Living Area under Brisbane CityShape 2031;
    9. (i)
      the proposed development, if approved, will generate no unacceptable adverse amenity impacts;
    10. (j)
      the proposed development will have a positive amenity impact as it will remove the potential for truck traffic associated with development under the current Low impact industry zoning and instead only generate a form of traffic that is more in keeping with the surrounding residential precinct;
    11. (k)
      the proposed development is, or can be made to be, compliant with the requirements of the Flood overlay code and the Bushfire overlay code; and
    12. (l)
      the development application was accompanied by sufficiently detailed information that was available to submitters such that future submission rights are not unduly affected.[219]
  2. [226]
    I accept that each of these matters are relevant to the exercise of the discretion. 
  1. [227]
    Having regard to the evidence, I accept that the matters referred to in subparagraphs [225](a), (d)(iii) (save for the contention that there will be an improvement in affordability),[220] (e) (save for the contention that the subject land is underutilised),[221] (f)(i) and (iii) (save for the reference to the “likely design variety”),[222] and (k)[223] have been established and support approval.[224]  The matters referred to in subparagraphs [225](b),[225] (d)(ii),[226] (f)(ii),[227] (h)(iii)[228] and (iv),[229] (i),[230] (j),[231] and (l)[232] have not been established. 
  1. [228]
    With respect to the matters referred to in subparagraphs [225](c)(i), (ii), (iii), I accept that, if approved and constructed and operated in the manner anticipated by the experts retained by Southway Services, the proposed development will result in:
    1. (a)
      the cessation of existing industrial uses and light industrial uses adjacent to residential areas;
    2. (b)
      the provision of housing choice in an accessible location; and
    3. (c)
      the community having choice to age in place in this neighbourhood.
  2. [229]
    However, I am not persuaded that approval of the proposed development will result in a proposed development that is constructed and operated in the manner contended by Southway Services and assumed by the experts it retained.[233]  Further, for the reasons that I will explain below, I am not persuaded that the overall public interest is best served by the development of the subject land in the manner proposed.
  3. [230]
    With respect to subparagraph [225](d)(i), I accept that approval of the proposed development will facilitate development options that might improve choice in the manner contended by Southway Services.[234]  Although I accept much of the evidence of Ms Wells, it does not follow that the possibility of improved choice of the type referred to in subparagraph [225](d)(i) is determinative in this case.  Need is a relative concept that will be given greater or lesser weight depending on the circumstances of the case.[235]  The weight to be attributed to it in the exercise of discretion is influenced by other matters established by the evidence to which I will now turn.
  4. [231]
    Having regard to the evidence of Ms Wells about the residential care facility catchment area, the predicted population of that area and the current residential care facilities within the residential care facility catchment area, I am satisfied that there is a latent unsatisfied demand for residential care facilities.  This is reinforced by Ms Wells’ evidence about the quality of the residential care facilities in the residential care facility catchment area and the retirement facility catchment area.
  5. [232]
    The evidence also demonstrates that, absent further development, there is residential population in the retirement facility catchment area of sufficient size to support further retirement facilities by 2030, and even by 2025.  This is established by a combination of the evidence about the trade area, the population of the trade area, and the current facilities in the trade area (including that available at Seasons Living), and Mr Duane’s evidence about appropriate penetrations rates (which I prefer to that of Mr Brown). 
  6. [233]
    As is apparent from subparagraph [225](d)(i), the case advanced by Southway Services is not limited to evidence that there is a demand for the residential care and retirement facilities that is not presently met.  Southway Services also relies on several qualitative matters that is says are indicative of a need for the proposed residential care and retirement facilities.
  7. [234]
    I have already addressed the qualitative matters relevant to residential care facilities in paragraphs [143] to [155] above.  In relation to retirement facilities, having provided the quantitative analysis, Ms Wells states:

“More importantly, a review of the existing and proposed retirement villages, (sic) identifies limited access to modern retirement village accommodation that enables ageing in place in circumstances where, just as with aged care facilities, the community need for retirement village facilities needs to be considered in terms of quality and characteristics, not just raw numbers …”.[236]

  1. [235]
    Ms Wells identifies that there are 10 retirement villages operating 891 dwellings in the retirement facility catchment area.  She provides details in relation to each of them and provides them with a competitive ranking. 
  2. [236]
    Ms Wells ranks about half of the available stock as “low”.  This is reflective of her opinion that those sites:
    1. (a)
      are tired and more traditional in appearance;
    2. (b)
      offer smaller scale, multifunctional, older and tired communal spaces;
    3. (c)
      offer broad acre sites not designed for ageing, with some resulting in social isolation due to the mobility hurdles they present to residents;
    4. (d)
      offer homes that are primarily single level (or two levels with steps) with limited choice in accommodation.  The majority offer only studio, 1- or 2-bedroom homes with a mix of attached and detached car spaces, carports and garages;
    5. (e)
      were not designed for ageing, resulting in limited scope to age in place (as is the current community expectation) and necessitating a move to residential aged care for those with higher needs;
    6. (f)
      are not offered as mixed-use communities and therefore provide limited access to intergenerational activity on a day to day basis; and
    7. (g)
      do not meet the needs (and for many the expectations) of the current and future retirement village consumer in that they do not enable ageing in place to higher levels in line with the outcomes of the Royal Commission into Aged Care Quality and Safety.[237]
  3. [237]
    Ms Wells says the other half have been developed as modern village stock offering:
    1. (a)
      modern apartments with a choice of primarily 2 or 3 bedrooms;
    2. (b)
      modern communal spaces for the desired level of social activity; and
    3. (c)
      a design that accommodates ageing in place and more efficient delivery of ageing services.[238]
  4. [238]
    Ms Wells concludes that a review of the existing and proposed retirement villages identifies limited access to modern retirement living sites that would enable residents to age in place to high levels.  She also opines that there is limited access to sites designed as a “home for life” with a choice in how and where you may age and receive care.  There are no older or modern sites offering a full care continuum with choice of accommodation type and service delivery, i.e. independent living with care services; assisted living as a complete accommodation, care and financial package; and frail aged care through either funded residential aged care or private aged care.  There is no existing or proposed modern alternatives such as strata title retirement communities or modern lease villages as an alternative to retirement villages.  There is no access to retirement living sites as part of a modern, mixed use community offering intergenerational activity.  Ms Wells opines that without an increase in modern supply, the retirement facility catchment area will not have the appropriate housing choices to meet the “future of ageing” identified by the Royal Commission and rapidly changing consumer expectations.[239]
  5. [239]
    Mr Brown cavils with Ms Wells’ assessment of the qualitative considerations.  He says that her opinions are predominantly founded on the age of the offer.  He does not consider the age of facilities to be indicative of their benefit because operators make ongoing capital investments and refurbishments to improve the quality of dwellings.[240]  Further, during cross-examination, Mr Brown indicated that he was unconcerned by the fact that about 50 per cent of the facilities available were of a form that was not likely to be satisfactory to the families and the aged people who require them.[241]
  6. [240]
    I disagree with Mr Brown’s characterisation of Ms Wells’ evidence about the quality of the facilities.  As I understood her evidence, Ms Wells’ analysis of the quality of the current offer was focussed on whether the retirement facilities offer a design that accommodates ageing in place and more efficient delivery of ageing services, and whether the offer accords with the outcomes from the Royal Commission.[242] 
  7. [241]
    I accept that, if approved, constructed, and operated as anticipated by Ms Wells, the proposed development will provide increased choice.  Of itself, this finding does not demonstrate a need for the proposed development.  However, in combination with the findings made above, I am satisfied that an approval, coupled with construction and operation in the manner anticipated by Ms Wells, would improve the services and facilities available in the local area.  It will benefit the community by improving the comfort and efficient lifestyle of the community.
  8. [242]
    As such, the need for further retirement facilities is supported by the evidence of Ms Wells about the quality of offer referred to in paragraphs [236] to [238] above.
  9. [243]
    In relation to the proposed development, Ms Wells opines that the subject land can, and should, deliver modern retirement and aged care accommodation integrated with lifestyle, social, support and care services or programs.  She says it should also offer a mix of important housing choices that enable desirable and efficient ageing in place for retirees, senior and frail aged persons.  It should provide an increased level of care and support in the residents chosen environment through:
    1. (a)
      a range of well sized individual accommodation designed for persons to age in place across independent living, assisted living and frail aged care accommodation;
    2. (b)
      indoor and outdoor communal areas that enable the desired activity, social spaces, wellbeing, and health activities; and
    3. (c)
      an option for the “last move” for prospective residents.  This would be achieved through scalable structure activities, programs and technology inclusions to enable seniors to maintain independence, access support and care (including specialised care such as dementia or palliative care), access restorative and maintenance services, and age in place.
  10. [244]
    As such, Ms Wells says that there is a clear social and community need for the proposed development on the subject land.  She says that refusing the proposed development will severely restrict choice, limit quality and desirable ageing in place options, restrict access to non-institutional environments and result in the loss of older Australians from the catchment area as they would need to relocate to access modern alternatives.
  11. [245]
    The Council identifies five matters that it relies on as important context when considering the evidence of Ms Wells and the need for the proposed residential aged care and retirement facilities.  First, there is no certainty that approval of the proposed development will result in the provision of 96 units in a residential aged care facility and the 254 independent living units in a retirement facility.  According to the level of assessment table, those uses are only possible options in the “4 Storey Precinct (Retirement/Apartments)”.  Second, even if the resultant approval ensured that the uses were not optional, there is no compulsion to deliver both residential aged care and retirement facility uses.  Third, Southway Services seeks a preliminary approval with a life of ten years, so there may be a considerable delay before the uses are delivered.  Fourth, the nature of the application is such that, even if the uses are delivered, at some future time, their make-up, market positioning, layout, facilities, and level of care are entirely unknown.  Fifth, although the area of the precinct to be allocated to residential aged care and retirement facilities has not been identified, having regard to the precincts, it appears to represent less than 20 per cent of the total site area, or in the order of 1.3 hectares.  As such, any need for residential aged care and retirement facilities on one part of the subject land should not be used to justify the balance of the residential development sought.[243]
  12. [246]
    With any development, there is a degree of uncertainty about the final product that will be delivered.  As was noted by His Honour Judge Robin in Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors,[244] full detailed design for a development is often left for later, once the Court has decided that a proposal should proceed.  Similar observations were made by His Honour Senior Judge Skoien with respect to a rezoning application in Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor.[245]  His Honour observed:

“On an application for a rezoning it would obviously be unreasonable in most cases to require an applicant to supply detailed plans and specifications for the development which is to be constructed if the application should be successful.  That would often involve great expense which would be wasted if the application were refused.  All that the applicant need do is supply conceptual plans which indicate with reasonable accuracy the proposed development together with evidence that it can be developed in accordance with accepted principles of planning and engineering procedures.  If the application should be successful conditions can properly be imposed requiring that technical and engineering works be carried out to the satisfaction of the Council’s proper officer.  If the matter is sufficiently sensitive that satisfaction may be required before approval to rezone is given.”

  1. [247]
    Further, the grant of any approval does not guarantee delivery of the subject development.  There are many reasons that an approved development may not proceed, including changes in market conditions or changes in intention coincident with a change in ownership of the land. 
  2. [248]
    It does not necessarily follow that an applicant for a development approval will never be required to descend into matters of detail before being granted an approval.[246]  Whether the degree of uncertainty attending a development tells against approval is a question of fact and degree that turns on matters of impression.
  3. [249]
    Here, the issue is whether the uncertainty is such as to detract from Ms Wells’ evidence about the benefit to the community that would result from approval of the development.  Further consideration of the evidence of Ms Wells is informative in this regard.
  4. [250]
    Ms Wells describes the proposed development about which she provides her evidence in paragraphs 13 to 19 of her first statement of evidence.[247]  She says it is likely that the mix of accommodation will include:
    1. (a)
      around 96 dwellings for more frail older Australians who require a complete accommodation and care solution for high care needs, which may be delivered as Commonwealth residential aged care or private aged care, or a mix of both; and
    2. (b)
      around 254 dwellings as a retirement village for older Australians (likely to be around 75 years or over upon entry) seeking “a home for life” with appropriate accommodation, support, and care to remain independent, together with access to medical and allied support as needs change from basic support to high level care.  This may also include some dedicated assisting living (complete accommodation, care, and financial package) for moderate care needs.
  5. [251]
    Further, Ms Wells says, “the development will offer a larger retirement and aged care community”.[248]  She goes on to describe the benefits that will follow from a large scale retirement village.  It is apparent from her evidence in that respect that she has assumed that the retirement facility will incorporate at least 100 units.  Ms Wells also says the subject land will offer a significant intergenerational opportunity through general residential housing and student accommodation.
  6. [252]
    It is clear from Ms Wells’ evidence that she appreciates that there is no final design, and that there may be some changes to the ultimate composition of the residential aged care and retirement facilities components of the proposed development.  Ms Wells opines that this is a benefit, rather than a disbenefit, because it will allow the development to address the requirements of the catchment area population and new trends with respect to the physical, emotional, and social well-being of the ageing population.
  7. [253]
    The assumptions made by Ms Wells reflect an option that might be achieved in the event of approval.  As such, her evidence is relevant.  The benefits identified by Ms Wells are of significant force.  I am satisfied that Ms Wells’ evidence lends weight to an approval.  However, I do not share Ms Wells’ confidence that an approval will deliver modern retirement and aged care accommodation in the form referred to in paragraph [241] above, or that it will offer significant intergenerational opportunity. 
  8. [254]
    There are four matters that cause me significant doubt about the extent to which an approval will deliver the development anticipated by Ms Wells and the associated benefits to the community.  The first is Southway Services’ steadfast refusal to provide further detail throughout the application process, and its representation during the application process that “[a]ny use ultimately approved within this ‘preliminary approval’ does not mean that all will be applied for or constructed onsite”.[249]  Second, during the hearing, Southway Services’ confirmed that it does not seek approval for a minimum number of dwellings with respect to the identified uses.[250]  Third, the evidence of the economists about student accommodation does not support Ms Wells’ assumption that the proposed development will offer significant intergenerational opportunity.[251]  Fourth, the approval is sought for a period of ten years.  During cross-examination Ms Well accepted that, during the life of the approval, the latent unsatisfied demand identified by her may be met by other developments.[252]  This could diminish the benefit associated with the approval.  Accordingly, the weight I am prepared to give Ms Wells’ evidence as supportive of an approval is tempered by the lack of certainty about the ultimate mix of uses, its form, and the timeframe over which any development under the approval is sought to be delivered. 
  9. [255]
    For present purposes, I accept the contention in subparagraph [225](g).  Although Southway Services did not direct my attention to evidence that demonstrates that the proposed development will create employment opportunities during the construction phase and during the lifetime of the development, it is a matter that I am prepared to infer.  As such, this is a matter that supports approval.  However, it is of limited weight as it has not been established that the employment opportunities are equal, or superior, to those which would be achieved by development as anticipated by City Plan. 
  10. [256]
    With respect to subparagraph [225](h), I accept that the land is not identified as a Strategic Inner-City Industrial Area within the strategic framework of City Plan; and that the industrial area to the west of Toohey Road is available to address the local need for low and medium impact industries.  To the extent the proposed development would facilitate low-medium density residential development, it is consistent with the inclusion of the land in the Suburban Living Area under Brisbane CityShape 2031.  These matters support approval. 
  11. [257]
    That said, the weight that I attribute to these matters is diminished because the inclusion of the land in the Suburban Living Area under Brisbane CityShape 2031 is also consistent with the need to preserve it for the types of uses encouraged in the Low impact industry zone.  As is recorded in s 3.7.1(1)(g)(ii) of City Plan, Brisbane’s Suburban Living Areas are intended to include industrial uses as indicated in the zoning pattern.  The assessment benchmarks in the Low impact industry zone code and the Industry code facilitate the location of such uses in residential areas in a manner that ensures appropriate outcomes.[253]
  12. [258]
    On balance, for the reasons explained above, the relevant matters established by Southway Services fall well short of persuading me that an approval should follow.

Conclusion

  1. [259]
    The need to provide a diversity of housing, including housing that permits ageing in place, is an important planning issue.  It is recognised in City Plan.  The Council’s recent planning indicates that housing that permits ageing in neighbourhood is also an important planning issue.
  2. [260]
    Here, the proposed development attempts to address those planning issues.  However, for reasons given above, Southway Services has failed to establish that these important planning goals will be advanced in a meaningful way by the grant of a preliminary approval and a variation approval.  To the contrary, after considering all the evidence and Southway Services’ submissions, I am left with the impression that a key driver for the development application and variation request is the maintenance of flexibility in the ultimate development outcome to be achieved on the subject land.  The application seeks such flexibility that it lacks certainty about the mix of uses and the form of development that might ultimately occur on the subject land.  Consequently, I have little confidence that the grant of a preliminary approval and a variation approval would deliver many of the benefits to which Southway Services refers.
  3. [261]
    Further, City Plan has already struck the balance between meeting the need for development of the kind proposed (and advancing the goals associated with housing diversity) and providing opportunity for development that will contribute to Brisbane’s industrial economy.  City Plan makes provision for the need in question to be met in the various residential zones.  A sound town planning reason would be required to approve an application that results in a development outcome that seeks to restrike this balance in a materially different way. 
  4. [262]
    Southway Services has failed to persuade me that, in the circumstances of this case, the balance struck between the goals associated with Brisbane’s outstanding lifestyle and the provision of housing diversity and the goals associated with prosperity of Brisbane’s industrial economy and the preservation of industrial land should be adjusted by granting the variation approval.
  5. [263]
    The need for further residential development, and the prospect of improved choice in retirement housing options, even if coupled with the potential for an absence of amenity impacts, does not provide a sound town planning basis to approve the proposed development or to grant a variation approval.
  6. [264]
    Southway Services has not discharged the onus.  The appeal should be dismissed.

Footnotes

[1]  Under the Planning Act 2016 (Qld), that part of a development application that seeks to vary the effect of the planning scheme is referred to as a variation request.  The resultant approval is a variation approval.

[2]  The development application was made under the Sustainable Planning Act 2009 (Qld), but it was not decided before that Act was repealed.  Pursuant to s 288 of the Planning Act 2016, the Council was required to assess and decide the development application under the Sustainable Planning Act 2009.  Despite that, pursuant to s 288(5) of the Planning Act 2016, the resulting decision notice is taken to have been made under the Planning Act 2016, and pursuant to ss 229 and 311(4) of the Planning Act 2016, the appeal is brought under the Planning Act 2016.  See Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763.

[3] Planning and Environment Court Act 2016 (Qld) s 47.

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

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

[6]  I infer that it was made around this time, as that is the date on the application forms that were tendered.  The acknowledgment notice and the Certificate of the Chief Executive Officer of the Council indicate that the application was properly made on 27 June 2017.

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

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

[9]  The Council tendered Certificates of the Chief Executive Officer of the Council, under s 232 of the City of Brisbane Act 2010 (Qld), certifying that the records of the Council show that the development application was properly made on 27 June 2017 and that version 6 of City Plan was in effect at that time.

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

[11]  I was provided with version 21.  The business day prior to the commencement of the hearing, version 21 was superseded by version 22.  See Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 6 September 2021) 28.  There was no challenge to the evidence of Mr Walker that he compared version 21 and version 22 and that there are no differences between them that are material to this trial.  The amendments relate to Camp Hill.  See Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 9 September 2021) 53.

[12]  [2019] QPEC 59; [2020] QPELR 732.

[13]  [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409.

[14]  [2018] QCA 84; (2018) 230 LGERA 374.

[15]  [2021] QCA 95.

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

[17]  [2018] QCA 84; (2018) 230 LGERA 374.

[18]  [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409.

[19]  [2020] QCA 41.

[20] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [176].

[21] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [178]-[179] (citations omitted).

[22]  [2020] QCA 253; [2021] QPELR 987.

[23]  [2020] QCA 257; [2021] QPELR 1003.

[24]  [2020] QCA 273; [2021] QPELR 1321.

[25]  [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[26]  [2019] QPEC 59; [2020] QPELR 732.

[27] Planning Act 2016 s 43(7).

[28] Planning Act 2016 s 61(3). 

[29] Planning Act 2016 s 61(2).

[30] Planning Regulation 2017 s 32.

[31]  This is attached to my order of 9 September 2021 permitting the development application to proceed based on a minor change.

[32] Planning Act 2016 s 61(2).

[33]  Exhibit 2.03 p 54.

[34]  Exhibit 2.03 p 104.

[35]  Exhibit 2.03 p 105.

[36]  Exhibit 2.06 p 4 (emphasis added).

[37]  Exhibit 2.06 p 7 (emphasis added).

[38]  Exhibit 2.07 p 8.

[39]  Exhibit 2.16 p 7.

[40]  Exhibit 2.16 p 7.

[41]  Exhibit 2.16 p 10.

[42]  Exhibit 2.20 p 2.

[43]  Exhibit 2.21.

[44]  Exhibit 2.21 p 10.

[45]  Exhibit 2.21 p 13.

[46]  Exhibit 2.21 p 21 (emphasis added).

[47]  Exhibit 7.7.

[48]  See Planning Act 2016 s 43(7); City Plan Table 5.5.15.

[49]  See paragraphs [28] to [29] above.  I do not regard the description of the proposal as “a preliminary approval to vary the effect of [City Plan]” to be accurate.  It conflates what are two separate matters under the Planning Act 2016, namely a preliminary approval that approves development (s 49(2)) as distinct from a variation approval which approves variations.  See also Planning Act 2016, ss 63(2)(c) and (g).

[50]  Exhibit 12.02, p 2 [2(a)].

[51]  Exhibit 12.02, p 2 [3(b)].

[52] Planning Act 2016 s 43(7).

[53]  Exhibit 11.15.

[54]  Exhibit 12.02. 

[55]  Exhibit 11.15.  The concessions helpfully brought the real issues into focus.

[56]  Exhibit 11.15.

[57]  City Plan ss 5.3.1 and 5.3.3, and Table 5.5.15 and Planning Act 2017 s 45(5).

[58]  City Plan s 6.1(1).

[59]  City Plan s 6.2.5.1(1).

[60]  City Plan s 3.2.1.

[61]  City Plan s 6.2.5.1(2)(a).

[62]  City Plan s 3.3.1(1)(g).

[63]  City Plan s 3.3.1(1)(g).

[64]  City Plan s 3.3.1(1)(m).

[65]  City Plan s 3.3.4 Element 1.3, Table 3.3.4.1, specific outcome SO7.

[66]  City Plan s 3.3.4 Element 1.3, Table 3.3.4.1, land use strategy L7.

[67]  City Plan s 6.2.5.1(2)(b).

[68]  City Plan s 6.2.5.1(3)(a).

[69]  City Plan s 6.2.5.1(3)(b).

[70]  City Plan s 6.2.5.1(3)(f).

[71]  City Plan s 6.2.5.1(3)(e).

[72]  City Plan s 6.2.5.1(3)(d).

[73]  City Plan s 6.2.5.1(3)(c).

[74]  City Plan ss 6.2.5.1(3)(g) and (h).

[75]  This is the tenor of the concession.  Although the concession was that approval of the development application “does not preserve opportunities for low impact industry”, to simply adopt that concession ignores that the proposed variations do not remove the continued opportunity to develop in a manner that accords with the subject land’s inclusion in the Low impact industry zone, however unlikely that might be if there is also an opportunity to instead develop the land for (potentially more lucrative) residential uses.

[76]  See paragraph [72] above.

[77]  Exhibit 4.03 p 13 [26].

[78]  City Plan ss 3.2.1 and 3.4.1(1)(f).

[79]  City Plan ss 3.4.1(1)(g), 3.4.3 Element 2.2, Table 3.4.3.1, specific outcome SO2 and land use strategy L2, 3.7.1(1)(g)(v), 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO3 and land use strategy L3. 

[80]  City Plan version 21 ss 3.4.3 Element 2.2, Table 3.4.3.1, specific outcome SO2 and land use strategy L2, 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO3 and land use strategy L3.1, 9.3.18.2 2.

[81] HPC Urban Design and Planning Pty Ltd & Anor v Ipswich City Council & Anor [2019] QPEC 56; [2020] QPELR 534, 572-3 [225]-[226].

[82]  This is the version that applied at the time the development application was made.

[83]  Version 6 and version 21.

[84]  City Plan ss 3.4.1(1)(i) and 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO2 and land use strategy L2.  See also City Plan s 3.7.9 Element 5.8, Table 3.7.9.1 specific outcome SO1 and land use strategy L1.1 and the descriptions of the corridors at Ex 8.01 pp 112-8.

[85]  City Plan s 3.7.1(1)(a).

[86]  City Plan ss 3.7.1(1)(g) and 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO2 and land use strategies L2.1 and L2.2.

[87]  City Plan ss 3.7.1(1)(g) and 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO1 and land use strategy L1.

[88]  City Plan ss 3.7.1(1)(g) and 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO3 and land use strategy L3.

[89]  City Plan s 3.7.6 Element 5.5, Table 3.7.6.1, land use strategy L4.1.

[90]  City Plan s 3.7.6 Element 5.5, Table 3.7.6.1, land use strategy L4.2.

[91]  City Plan s 3.1(1).

[92]  City Plan s 3.2.1.

[93]  City Plan s 3.2.1.

[94]  City Plan s 3.2.1.

[95]  City Plan s 3.2.1.

[96]  City Plan s 3.7.1(1)(a).

[97]  City Plan s 3.4.1(1)(h).

[98]  City Plan s 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO1.

[99]  City Plan s 3.2.1.  This strategic intent is supported by the strategic outcomes, specific outcomes, and land use strategies for Theme 2: Brisbane’s outstanding lifestyle.

[100]  City Plan s 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO1 and land use strategy L1.

[101]  The importance of the strategy is evident from reading City Plan as a whole, including provisions of the strategic framework that relate to the CityShape theme.  See, for example, City Plan ss 3.7.1(1)(b)(iii) and (iv), (k), (l), and 3.7.9 Element 5.8, Table 3.7.9.1 specific outcome SO1 and land use strategy L1.1 and the descriptions of the corridors at Ex 8.01 pp 112-8.

[102]  City Plan s 3.7.9 Element 5.8, Table 3.7.9.1, specific outcome SO1 and land use strategy L1.1 and the descriptions of the corridors at Ex 8.01 pp 112-8.

[103]  See, for example, City Plan ss 6.2.1.2(4)(b), (c), (f)(iii), (g), (7)(a), (8)(a), 6.2.1.3(4)(a), (b), and (c).

[104]  City Plan s 3.7.1(1)(k).

[105]  City Plan s 3.7.1(1)(g).

[106]  City Plan ss 3.2.1 and 3.7.1(1)(g).

[107]  This strategic intent is supported by the strategic outcomes, specific outcomes, and land use strategies for Theme 2: Brisbane’s outstanding lifestyle.

[108]  City Plan s 3.7.1(1)(g).

[109]  City Plan s 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO6.

[110]  City Plan s 3.4.3 Element 2, Table 3.4.3.1, land use strategy L6.1.

[111]  Ex 8.01 pp 396 and 398.

[112]  City Plan s 3.4.3 Element 2, Table 3.4.3.1, land use strategy L6.2.

[113]  See City Plan s 3.7.6 Element 5.5, Table 3.7.6.1, land use strategies L6.1 and L6.2, and ss 6.2.1.3(2)(b), 6.2.2.4(2)(d), (4)(e), (5)(a), (b), and (c).  See also the Submissions on behalf of the Respondent, [87].

[114]  City Plan ss 6.2.1.2(4)(b), (c), (f)(iii), (g), (7)(a), (8)(a), 6.2.1.3(4)(a), (b), and (c). 

[115]  Exhibit 3.07 p 8 [23]; Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 61-2.

[116]  Exhibit 7.1.

[117]  City Plan s 6.2.1.2(8)(e).

[118]  City Plan ss 3.3.1(1)(m) and s 3.3.4 Element 1.3, Table 3.3.4.1, specific outcome SO7 and land use strategy L7.  See also paragraphs [64] to [81] above.

[119] Planning Act 2016 s 61(2)(c).

[120] Cf. Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 413 [465].

[121]  See, for example, Exhibit 10.01 pp 24 and 33.

[122]  Exhibit 10.01 p 196.

[123]  Exhibit 4.03 p 13 [26].

[124]  [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

[125]  [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[126] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

[127] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [22].

[128]  Written Submissions on behalf of the Appellant p 2 [4].  The contentions that the subject land is ideally suited for residential development, would support “missing middle” housing and would provide diversity of housing choice are addressed as part of the need for other residential components.  The other two matters have already been addressed in paragraphs [199] to [219] below.

[129]  Exhibit 4.01 p 8 [33].

[130]  Exhibit 4.01 p 9 [35]-[36].

[131]  Exhibit 4.01 p 9 [39].

[132]  Exhibit 4.01 p 9 [37] and [38].

[133]  Exhibit 4.01 p 10 [40].

[134]  Exhibit 4.01 p 10 [42].

[135]  Exhibit 4.01 p 7 [27]-[28] and p 10 [41].

[136]  Exhibit 4.01 p 10 [43].

[137]  Exhibit 3.04 p 85 [213].

[138]  Exhibit 4.01 p 7 [32].

[139] Self Storage Helensvale Holdings Pty Ltd v Council of the City of Gold Coast [2021] QPEC 29, [246]-[247].

[140]  Exhibit 4.01 p 13 [48].

[141]  Exhibit 3.04 pp 85-9.

[142]  Exhibit 3.04 p 86 [216].

[143]  Exhibit 3.04 p 86 [217].

[144]  Exhibit 3.04 p 87 [221]-[224].

[145]  Exhibit 3.04 p 86 [215].

[146]  Exhibit 3.04 p 88 [229]-[230].

[147]  Exhibit 4.08 p 10 [4.3]-[4.6].

[148]  Applying a penetration rate of 10 per cent with an occupancy rate of 1.3 persons to the projected population of those over age 65 in 2025 of 23,022 indicates a demand for 1,770 independent living units in 2025 as compared to a supply of 1,388.  If a penetration rate of 8 per cent is adopted, the indicative demand in 2025 is 1,416 independent living units.

[149]  Exhibit 8.01 pp 141-50.

[150]  Exhibit 8.02 pp 82-3.

[151]  Exhibit 8.02 pp 178-202.

[152]  Exhibit 3.04 p 89 [234]. 

[153]  Exhibit 4.11 p 11 [48] and p 14 [59].

[154]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 49-51. 

[155]  Exhibit 3.04 pp 54-5 [126]-[134].

[156]  Exhibit 3.04 p 55 [134].

[157]  Exhibit 3.04 p 54 [129].

[158]  Exhibit 3.04 p 54 [129].

[159]  Exhibit 3.04 p 94 [253]-[254].

[160]  Exhibit 3.04 p 94 [252].

[161]  Exhibit 3.04 pp 81-2 [202]-[203].

[162]  Exhibit 3.04 p 94 [253].

[163]  Exhibit 3.04 p 81 [199].

[164]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 77-8. 

[165]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 78. 

[166]  Exhibit 3.04 p 82 [205].

[167]  Exhibit 3.04 p 94 [255].

[168]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 67. 

[169]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 68. 

[170]  Exhibit 3.04 p 82 [207].

[171]  Exhibit 3.04 p 95 [259].

[172]  Exhibit 3.04 p 95 [260].

[173] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 419 [28].

[174] Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13, [88]-[91].

[175]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 9 September 2021) 42.

[176]  Exhibit 3.07 p 7.

[177]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 9 September 2021) 12.

[178]  Exhibit 4.05, p 5 [37].

[179]  See, for example, City Plan s 3.4.1(1)(i) and 3.7.1(1)(g).

[180]  Written Submissions on behalf of the Appellant, p 3 [6].

[181]  Exhibit 3.04 pp 16-37.

[182]  City Plan s 3.3.1(1)(m).

[183]  City Plan ss 3.3.4 Element 1.3, Table 3.3.4.1, specific outcome SO7 and land use strategy L7; 6.2.5.1(2), (3)(a) and (d).

[184]  These are either self assessable or code assessable.

[185]  City Plan s 6.2.5.1(3)(h).

[186] Planning Act 2016 s 8.

[187]  Exhibit 10.02 p 2.

[188]  Exhibit 10.02 p 4.

[189]  See Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 38-9.

[190]  Exhibit 10.02 p 19.

[191]  Exhibit 10.07 p 8 - City Plan version 22 s 9.3.12.3 Table 9.3.12.3.A.

[192]  Exhibit 3.04 p 52 [123].

[193]  Exhibit 4.08 p 4 [2.3].

[194]  City Plan defines sensitive uses.  They include residential uses.

[195]  Exhibit 4.08 p 5 [2.8].

[196]  In examination-in-chief, Mr Duane acknowledged that based on historical rates of growth in industry, there may only be 10 to 12 years supply – see Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 34.

[197]  Exhibit 4.08 p 5 [2.8].

[198]  Exhibit 8.01 p 302.

[199]  Exhibit 3.07 p 10 [29].

[200]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 44-6.

[201]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 38.

[202]  Exhibit 4.08 p 5 [2.8].

[203]  Exhibit 3.04 p 34 [72]. 

[204]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 38 and 40.

[205]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 39.

[206]  Exhibit 3.04 pp 38-9 [82] and [85].

[207]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 41-2.

[208]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 39-42.

[209]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 48.

[210] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 808 [60].

[211] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, 809 [63] citing Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, 102.

[212] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [178]-[179] citing Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003.

[213] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [178]-[179] citing Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003.

[214]  City Plan s 3.2.1.

[215]  For more detail, see paragraphs [92] to [109] above.

[216]  City Plan ss 3.2.1, 3.3.1(1)(g), (m), (n), (p), (q), 3.3.3 Element 1.2 Table 3.3.3.31 specific outcome SO3 and land use strategy L3, and 3.3.4 Element 1.3, Table 3.3.4.1, specific outcome SO7 and land use strategy L7.

[217]  City Plan s 3.3.4 Element 1.3, Table 3.3.4.1, specific outcome SO7. 

[218]  See paragraph [216] above.

[219]  Exhibit 12.02.

[220]  The evidence does not support this contention.

[221]  The evidence does not support this contention.

[222]  The evidence does not support that design variety is likely.

[223]  See paragraphs [173] to [175] above.

[224]  See paragraphs [127] to [169] above.

[225]  See paragraphs [199] to [219] above.

[226]  See paragraph [166] above.

[227]  See paragraphs [176] to [198] above.

[228]  Southway Services has not directed my attention to the evidence it relies on to support this contention.  I am not satisfied that it is established on the evidence.

[229]  See paragraphs [176] to [198] above.

[230]  See paragraphs [176] to [198] above.

[231]  See paragraph [197] above.

[232]  See paragraphs [120] to [126] above.

[233]  See paragraphs [22] to [59] and [187] to [198] above and paragraphs [243], [250] and [251] below.

[234]  I am not satisfied that such an outcome is likely.

[235] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20]; Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [24].

[236]  Exhibit 4.01 p 13 [51].

[237]  Exhibit 4.01 pp 13-4 [52(a)].

[238]  Exhibit 4.01 pp 13-4 [52(b)].

[239]  Exhibit 4.01 p 14 [52(c)].

[240]  Exhibit 3.04 p 88 [231]. 

[241]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 81.

[242]  This is further explained in her Second Individual Statement of Evidence, Exhibit 4.06. 

[243]  Submissions on behalf of the Respondent p 45 [164]-[165].

[244]  [2010] QPEC 51; [2010] QPELR 750, 775 [75].

[245]  [1996] QPELR 249.

[246] Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; [2009] QPELR 435, 453 [131].

[247]  Exhibit 4.01 pp 4-5. 

[248]  My emphasis.

[249]  See paragraphs [32] to [48] above.

[250]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 2-4.

[251]  See paragraph [166] above.  The benefit of intergenerational interaction between students and older Australians was a matter that Ms Wells placed considerable emphasis on in her oral testimony.

[252]  Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 22-4.

[253]  See, for example, City Plan ss 6.2.5.1(3)(c), (g), (h), and City Plan (version 22) ss 9.3.12.2 2.a, d and e.

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Editorial Notes

  • Published Case Name:

    Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors

  • Shortened Case Name:

    Southway Services No. 2 Pty Ltd v Brisbane City Council

  • MNC:

    [2022] QPEC 8

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    15 Mar 2022

Appeal Status

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