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G R Construction & Development Pty Ltd v Brisbane City Council[2022] QPEC 9

G R Construction & Development Pty Ltd v Brisbane City Council[2022] QPEC 9

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 9

PARTIES:

G R CONSTRUCTION & DEVELOPMENT PTY LTD

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

3900/2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13, 14, 16 September and 27 October 2021 and further written submissions received on 2 and 9 February 2022

JUDGE:

Kefford DCJ

ORDER:

I order:

1. The appeal is allowed.

2. The decision of Brisbane City Council notified by the decision notice dated 3 October 2019 is set aside.

3. The development application is remitted to Brisbane City Council.

4. Subject to further order of the Court, by 29 April 2022, Brisbane City Council is to give a decision notice approving the proposed development subject to lawful development conditions

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – where the Appellant seeks a development in a Rural residential zone – where the Appellant seeks to reconfigure a lot for 12 residential lots, a new road and a balance lot – whether the development is an inappropriate land use – whether the development unacceptably impacts the character and visual amenity of the area – whether the development impacts existing and future industrial uses – whether the development will enjoy appropriate residential amenity despite acoustic impact by industrial development – whether approval is an inappropriate ad hoc approach to planning – whether an approval is an appropriate exercise of the planning discretion

LEGISLATION:

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

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

Planning Regulation 2017 (Qld), s 31, sch 24

CASES:

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

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

Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 54; [2018] QPELR 265, approved

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

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

Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council [1990] QPLR 209, distinguished

Glenella Estates Pty Ltd v Mackay Regional Council & Ors [2010] QPEC 132; (2010) 180 LGERA 226, 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

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

Magree & Ors v Landsborough Shire Council & Anor [1987] QPLR 149, approved

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

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

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, applied

COUNSEL:

S Holt QC and D Whitehouse for the Appellant

A Skoien and R Yuen for the Respondent

SOLICITORS:

Anderssen Lawyers Pty Ltd for the Appellant

City Legal, Brisbane City Council for the Respondent

TABLE OF CONTENTS

Introduction4

What is the nature of the proposed development?6

What are the issues to be determined?7

What is the relevant framework for the decision?7

Will the proposed development involve an inappropriate use on the subject land?9

Will the proposed development have an unacceptable impact on the character and visual

amenity of the area?12

What do the assessment benchmarks relied on by the Council require?12

Will the proposed development deliver an amenity outcome that is anticipated by City Plan?14

Will the proposed development preserve the scenic amenity and character of the subject land?14

What are the attributes of the subject land?14

What impact will the proposed development have on the scenic amenity and character

of the subject land?15

Will the proposed development provide a high level of residential amenity?16

Will the proposed development maintain the character of the local area?17

What are the features that inform the character of the local area?17

What contribution does the subject land make to the character of the local area?18

What impact will the proposed development have on the scenic amenity and character

of the subject land?19

Will the proposed development acceptably address potential acoustic amenity impacts and protect

existing and future lawful industrial uses in the vicinity?24

Does the proposed development accord with the pattern of zones, neighbourhood plans and overlays?26

Will future residents of the proposed development enjoy appropriate acoustic amenity?28

Will the proposed development adequately protect industrial development from encroachment?29

Conclusion regarding acoustic amenity and reverse amenity issues35

Would a decision to approve the proposed development result in an inappropriatead hoc approach to

land use planning?36

Are there relevant matters that tell against approval?39

Are there relevant matters that support approval?40

Will the proposed development cut across the intent of City Plan?40

Is there a need for the proposed development?43

Will the proposed development be compatible with the amenity and character expectations

for the locality?45

Will the proposed development cause or be subject to any unacceptable flooding or stormwater

impacts, traffic impacts or air quality impacts?46

Should the development application be approved in the exercise of the planning discretion?47

Conclusion50

Introduction

  1. [1]
    Approximately 10 kilometres from the Brisbane central business district, in the Brisbane local government area, lies the suburb of Hemmant.  This appeal relates to a proposal to develop land that is located at 56 Oberon Esplanade, Hemmant (“the subject land”). 
  2. [2]
    Development in the area is principally governed by Brisbane City Plan 2014 (“City Plan”).  The Hemmant-Lytton neighbourhood plan code in City Plan provides finer grained planning at a local level for the Hemmant-Lytton neighbourhood plan area.
  3. [3]
    The area is severed by the Port of Brisbane Motorway and the Cleveland railway line.  The overall outcomes for the Hemmant-Lytton neighbourhood plan area reflect the distinctive character of the area’s two parts. 
  4. [4]
    Land to the north of the Cleveland railway line is in the Industry zone.  It is planned to accommodate regionally significant industry and supporting business activities.[1]  The land located south of the Cleveland railway line exhibits a mixed character.  It comprises a combination of rural and low-density residential areas interspersed with limited industrial areas.[2] 
  5. [5]
    Development opportunities in the southern area are constrained by attributes of the area, including areas of ecological significance and floodable land.  Nevertheless, new residential development is anticipated in the area.  City Plan encourages it to occur south of the railway line to achieve separation of residential communities from industrial areas located north of the railway line.  The separation has a dual purpose: to ensure that community health and wellbeing is protected; and to ensure that industry can continue to operate and grow.[3]
  6. [6]
    Although residential growth is anticipated south of the Cleveland railway line, urban residential development in the neighbourhood plan area is limited to land within the Low density residential zone and the Emerging community zone.  These areas are predominantly within the suburbs of Hemmant and Tingalpa.  City Plan identifies that the purpose for limiting residential growth to those areas is to clearly define future residential areas, protect areas of ecological significance, avoid land subject to environmental constraint, and provide for the efficient provision of infrastructure.[4] 
  7. [7]
    The neighbourhood planning also seeks to maintain the very low density rural and landscape character of land in the Rural zone, Environmental management zone and Rural residential zones.  For that reason, land in those zones is said to be unsuitable for urban development.[5]
  8. [8]
    The subject land is in Hemmant-Tingalpa neighbourhood plan area and the Rural residential zone.
  9. [9]
    Considering the zoning of the land alone, it is perhaps unsurprising that Brisbane City Council (“the Council”) refused a development application made by the Appellant, G R Construction and Development Pty Ltd (“G R Construction”) seeking a development permit to reconfigure the subject land into 24 lots, a drainage reserve, an access easement, and road reserve, as well as a preliminary approval for operational works in relation to proposed filling and excavation.
  10. [10]
    Since the commencement of this appeal against the decision of the Council, G R Construction has changed its development application to now only seek 12 residential lots.  Despite that, the Council maintains its opposition to the proposed development.  It contends that the proposed development would impermissibly facilitate urban development on land in the Rural residential zone, contrary to the land use planning reflected in City Plan.  It also says the proposed development would negatively change the character of the area; would pose a significant adverse visual amenity impact on the adjoining residents; and would unreasonably restrict the operation of longstanding existing industry activities that are located proximate to the subject land. 
  11. [11]
    G R Construction accepts that the proposed development does not comply with several assessment benchmarks in City Plan.  It says the non-compliances stem from the same substantive underlying fact, namely that the proposed development would facilitate low density residential development in the Rural residential zone.  Nevertheless, the Appellant says that the proposed development warrants approval.
  12. [12]
    The zoning of the land is a strong indication that the proposed development does not accord with the intended planning outcome.  Despite that, it is necessary to undertake an impact assessment of the proposed development to make the broad evaluative judgment that is called for under the Planning Act 2016 (Qld) about the ultimate acceptability of the proposed development.[6]
  13. [13]
    The appeal is a hearing anew.[7]  It is for G R Construction to establish that the appeal should be allowed.[8] 

What is the nature of the proposed development?

  1. [14]
    The development application was lodged with the Council on 31 May 2019 and was deemed to be properly made on 5 June 2019.  It sought a development permit for the reconfiguration of one lot into 24 lots, a drainage reserve, an access easement, and a road reserve.  The development was proposed to be undertaken in two stages.  The application also sought a preliminary approval for operational works in the form of filling and excavation.
  2. [15]
    Since the Council refused the development application, this Court has authorised G R Construction to make a minor change to its development application on two occasions.[9]
  3. [16]
    G R Construction now seeks a development permit for reconfiguration of a lot to facilitate the creation of:
    1. (a)
      12 residential lots ranging in size between 403 square metres and 442 square metres;
    2. (b)
      a new road connecting to the end of Oberon Esplanade that has a north-south orientation for about 30 metres before continuing in an east-west direction for about 170 metres and terminating in a two-point turnaround area.  The new road is located to the east of proposed lots 1 and 2 (at which location it has a width of 14 metres) and on the southern side of proposed residential lots 3 to 12 (at which location it has a width of 16 metres);
    3. (c)
      a balance lot of 15,115 square metres.  The balance lot is to include an area of 1,845 square metres that is to be subject to a vegetation protection covenant.  The covenant area is located along part of the southern boundary of the subject land; and
    4. (d)
      a drainage reserve of 2,726 square metres at the western end of the subject land, adjoining the existing park that lies between the subject land and Bulimba Creek to the west.
  4. [17]
    Proposed lots 1 and 2 are about 24 metres long and 17 metres wide.  The balance of the proposed residential lots are 34 metres long and 12 metres wide (other than proposed lot 6 that has a width of 13 metres).
  5. [18]
    Vehicle access is proposed from Oberon Esplanade.  The proposed residential lots would have a setback of approximately 50 metres from the industrial zoned land to the south.  

What are the issues to be determined?

  1. [19]
    In accordance with the usual practice of the Court,[10] an agreed list of issues was tendered by the parties identifying the focus of the dispute between the parties.  It was amended at the end of the hearing to identify those assessment benchmarks with which G R Construction concedes that the proposed development is inconsistent.[11]  Originally, the Council raised issues associated with biodiversity, ecology, flooding, earthworks, stormwater management, traffic, and the scope of any environmental covenant and tree retention.  The Council accepts that these are no longer matters that warrant refusal.  Rather, they can be addressed by the imposition of conditions.  Accordingly, the document identifies only those issues that genuinely require adjudication.  For that, I am grateful. 
  2. [20]
    The issues that remain to be determined can be summarised as follows: 
  1. Will the proposed development involve an inappropriate land use on the subject land?
  2. Will the proposed development have an unacceptable impact on the character and visual amenity of the area?
  3. Will the proposed development acceptably address potential acoustic amenity impacts and protect existing and future lawful industrial uses in the vicinity?
  4. Would a decision to approve the proposed development result in an inappropriate ad hoc approach to land use planning?
  5. Are there relevant matters that tell against approval?
  6. Are there relevant matters that support approval?
  7. Should the development application be approved in the exercise of the planning discretion?
  1. [21]
    Each of the above questions are to be determined by reference to the applicable statutory assessment and decision-making framework.

What is the relevant framework for the decision?

  1. [22]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies. 
  2. [23]
    There is a broad discretion in determining these appeals.[12]  As the development application required an impact assessment, the exercise of the discretion must be based on an assessment that:[13]
    1. (a)
      must be carried out against the assessment benchmarks[14] and 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;[15] and
    2. (b)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
  3. [24]
    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 that the Court considers appropriate.[16]
  4. [25]
    The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[17] Abeleda & Anor v Brisbane City Council & Anor,[18] Wilhelm v Logan City Council & Ors[19] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[20]  Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors[21] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[22]
  5. [26]
    As is apparent from the Court of Appeal decisions, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[23]  In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.[24]  Nevertheless, the Planning Act 2016 affords flexibility to an assessment manager, or the Court on appeal, in deciding an impact assessable development application, to permit approval of a development application in the face of non-compliance with a planning scheme.[25]  Inherent in the exercise of the discretion to approve a development application in the face of non-compliance is a balancing exercise that is invariably complicated and multi-faceted.  The exercise is to be based on the assessment carried out under s 45 of the Planning Act 2016.  The way the balance is struck will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, with an assessment benchmark.[26]
  6. [27]
    The assessment benchmarks in City Plan version 15[27] that are put in issue by the parties in this appeal are:
    1. (a)
      in the Strategic framework:
      1. Theme 1, Element 1.3 – specific outcome SO7 and land use strategy L7;
      2. Theme 3, Element 3.2 – specific outcomes SO2 and SO3 and land use strategies L2.1, L2.3, L3.2 and L3.4;
    2. (b)
      in the Rural residential zone code – the overall outcomes in ss 6.2.6.6 2.b., d., and h.;
    3. (c)
      in the Hemmant-Lytton neighbourhood plan code – the overall outcomes in ss 7.2.8.2.2 3.c., d., e., 4.a., b., and c.; and
    4. (d)
      in the Subdivision code – the overall outcomes in ss 9.4.10.2 2.a., b., c., and j, and performance outcomes PO1 and PO25.
  7. [28]
    I will consider the assessment benchmarks in the context of the disputed issues.

Will the proposed development involve an inappropriate use on the subject land?

  1. [29]
    The development application seeks a development permit for reconfiguration of the subject land into 12 lots.  No approval is sought to make a material change of use of the subject land.  That said, it is common ground that approval of the development application would facilitate use of the subject land for low density residential development. 
  2. [30]
    The Council contends that the land use outcome is contrary to the planning outcomes in:
    1. (a)
      Theme 1, Element 1.3, specific outcome SO7 and land use strategy L7 of the Strategic framework;
    2. (b)
      the overall outcomes in ss 6.2.6.6 2.b. and d. of the Rural residential zone code;
    3. (c)
      the overall outcomes in ss 7.2.8.2.2 3.d. and e., and 4.a. of the Hemmant-Lytton neighbourhood plan code; and
    4. (d)
      the overall outcomes in ss 9.4.10.2 2.b. and c., and performance outcomes PO1 of the Subdivision code.
  3. [31]
    Theme 1, Element 1.3, specific outcome SO7 and land use strategy L7 of the Strategic framework relate to the preservation of industrial uses.  The Council’s contentions with respect to those provisions relate to the alleged reverse amenity impacts.  I address the allegation of non-compliance with these assessment benchmarks in that context in paragraphs [127] to [156] below.
  4. [32]
    When assessing the acceptability of the proposed development, 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.[28] 
  5. [33]
    The purpose of the Rural residential zone is to provide for residential uses and activities on large lots, including lots for which the local government has not provided infrastructure and services.  This purpose is to be achieved through the overall outcomes, which include:

“b. Development provides for dwelling houses on existing lots generally in the size range between 1ha and 5ha.

d. Development preserves the environmental, scenic amenity and topographical features of the land by integrating an appropriate scale of residential activities amongst these features.”

  1. [34]
    The planned land use outcomes for the area are also the subject of finer grained planning in the Hemmant-Lytton neighbourhood plan code.  The overall outcomes in s 7.2.8.2.2 of that code provides guidance for the neighbourhood plan area generally and for the Hemmant and Tingalpa Road precinct – NPP-001.  The overall outcomes include:

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

d. Urban residential development in the neighbourhood plan area is limited to land within the Low density residential zone and Emerging community zone, predominantly within Hemmant and Tingalpa, so as to clearly define future residential areas, protect areas of ecological significance, avoid land subject to environmental constraint and provide for the efficient provision of infrastructure.

e. The very low density rural and landscape character of land included in the Rural, Environmental management and Rural residential zoned land (sic) is maintained. These zones are unsuitable for urban development.

4. Hemmant and Tingalpa Road precinct (Hemmant-Lytton neighbourhood plan/NPP-001) overall outcomes are:

a. New urban development is contained within the Emerging community zone.”

  1. [35]
    The Subdivision code regulates development for reconfiguring a lot.[29]  The Council alleges non-compliance with the overall outcomes in s 9.4.10.2 2.b. and c., which state:

“b. Development for reconfiguring a lot creates a lot of an appropriate size, dimensions and arrangement consistent with the outcomes of the zones, zone precincts, neighbourhood plans and overlays which apply to the site.

c. Development for reconfiguring a lot provides lots and an arrangement of lots for lawful uses consistent with the uses, zones, zone precincts, neighbourhood plans and overlays which apply to the site and that meet the provisions of the planning scheme and responds to the patterns of development in the locality.”

  1. [36]
    The Council also alleges non-compliance with performance outcome PO1 of the Subdivision code.  It states:

“Development creates a lot with dimensions which enable lawful uses appropriate to the intended use and consistent with zones, zone precincts, neighbourhood plans and overlays which apply to the site and are intended for the locality under the planning scheme.”

  1. [37]
    G R Construction concedes that the proposed development is not compliant with the overall outcome in s 6.2.6.6 2.b. of the Rural residential zone code[30] and the overall outcomes in ss 7.2.8.2.2 3.d. and e., and 4.a.[31] of the Hemmant-Lytton neighbourhood plan code.[32]  It says that each non-compliance stems from the same substantive underlying fact, namely that the proposed development is for low density residential development in the Rural residential zone.  The concession is appropriate.  The proposed development does not comply with the assessment benchmarks because the assessment benchmarks assume that land in the Rural residential zone will be used for rural residential purposes.
  2. [38]
    The overall outcomes in s 9.4.10.2 2.b. and c. and performance outcome PO1 of the Subdivision code implement the policy outlined in the zones and neighbourhood plans.[33]  As such, it follows that from G R Construction’s concessions that there is also non-compliance with these provisions of City Plan.
  3. [39]
    Section 6.2.6.6 2.d. of the Rural residential zone code seeks to preserve the environmental, scenic amenity and topographical features of the land.  The means specified to achieve that goal is by integrating an appropriate scale of residential activities amongst the features.  The proposed development does not accord with the scale encouraged in City Plan.  As such, the proposed development does not achieve full compliance with the provision.  However, the parties disagree about whether the proposed development otherwise achieves the goal to preserve the scenic amenity of the subject land.  I address that issue in paragraphs [53] to [65] below.
  4. [40]
    For the reasons provided above, I am satisfied that the proposed reconfiguration of the subject land would facilitate a form of land use on the subject land that is contrary to the land use intention indicated by City Plan.  

Will the proposed development have an unacceptable impact on the character and visual amenity of the area?

  1. [41]
    The Council contends that approval of the development application would facilitate residential development at a density that would result in unacceptable visual amenity impacts on:
    1. (a)
      the residents of the houses along Bogong Street that have a direct interface with the proposed lots;
    2. (b)
      the people travelling along Bogong Street; and
    3. (c)
      the users of the park to the west of the subject land.[34]
  2. [42]
    In those circumstances, the Council alleges that the proposed development does not comply with:
    1. (a)
      Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 of the Strategic framework;
    2. (b)
      the overall outcomes in ss 6.2.6.6 2.d. and h. of the Rural residential zone code; and
    3. (c)
      the overall outcomes in ss 7.2.8.2.2 3.c. and e., and 4.b. of the Hemmant-Lytton neighbourhood plan code; and
    4. (d)
      the overall outcomes in ss 9.4.10.2 2.b. and j., and performance outcome PO25 of the Subdivision code.[35]

What do the assessment benchmarks relied on by the Council require?

  1. [43]
    Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 of the Strategic framework states:

“3.5.3  Element 3.2 – Brisbane’s environmental quality and sustainable design

Table 3.5.3.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

Health and amenity

SO2

Brisbane provides an amenity which is appropriate to the uses and development intensity planned for the different parts of the city.

L2.1

Development accords with the pattern of zones, neighbourhood plans and overlays which provide the basis for managing health and amenity impacts and interfaces between land use activities.

  1. [44]
    This specific outcome and land use strategy call on the provisions of the zone code, the neighbourhood plan, and overlays to manage amenity impacts.
  2. [45]
    The overall outcomes in ss 6.2.6.6 2.d. and h. of the Rural residential zone code state:

“d. Development preserves the environmental, scenic amenity and topographical features of the land by integrating an appropriate scale of residential activities amongst these features.

h. Development provides a high level of residential amenity.”

  1. [46]
    The Council contends that the landscape character intent planned for the Hemmant-Lytton neighbourhood plan area in general is identified in ss 7.2.8.2.2 3.c. and e. of the Hemmant-Lytton neighbourhood plan code.  The overall outcome in s 7.2.8.2.2 4.b. provides further guidance in relation to the Hemmant and Tingalpa Road precinct of the neighbourhood plan area. 
  2. [47]
    The overall outcomes in the Hemmant-Lytton neighbourhood plan code state:

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

c. Development south of the Cleveland railway line maintains the rural and low density residential character of the area and responds to local values and circumstances, including areas of ecological significance and floodable land.  New residential development occurring south of the railway line ensures separation of residential communities from industrial areas located north of the railway line so that community health and wellbeing is protected and industry can continue to operate and grow.

e. The very low density rural and landscape character of land included in the Rural, Environmental management and Rural residential zoned land (sic) is maintained. These zones are unsuitable for urban development.

  1. Hemmant and Tingalpa Road precinct (Hemmant-Lytton neighbourhood plan/NPP-001) overall outcomes are:

b. Development in the Rural residential zone maintains the rural residential character of the locality and does not place additional demand on the stormwater infrastructure network.”

  1. [48]
    The Council says the planning intentions with respect to character and visual amenity impacts are also informed by the overall outcomes in ss 9.4.10.2 2.b. and j., and performance outcome PO25 of the Subdivision code.  The overall outcomes state:

“b. Development for reconfiguring a lot creates a lot of an appropriate size, dimensions and arrangement consistent with the outcomes of the zones, zone precincts, neighbourhood plans and overlays which apply to the site.

j. Development for reconfiguring a lot ensures safety and amenity of the intended uses and does not compromise the safe and efficient operation of existing and future lawful uses and activities in the vicinity of the site.”

  1. [49]
    Performance outcome PO25 of the Subdivision code states:

“Development provides a range of lot sizes and types mixed in one location to support increased housing choice appropriate for a range of household types and is consistent with the proposed use of the site and the surrounding character or provides transitions from that surrounding lot character.”

  1. [50]
    These provisions raise four factual considerations.
  1. Will the proposed development deliver an amenity outcome that is anticipated by City Plan?
  2. Will the proposed development preserve the scenic amenity and character of the subject land?
  3. Will the proposed development provide a high level of residential amenity?
  4. Will the proposed development maintain the character of the local area?

Will the proposed development deliver an amenity outcome that is anticipated by City Plan?

  1. [51]
    As I have already identified in paragraphs [29] to [40] above, G R Construction seeks approval to create lots of a size that do not accord with the inclusion of the subject land in the Rural residential zone, or the intentions for land so zoned identified in the Hemmant-Lytton neighbourhood plan code.  As such, the proposed development will not provide an amenity that accords with the planned uses and development intensity. 
  2. [52]
    In those circumstances, the proposed development is discordant with the outcomes sought in Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 of the Strategic framework, and the overall outcome in s 9.4.10.2 2.b. of the Subdivision code.

Will the proposed development preserve the scenic amenity and character of the subject land?

  1. [53]
    The Council contends that the proposed development does not comply with the overall outcome in s 6.2.6.6 2.d. of the Rural residential zone code and s 7.2.8.2.2 3.e. of the Hemmant-Lytton neighbourhood plan code as it will remove a 50 metre wide band of the rural residential character on the subject land.  It says this will negatively change the scenic amenity of the area and, as such, will not preserve the scenic amenity and topographical features of the subject land.
  2. [54]
    To assist me with my assessment of the visual and character impacts of the proposed development, I was presented with evidence from Dr Alan Chenoweth and Dr Nicholas McGowan, the visual amenity experts retained by G R Construction and the Council respectively.

What are the attributes of the subject land?

  1. [55]
    The subject land is a single lot that is effectively rectangular in shape and has an area of 26,320 square metres.  It contains a dwelling house close to its eastern boundary. 
  2. [56]
    Topographically, the subject land climbs gradually from the recreation reserve adjacent Bulimba Creek at its western end to a high point where the existing house is located.  The length of the subject land, measured from its eastern boundary westward to Bulimba Creek, is approximately 300 metres.  The width is approximately 100 metres.[36]
  3. [57]
    The experts opine that the subject land has a rural residential character that is defined by native trees, shrubs, and regrowth vegetation, between which is an area of low grass that appears to be grazed.  The vegetation includes young and mature trees.[37]  It occurs in patches, bands, and as scattered individual trees.[38]  Overall, tree cover on the subject land is sporadic, but there is a comparatively denser coverage along the southern boundary.[39] 
  4. [58]
    The experts’ description of the topographic and scenic characteristics of the subject land accords with the photographs and aerial photographs of the subject land[40] and the survey information about the subject land presented on the plans.[41]  It is also consistent with the present use of the subject land for passive rural pursuits.  I accept the experts’ evidence.

What impact will the proposed development have on the scenic amenity and character of the subject land?

  1. [59]
    As I have noted in paragraph [16] above, the proposed development involves the creation of an extension of Oberon Esplanade and 12 new residential lots along part of the northern boundary of the subject land.  The new residential lots will immediately adjoin seven lots that front Bogong Street and one lot that fronts Oberon Esplanade.  The nine other lots that adjoin the northern boundary of the subject land will abut that part of the subject land that is to be retained as a balance rural residential lot.[42] 
  2. [60]
    The balance lot will contain:
    1. (a)
      the existing ridgeline house and 22 ridgelines trees[43] in the immediate vicinity of the existing house;
    2. (b)
      one large tree about 20 metres from the northern boundary and proximate the eastern boundary of proposed lot 12;[44]
    3. (c)
      an area of 1,845 square metres that will be the subject of a vegetation protection covenant.  The proposed covenant area contains the dense pocket of vegetation along the southern boundary; and
    4. (d)
      62 additional trees that are scattered throughout the southern half of the subject land.[45] 
  3. [61]
    An acoustic barrier is proposed along the southern boundary of the subject land.  It will range between two and four metres in height.[46] 
  4. [62]
    The earthworks associated with the proposed reconfiguration will result in the loss of 32 trees in the north-west quadrant of the subject land.[47]  Some vegetation will also be lost from the proposed covenant area during the construction of the barrier.  G R Construction proposes to offset the vegetation losses by planting additional trees and shrubs in the covenant area and in the drainage reserve.  This can be conditioned to ensure that the plantings are sufficient to screen the barrier from the view of future residents of the 12 new lots.[48]  In addition, the visual amenity experts recommend that any approval include conditions that require the planting of native street trees along the southern side of the proposed roadway.  They recommend that some of the plantings include trees that can grow to at least 15 metres in height so that their canopies will be visible from Bogong Street.[49] 
  5. [63]
    The development of almost half of the subject land for low density residential development is contrary to the overall outcome in s 6.2.6.6 2.d. of the Rural residential zone code.  The scale of residential activities is far greater than what would be reasonably anticipated to meaningfully preserve the scenic amenity of the subject land.
  6. [64]
    The proposed development is also contrary to the overall outcome in s 7.2.8.2.2 3.e. of the Hemmant-Lytton neighbourhood plan code.  That provision focuses on the very low density rural and landscape character of the land in the Rural, Environmental management and Rural residential zone.  That requirement is separate to, and distinct from, the overall outcomes in ss 7.2.8.2.2 3.c. and 4.b, which focus on maintenance of the character of the local area.[50] 
  7. [65]
    These findings also support my earlier finding that the proposed development is discordant with the overall outcome in s 9.4.10.2 2.b. of the Subdivision code.

Will the proposed development provide a high level of residential amenity?

  1. [66]
    Dr Chenoweth and Dr McGowan agree that, having regard to the suggested conditions regarding planting, residences on the proposed lots can be adequately visually buffered from the Fleming Road industrial estate.[51]  The evidence of Dr Chenoweth and Dr McGowan persuades me that, with the imposition of appropriate conditions, future residents of the proposed 12 residential allotments will enjoy visual amenity of a high standard.[52] 
  2. [67]
    As such, I am satisfied that the proposed development can be conditioned to comply with the overall outcomes in s 6.2.6.6 2.h. of the Rural residential zone code and s 9.4.10.2 2.j. of the Subdivision code, insofar as those provisions relate to the visual amenity of the future residents.

Will the proposed development maintain the character of the local area?

  1. [68]
    The visual amenity and character outcomes sought in ss 7.2.8.2.2 3.c. and 4.b. of the Hemmant-Lytton neighbourhood plan code and performance outcome PO25 of the Subdivision code focus on the character of the Hemmant-Lytton neighbourhood plan area and the Hemmant and Tingalpa Road precinct locality.

What are the features that inform the character of the local area?

  1. [69]
    Collectively, the subject land and the three lots east of it form a narrow band of rural residential zoned land.  The band is wedged between the developed residential estate to the north and the historical industrial estate to the south.[53] 
  2. [70]
    Each of the Rural residential zoned lots to the east of the subject land are improved by a dwelling and an outbuilding.[54]  The rural-residential land use pattern continues south and east of those three lots, lining both sides of Hemmant-Tingalpa Road south of its intersection with Pinnibar Street.  That pattern also extends to the east, along most of the northern side of Fleming Road, and to the east and west of the intersection of Fleming Road and Hemmant-Tingalpa Road.[55]
  3. [71]
    There is a developed residential estate to the north.  It is comprised of individual houses on low density lots.  Within that estate, 17 of the lots immediately adjoin the northern boundary of the subject land.[56]  They front Bogong Street and Oberon Esplanade.  They form part of the southern boundary of the existing residential estate.[57]
  4. [72]
    Access to the subject land is available from Oberon Esplanade.  Oberon Esplanade connects to Pinnibar Street, which is a collector street[58] that runs through the adjoining residential estate.  Pinnibar Street connects to Hemmant-Tingalpa Road, which is a principal road that runs from north to south through the middle of the suburb.[59]
  5. [73]
    A single large industrial parcel, with an area of 6.546 hectares, sits between the southern boundary of the subject land and the northern side of Fleming Road.  East of that industrial parcel are two smaller industrial lots, with areas of 3.63 hectares and 4,309 square metres.[60]  To the south of Fleming Road, there is a single lot of 1.019 hectares.  It is also developed for industrial uses.[61]  Collectively, the three lots to the north of Fleming Road and the single lot on the southern side of Fleming Road form an isolated pocket of industrial zoned land.  The land on the northern side of Fleming Road is otherwise in the Rural residential zone.  The land on the southern side is otherwise in the Emerging community zone.[62]  
  6. [74]
    To the west of the subject land is a park that adjoins Bulimba Creek.  It extends south to Fleming Road, past the subject land and the industrial area.
  7. [75]
    Dr Chenoweth and Dr McGowan agree that the overall impression of the character of the local area is that appreciated from Hemmant-Tingalpa Road and Fleming Road, being the main north-south and east west routes through the area.  The local area has a mixed character.  It includes pockets of residential development, such as that to the immediate north of the subject land, and the industrial estate in Fleming Road.[63] 
  8. [76]
    Nevertheless, the overall impression of the area is that of a generally rural-residential suburb with pockets of residential and industrial development.  This impression is informed by the visual dominance of large rural residential allotments, and low-key streets with an absence of concrete footpaths, to the east of Hemmant-Tingalpa Road.  A cemetery and patches of bushland are also dominant features.  The experts opine that the impression of a low-key dispersed large-lot suburb is enhanced by the winding and undulating alignment of Hemmant-Tingalpa Road and the absence of traffic lights.[64] 
  9. [77]
    The experts also agree that the area presents as an area in transition.[65]  Parts of the local area, mainly to the north of Macedon Street and to the south of Fleming Road, have been, and are in the process of being, developed for residential allotments.[66]
  10. [78]
    I accept the experts’ description of the character of the local area.  It accords with the photographs and aerial photographs of the area.[67] 

What contribution does the subject land make to the character of the local area?

  1. [79]
    As I have found in paragraph [57] above, the subject land has a rural residential character.  It forms part of a 100-metre-wide band of land of similar character that extends west from Hemmant-Tingalpa Road to the flood-prone lot that borders Bulimba Creek (Lot 900 on SP297317),[68] which is held by the Council on trust for park purposes.[69]  The band of rural residential zoned land forms a buffer between the Pinnibar Street residential estate to the north, which includes Oberon Esplanade and Bogong Street, and the Fleming Road industrial estate to the south.[70]
  1. [80]
    The visual amenity experts agree that the contribution that the subject land itself makes to the rural residential character of the local area is informed by the locations from which the subject land is visible.[71]  As is explained by Dr Chenoweth, properties such as the subject land contribute to the local area’s rural residential character only to the extent that their grassed open space and trees can be seen from external viewpoints.  Those viewpoints include main through-roads, such as Hemmant-Tingalpa Road and Fleming Road, public parks or recreational area, and existing residences.[72]
  1. [81]
    The existing residence at the eastern end of the subject land sits on a local ridge.[73]  The balance of the land falls away to the west, in the direction of Bulimba Creek.  Consequently, the local topography, and to a lesser extent vegetation, screens the subject land from the view of those travelling along Hemmant-Tingalpa Road.  The subject land is not visible from Bogong Street (or the balance of the residential estate to the north), Fleming Road, or the waterway of Bulimba Creek.[74]
  2. [82]
    The subject land is only visible from the end of Oberon Esplanade, the rear yards of the houses on Bogong Street that abut the subject land, and the adjoining flood-prone lot to the west that borders Bulimba Creek.[75] 
  3. [83]
    Dr Chenoweth opines that the subject land makes little contribution to the character of the Hemmant-Lytton neighbourhood plan area.  He describes it as “the mainly hidden western end of a narrow band of non-urban land west of Hemmant-Tingalpa Road”.  Dr Chenoweth says that the main contribution the subject land makes to the local character is that associated with the hilltop tree canopies that are visible from several local roads and viewpoints.[76]  He says the hilltop trees make a background contribution to the visual amenity and character of the local area.[77]
  4. [84]
    I accept the evidence of Dr Chenoweth.  It comfortably persuades me that the subject land, including its topographic and scenic attributes, make a very small contribution to the character of the local area, and then only to the background. 

What impact will the proposed development have on the scenic amenity and character of the subject land?

  1. [85]
    As I have noted in paragraph [16] above, the proposed development involves the creation of an extension of Oberon Esplanade and 12 new residential lots along part of the northern boundary of the subject land.  Outside of the subject land, there will be limited visibility of the residential development that would likely occur on the 12 new lots.  Dr Chenoweth and Dr McGowan agree that the visibility of such development will be like the visibility of the subject land itself.[78] 
  2. [86]
    That said, it is uncontroversial that approval of the proposed development will result in the loss of some trees, the tops of which are visible from Bogong Street and contribute to the scenic amenity of the area.[79]  It does not necessarily follow that the loss of some of the trees will result in a loss of the rural and low-density residential character of the area that the Hemmant-Lytton neighbourhood plan code seeks to maintain.[80] 
  3. [87]
    The impact of the loss of some of the vegetation on the subject land must be considered in context.  This is addressed by Dr Chenoweth and Dr McGowan. 
  4. [88]
    Dr Chenoweth opines that the proposed development will be consistent with the mixed character of the local area.  He says it will not have a detrimental impact on the extent to which the rural residential character of the subject land contributes to that mixed character.  This is because the houses will not be seen from Hemmant-Tingalpa Road and can be easily screened from view from Fleming Road, Oberon Esplanade and Bulimba Creek.  Dr Chenoweth says that the proposed development maintains the scenic amenity of the local area by locating a small pocket of 12 new residences in a topographically appropriate location, being that on the western side of a low hill where they are screened from Hemmant-Tingalpa Road.[81]  
  5. [89]
    Dr McGowan disagrees.  He opines that the proposed development would erode the character and amenity of the local area.  He says the impact will be dramatic.[82]  His opinions are premised on four matters.
  6. [90]
    First, in considering the character values of the subject land, Dr McGowan notes that the zoning map depicts the subject land to be part of a larger band of rural residential land extending from Bulimba Creek eastward along the northern side of Fleming Road.  His assessment is informed by the fact that this band of rural residential zoned land is the only land so designated in the Hemmant-Lytton neighbourhood plan area.  He says it is a discernible feature of the local landscaping in that it provides a contrast to patches of low-density residential land and industrial development.  In addition, Dr McGowan opines that this larger mapped area of rural residential land contributes a sense of openness to the local area that reflects an attractive semi-rural character.[83]  As I understand Dr McGowan’s evidence, he regards the mapping as an important factor in assessing the character of the local area.
  7. [91]
    It is difficult to accept that strong emphasis should be placed on the mapping when determining the existing character of the area.  Although the mapping might inform expectations about the planned character, the average person does not perceive the existing character by reference to colours on a map.  The character of a locality is the aggregate impression formed having regard to the individual features and traits of the development and the natural environment in the locality.[84]  Dr McGowan’s focus on this matter causes me concern about the reliability of his opinions.  His evidence on this matter does not assist me to move from the primary evidence of what is in the locality to a conclusion about the existing character of the locality and the impact of the proposed development on that character.  The mapping does not assist me to understand what the average person walking the street and looking about would perceive about the character of the locality.[85] 
  8. [92]
    Second, Dr McGowan opines that visually prominent trees spread across the subject land make an important contribution to the amenity and character of the area.  He says they reinforce the green-space values of the more substantial open space areas extending through the local area.  Dr McGowan supports this opinion by reference to photos taken from Bogong Street, which he says give an appreciation of how the openness of the subject land and the trees upon it contribute to an attractive backdrop to the residential development along Bogong Street.[86]  He says that although there is an opportunity for trees to be planted elsewhere on the subject land, such trees would be further from the Bogong Street interface.  He says this will make them less obvious and they will make less of a contribution to the amenity of the area then the existing trees.[87]  As such, Dr McGowan opines that the proposed development would replace the open outlook and the treed backdrop for people moving along Bogong Street.[88] 
  9. [93]
    In his individual report, Dr Chenoweth addressed Dr McGowan’s concerns about the impact on the character experienced in Bogong Street.  He accepts that there are several large trees on the subject land that are visible from Bogong Street and Oberon Esplanade.  They form an attractive visual backdrop to the houses in Bogong Street.  The proposed development will result in the loss of six visible trees.  They include two gum trees within five or six metres of the boundary fence, two within 20 metres and two within 25 to 30 metres.  The background views will still include the trees that are at the top of the hill proximate to the existing house on the subject land.[89]  Dr Chenoweth explains that while the six tall trees make some contribution to the amenity of the residents of, and motorists in, Bogong Street, their contribution is as a background element.  He opines that it is existing street trees in Bogong Street that make the main contribution to a pleasant visual amenity.  They are in the foreground and mid-ground views of residents and motorists daily. 
  10. [94]
    It is correct that the photos relied on by Dr McGowan show trees on the subject land providing an attractive backdrop to the residential development along Bogong Street.  I do not accept that they are representative of the experience of a person as they walk along Bogong Street.  The photos are taken in a manner that appears to deliberately avoid capturing the substantial street trees that are present in Bogong Street.  Those trees are evident in the aerial photographs.[90]  Further, while figure 8 in the Visual Amenity Joint Experts’ Report is of a different street in the same residential estate,[91] it assists in understanding Dr Chenoweth’s evidence about how the street trees dominate an individual’s impression of character of the area.  I prefer Dr Chenoweth’s evidence on this matter.
  11. [95]
    Third, Dr McGowan opines that the proposed development would impact on the amenity of the residents of those houses along Bogong Street that have a direct interface with the proposed lots.  He says the proposed development will replace the open outlook and treed backdrop with views to 12 houses that are tightly packed together on relatively small and narrow lots.[92]  As I understand Dr McGowan’s evidence, this is a matter on which Dr McGowan places considerable weight.
  12. [96]
    Dr Chenoweth considers this matter to be of little significance when considering the impact of the proposed development on the visual amenity and character of the local area.  He says that while there may be eight or nine houses that interface with the proposed development, most are single storey with high fences at the rear.  The only two-storey houses that interface with the proposed development are those at 17 Bogong Street and 44 Oberon Esplanade.  As such, they are the only houses that have rooms that could overlook the rear fence into the proposed development.  Dr Chenoweth also observes that the houses are designed to face the street and Bulimba Creek parkland, rather than having an outlook towards or over the subject land. 
  13. [97]
    Dr Chenoweth also takes comfort from the fact that although some of the submissions from residents in the local area oppose the development of the subject land[93] because of the loss of rural residential character, none mention the loss of visible trees.[94]
  14. [98]
    I accept some of Dr McGowan’s evidence about the nature of the impacts.  The proposed development will replace the open outlook and treed backdrop with views of other residential development.  I do not accept that each resident will now look at 12 houses tightly packed together as suggested by Dr McGowan.  Rather, they will potentially see two or three houses.[95]  Nevertheless, this is not what they would reasonably expect having regard to City Plan.
  15. [99]
    I do not regard the absence of reference in the submissions to the loss of visible trees to be indicative of the development’s compliance with the requirements of City Plan as they relate to character.  Many of the submissions, including one from a house that will adjoin the proposed lots, express concern that the proposed development does nothing to maintain a rural residential character and will result in a change of rural feel in the area.  The submissions were made at a time when G R Construction sought 24 lots rather than 12, and when there was no proposal to retain the southern half of the subject land, and its vegetation, as part of a balance lot.  Nevertheless, the concerns expressed in the submissions are valid and are worthy of attention.  The creation of 12 new residential lots does not, of itself, “maintain” the rural residential character. 
  16. [100]
    That said, the evidence of Dr Chenoweth, other than with respect to the submissions, is also worthy of attention.  Considering Dr Chenoweth’s evidence about the design of the Bogong Street houses, it seems to me that Dr McGowan overstates the significance of the impact on them.[96]  He does not take proper account of the design of the houses; the impact of the height of the existing fences; or the prospect that gardens in the backyards of the proposed lots will screen any new house.[97]  My impression in that regard is reinforced by the oral evidence of the visual amenity experts.  The experts conceded that the change in visual amenity for residents on Bogong Street is largely limited to that which would be experienced if a resident stood at a particular point in the backyard of their property and looked out and over a 1.5 metre to 1.7-metre-high fence.[98]  The impact will be negligible. 
  17. [101]
    Fourth, Dr McGowan opines that there will be a material reduction in the open landscape values of the subject land as experienced from the parkland to the west of the subject land.[99]  This impact was of lesser concern to Dr McGowan.[100]
  18. [102]
    On this issue, Dr Chenoweth notes that there is currently very little public recreational use of parkland to the south of Oberon Esplanade.  The park does not contain any public facilities.[101]  To the extent that the park is used, the view from the park will include the balance part of the land, which will continue to exhibit a rural residential character.  The view will also include street trees and houses on proposed lots 1 and 2.  Those houses will largely obscure the view of houses on the other 10 new lots.[102]
  19. [103]
    The evidence of Dr Chenoweth on this issue persuades me that Dr McGowan’s opinion that there will be a material reduction in the open landscape values of the subject land as experienced from the parkland is an overstatement.
  20. [104]
    The impact of the proposed development on the character of the area was also addressed by the town planners.  I found the evidence of the town planner retained by G R Construction, Mr Buckley, to be persuasive.  It was well-reasoned.  He opines that the conversion of this relatively small part of the rural residential zone to a low-density residential use is unlikely to erode the character of the area.  That is because the subject land is flanked on two sides by visually prominent urban uses; it is topographically removed from most of the other green areas; and it displays a different land use context.[103]
  21. [105]
    Having regard to the matters referred to above, I am satisfied that the proposed development is not discordant with the visual amenity and character outcomes sought in ss 7.2.8.2.2 3.c. and 4.b. of the Hemmant-Lytton neighbourhood plan code.   
  22. [106]
    I am also satisfied that the proposed development sits comfortably with performance outcome PO25 of the Subdivision code.  The housing choice offered by the proposed development is consistent with the surrounding character.  It includes a rural residential lot adjoining the existing rural residential lot to the east, and residential lots of a character like those adjoining. 

Will the proposed development acceptably address potential acoustic amenity impacts and protect existing and future lawful industrial uses in the vicinity?

  1. [107]
    The juxtaposition of the subject land with land in the General industry A zone precinct of the Industry zone raises the need to consider whether the proposed development would ensure that the industrial premises are protected from encroachment that might restrict their use.  The strategic intent to afford industrial premises protection from restrictions caused by encroachment by incompatible uses is apparent from Theme 1, Element 1.3, specific outcome SO7 and land use strategy L7 and Theme 3, Element 3.2, specific outcomes SO2 and SO3 and land use strategies L2.1, L2.3, L3.2 and L3.4 in the Strategic framework.  They state:

3.3.4  Element 1.3 – Brisbane’s population-serving economy

Table 3.3.4.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO7

Brisbane preserves opportunities for low impact industry throughout the city in support of a strong population and economic growth.

L7

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.

3.5.3 Element 3.2 – Brisbane’s environmental quality and sustainable design

Table 3.5.3.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

Health and amenity

SO2

Brisbane provides an amenity which is appropriate to the uses and development intensity planned for the different parts of the city.

L2.1

Development accords with the pattern of zones, neighbourhood plans and overlays which provide the basis for managing health and amenity impacts and interfaces between land use activities.

L2.2

L2.3

Development involving an interface between a residential use and a non-residential use achieves the level of residential amenity specified in an applicable overlay and neighbourhood plan and does not otherwise affect reasonable health expectations.

SO3

Brisbane’s interface areas between industry or major gas, waste and sewerage infrastructure and sensitive uses are effectively managed in terms of industrial hazards and air and noise impacts.

L3.1

L3.2

Development of sensitive uses is prevented from encroaching upon industrial areas.

L3.3

L3.4

Development manages the transition of industrial areas to residential areas (or vice versa) to prevent conflict between incompatible uses.

  1. [108]
    These specific outcomes and land use strategies inform amenity expectations set by reference to the overall outcome in s 6.2.6.6 2.h. of the Rural residential zone code and the overall outcomes in ss 7.2.8.2.2 3.c. and 4.c. of the Hemmant-Lytton neighbourhood plan code.  They state:

“6.2.6.6  Rural residential zone code

  1. The purpose of the zone will be achieved through the following overall outcomes:

h. Development provides a high level of residential amenity.”

7.2.8.2.2 Hemmant-Lytton neighbourhood plan code

  1. The overall outcomes for the neighbourhood plan area are:

c. Development south of the Cleveland railway line maintains the rural and low density residential character of the area and responds to local values and circumstances, including areas of ecological significance and floodable land.  New residential development occurring south of the railway line ensures separation of residential communities from industrial areas located north of the railway line so that community health and wellbeing is protected and industry can continue to operate and grow.

  1. Hemmant and Tingalpa Road precinct (Hemmant-Lytton neighbourhood plan/NPP-001) overall outcomes are:

c. Development has a layout, form and density that minimises the risk of conflict between sensitive uses and existing industrial uses on nearby land in an Industry zone, to protect the health and wellbeing of future residents.”

  1. [109]
    Overall outcomes of the Subdivision code that the Council relies on to allege the proposed development will involve an unacceptable acoustic amenity outcome are:

“a. Development for reconfiguring a lot facilitates the creation of suitable lots for their intended use while not adversely impacting on the lawful use or identified values on other premises.

j. Development for reconfiguring a lot ensures safety and amenity of the intended uses and does not compromise the safe and efficient operation of existing and future lawful uses and activities in the vicinity of the site.”

  1. [110]
    The Council also relies on performance outcome PO1 of the Subdivision code.  It states:

“Development creates a lot with dimensions which enable lawful uses appropriate to the intended use and consistent with zones, zone precincts, neighbourhood plans and overlays which apply to the site and are intended for the locality under the planning scheme.”

  1. [111]
    These assessment benchmarks call for the following factual determinations:
  1. Does the proposed development accord with the pattern of zones, neighbourhood plans and overlays?
  2. Will future residents of the proposed development enjoy appropriate acoustic amenity?
  3. Will the proposed development adequately protect industrial development from encroachment?

Does the proposed development accord with the pattern of zones, neighbourhood plans and overlays?

  1. [112]
    As I have noted in paragraph [37] above, G R Construction appropriately concedes that its proposed development does not accord with the pattern of zones and the neighbourhood plan for the area.  This is because the proposed development seeks to facilitate low density residential development in the Rural residential zone.
  2. [113]
    It follows from this concession that the proposed development does not accord with Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 in the Strategic framework and performance outcome PO1 of the Subdivision code insofar as they call for development that accords with the pattern of zones and the neighbourhood plan. 
  3. [114]
    Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 in the Strategic framework and performance outcome PO1 of the Subdivision code also call for development to accord with overlays.  Overlays identify areas in City Plan that reflect state and local level interests.  Overlay areas are identified as having a particular sensitivity to the effects of development, or a constraint on land use or development outcomes.[104] 
  4. [115]
    Relevantly, the subject land is in the Industrial amenity overlay area.[105]  Inclusion of the subject land in that overlay triggers consideration of the Industrial amenity overlay code.[106] 
  5. [116]
    The Council does not allege non-compliance with the Industrial amenity overlay code.  Nevertheless, the absence of conflict with the provisions of this code is a relevant consideration given the purpose of the Industrial amenity overlay code is to:
    1. (a)
      implement the policy direction in Theme 3, Element 3.2; and
    2. (b)
      provide for the assessment of the suitability of development on land within the Industrial amenity overlay by reference to the health and wellbeing of the occupants of the proposed development.
  6. [117]
    The provisions of the Industrial amenity overlay code inform the amenity expectations for sensitive uses, such as dwelling houses,[107] that develop proximate to industrial uses.  The provisions also give guidance about the extent to which industrial development is to be protected from encroachment.  This is apparent from the overall outcomes to the Industrial amenity overlay code, which relevantly state:

“a. Development protects Brisbane’s industrial areas to ensure their integrity and effective operation.

c. Development for a sensitive use within the Industrial amenity investigation area sub-category is compatible with nearby existing uses that have the potential for off-site air or noise emissions and does not adversely impact on the continued operation of those existing uses.”

  1. [118]
    Where development is proposed on premises partly affected by an overlay, the assessment benchmarks for the overlay only relate to the part of the premises affected by the overlay.[108]  Here, the southern half of the subject land is identified as part of the Industrial amenity investigation area sub-category.  This is a strong indication of the extent of protection that City Plan intends to afford to the industrial area to the south. 
  2. [119]
    In its current form, the proposed development does not involve the creation of new residential lots in the Industrial amenity investigation area.  As such, the proposed development complies with the requirement for development to accord with overlays.  That requirement appears in Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 in the Strategic framework and performance outcome PO1 of the Subdivision code.[109]

Will future residents of the proposed development enjoy appropriate acoustic amenity?

  1. [120]
    The Council contends that the proposed development will not enjoy an appropriate level of residential amenity because of the acoustic impact occasioned by nearby industrial development.
  2. [121]
    To assist me in determining issues associated with acoustic impact, the parties called expert evidence from Mr Paul King and Ms Gillian Adams, the acoustic engineers retained by G R Construction and the Council respectively.
  3. [122]
    Mr King prepared modelling based on monitored noise levels at appropriate locations on the subject land and additional ad hoc monitoring by his staff.  Mr King opines that the modelling indicates that compliance with the City Plan noise standards for single storey residential dwellings can be achieved by construction of an acoustic barrier along the southern boundary of the subject land.[110]  He says that the modelling also indicates that compliance with City Plan noise standards for two-storey residential dwellings can be achieved by the imposition of conditions that require acoustic grade construction of the upper levels and mechanical ventilation to noise affected rooms, or standard grade construction with mechanical ventilation to habitable rooms on the upper level.[111]  In Mr King’s experience, the proposed acoustic treatments are a practical and feasible outcome that are not uncommon for residential development located near commercial, industrial or transportation noise sources.[112]  Mr King also opines that, with the construction of the proposed acoustic barrier along the southern boundary, there will be a reduction in the industry noise levels experienced at the existing residential uses to the north.  That is, approving the proposed development will result in an improvement for existing residents of Bogong Street.[113]  Importantly, the proposed acoustic barrier will result in the noise experienced by future residents of the proposed development being similar to, and likely less than, the current noise levels experienced by the residents of Bogong Street.[114]
  4. [123]
    Ms Adams agrees that the modelling undertaken by Mr King was appropriate to predict future noise levels that might be experienced by residential development on the proposed lots.  She agrees with the assumptions underlying the modelling, and the methodology deployed by the software used to create the model.[115]  Ms Adams accepts that the calibration of the model was such that the outputs reflect a degree of conservatism.  The model predicts, as a base case, more noise in the locality than the testing discloses.[116] 
  5. [124]
    Ms Adams concurs with Mr King about the proposed development’s compliance with City Plan noise standards.  She acknowledges that the acoustic engineering measures proposed for the upper storey of any house on the proposed lots is a common solution.[117]  Ms Adams shares Mr King’s opinion that the residents of Bogong Street will enjoy an improvement in their noise conditions if the proposed development proceeds.[118] 
  6. [125]
    Despite the absence of discord between the acoustic engineers about the matters referred to in paragraphs [122] to [124] above, during cross-examination, Mr King was questioned extensively about the appropriateness of the tests undertaken and his opinions in relation to the acoustic environment that will be experienced by residents.  He provided cogent explanations that justify his approach to investigations and modelling, the details of which he sets out in the joint reports.[119]  He also provided detailed and well-reasoned explanations for his opinions.[120]  Mr King’s evidence was compelling. 
  7. [126]
    For the reasons provided above, I am comfortably satisfied that the nature of the investigations that Mr King undertook were appropriate and that his opinions are sound.  I accept his evidence.  I am satisfied that future residents of the proposed development will enjoy appropriate acoustic amenity.

Will the proposed development adequately protect industrial development from encroachment?

  1. [127]
    Historically, the subject land was part of a larger rural-zoned allotment at 281 Hemmant-Tingalpa Road.  That land was subsequently subdivided to create a residential estate, accessed from Pinnibar Street, and a 100-metre-wide band of non-urban zoned land.  Mr Gaskell, the town planner retained by the Council, accepts that, under previous planning schemes, the non-urban zoned land was intended to buffer the residential estate from the industrial estate on Fleming Road.  At the time, the industrial estate was zoned to permit noxious, offensive, and hazardous industrial uses.[121]
  2. [128]
    The 100-metre-wide buffer land comprised several lots, including 339 Hemmant-Tingalpa Road (of which the subject land was part) and an adjacent property at 341 Hemmant-Tingalpa Road.  The property at 339 Hemmant-Tingalpa Road was subdivided to create three lots.  Two lots continue to have access from Hemmant-Tingalpa Road to the east.  The other lot, being the subject land, obtains access from Oberon Esplanade.  Each of the four lots that comprise that historical buffer are now in the Rural residential zone.
  3. [129]
    Although the planning scheme has changed, City Plan continues to evince an intention to protect currently operating lawful industry in this area.  Equally, it anticipates buffers to be the primary means of achieving that protection. 
  4. [130]
    The proposed development would facilitate a greater intensity of low-density residential development, which is a sensitive use under City Plan, within this historical 100-metre-wide buffer between the existing residential estate and the existing industrial estate.  The industrial estate is in the General industry A precinct of the Industry zone.  The industrial operations in that area are longstanding.  Some of them have been in place since 1985, if not earlier.[122] 
  5. [131]
    In those circumstances, the Council contends that the proposed development would risk unreasonable restriction on, or compromise of, the continuation or expansion of existing industrial activities, and would pose an unacceptable risk for the establishment of future industrial activities in the existing industrial estate to the south of the subject land.  The Council submits that the noise modelling performed by Mr King is insufficient to establish that the proposed development would not give rise to unacceptable reverse amenity impacts on existing and future industry uses on the adjacent industry zoned land.[123]
  6. [132]
    The Council relies on the opinions of Ms Adams to support its contentions.  It says her evidence demonstrates that the proposed four-metre-high barrier may not provide adequate noise attenuation for all future industrial activities that might lawfully occur under the existing approvals for the industry area to the south of the subject land.  The Council says that Ms Adams’ evidence establishes that any changes to the existing approved industry activities may cause the prescribed noise criteria at the proposed lots to be exceeded.  In consequence, the proposed development would be subject to unacceptable acoustic amenity impacts from future industrial activities.
  7. [133]
    Ms Adams opines that future changes to approved industrial activity may exceed the noise standards at the proposed future residential lots.  She says that the reverse amenity issue and the proposed encroachment of residential development proximate to the industrial activity will adversely impact the potential for industrial activity to be undertaken in the industrial zone and will place unreasonable constraints on the operations in that zone.[124]
  8. [134]
    As I understand the evidence of Ms Adams, one of the fundamental assumptions that informs her opinions is that most of the industry uses that operate in the adjacent industry area are conducted pursuant to development approvals that have no or limited noise conditions.  Consequently, she assumes that there is presently no constraint on them operating at greater noise levels or for extended hours of operation.[125]
  9. [135]
    Ms Adams says that the noise modelling by Mr King is based on the current operations of the industrial uses.  Ms Adams criticises the modelling as a point in time analysis, rather than a complete view based on potential future requirements of industry that has approval to operate.  She says the modelling does not consider extension to, or increased intensity of, existing activities, or extension of hours of operation into the evening or night-time period, or 24-hour operations.  As such, Ms Adams is of the opinion that the potential changes to the approved industrial activity may exceed the acceptable noise standards for the proposed future residences, even with the proposed four-metre-high acoustic barrier.[126]
  10. [136]
    At first blush, the Council’s contentions, and the evidence of Ms Adams, are compelling.  This is because of a combination of three things.  First, as I have noted above, City Plan continues to evince an intention to protect currently operating lawful industry in this area.  Second, City Plan anticipates buffers to be the primary means of achieving that protection.  Third, the proposed development would facilitate a greater intensity of residential development proximate to industrial activity in a zone where the increase in intensity is not anticipated.  Nevertheless, with closer scrutiny, the Council’s contentions lose considerable force.[127]  That is so for the six reasons that follow.
  11. [137]
    First, as was appropriately acknowledged by Mr Gaskell, under City Plan, the primary planning technique to provide an appropriate buffer to land zoned for industrial uses is the Industrial amenity overlay code.[128]  The proposed development, in its current form, is outside of the Industrial amenity overlay.[129]  This is a strong indication that the proposed lots are sufficiently distant from the land in the General industry A precinct of the Industry zone. 
  12. [138]
    In addition, even though the proposed development does not need to comply with the Industrial amenity overlay code,[130] Mr King’s evidence demonstrates that, with the proposed acoustic barrier, the proposed development will comply with the requirements in Table 8.2.13.3.E.  As such, it will comply with performance outcome PO3 of the Industrial amenity overlay code.  That provision is directed at ensuring development is protected from adverse noise impacts.  Compliance with it is another strong indication that the proposed development will not adversely impact on the continued operation of industrial development to the south.[131]
  13. [139]
    Second, it bears repeating that, with respect to the noise modelling, Ms Adams agrees with Mr King that the modelling demonstrates that residents of dwellings on Bogong Street currently experience a level of noise that exceeds that which is considered appropriate having regard to the noise standards in City Plan.  The experts also agree that, in the event the proposed development proceeds, those residents will experience less noise than they are currently experiencing.  It is also common ground between the experts that the noise levels at the proposed dwellings will be similar to, in fact likely less than, the levels currently being experienced at Bogong Street. 
  14. [140]
    As was noted in the Written Submissions on behalf of the Appellant, it follows that, having regard to current noise levels, the proposed development reduces the risk that the operations of industrial uses will be constrained by reason of complaints about adverse noise impacts, i.e. the reverse amenity risks are reduced.[132]
  15. [141]
    In addition, as the proposed acoustic barrier will remain in place during the evening and night, as a matter of logic, the proposed development will improve reverse amenity impacts if noise making during the evening and night-time starts up in the industry area.
  16. [142]
    Third, the Council’s concern does not appear to relate to reverse amenity implications of the existing industrial uses of the area to the south of the subject land.  Rather, the Council seems concerned to protect those industrial uses if they decide to make more noise, or to operate 24 hours per day.  In response to that issue, Mr Holt QC submitted that the prospect of such increases in the intensity of the industrial uses is hypothetical, speculative, and unlikely.  His written submissions in this regard state:

“11. The noise making activities in the industrial area are currently only conducted in the daytime. This is hardly surprising given the planning and regulatory framework that sits around it:

a. The industrial area is zoned Industry A.  That anticipates “low-impact industry, service industry and warehouse uses” and “a broad range of uses compatible with adjacent residential uses”;[133]

b. An Acceptable Outcome for the Industry A zone is operations between 7am and 7pm;[134]

c. It was uncontroversial during the evidence that the history of the industrial area demonstrates a trend towards less intensive and noisy activity;[135]

d. Users of the industrial area must comply with rules about noise making quite apart from conditions in any development approval that they hold.  In particular, the general environmental duty and offence of environmental nuisance under the Environmental Protection Act 1994 (EPA) operate to constrain noise makingAs Mr King explained, section 440 of the EPA contains default noise standards that operate as constraints and a breach of those standards are offences pursuant to section 440Q6.  Section 440P also prevents the use of certain regulated devices between 7pm and 7am including compressors, generators, impacting tools and electrical, mechanical or pneumatic power tools;

e. The noise making activities currently taking place already exceed the agreed (as between the noise experts in this case) noise limit derived from the City Plan (43db) during the day. The proposition that there can be divined a planning intention to permit industry in this area to operate at night and in the evening when that industry is already exceeding agreed City Plan derived daytime levels should be summarily rejected;

f. As both Town Planners accepted, the contemporary approach to creating buffers for industrial activities (and so dealing with reverse amenity issues) is with overlays.[136] The industrial overlay for this very industrial area does not extend to the location of dwellings on the proposed development.”

  1. [143]
    These submissions make it clear that it is G R Construction’s case that the prospect of an increase in noise from the industrial activities is minimal.  I accept these submissions. 
  2. [144]
    Fourth, it is difficult to accept Ms Adams assumption that the existing industrial uses have an entitlement to intensify their operations under their existing approvals in a manner that is unconstrained.  The extent to which the operations of the current industrial uses might legally intensify without the need for a further development approval depends on the proper construction of the nature and extent of the development approvals (including their conditions) within the legal framework of the Planning Act 2016.  The development approvals were not placed before me.  Further, under the Planning Act 2016, a material increase in the intensity or scale of a use of premises is defined as a material change of use.  It is a form of development for which a planning scheme may require a new development permit.
  3. [145]
    Fifth, there are presently sensitive uses that are closer to the industrial area than those that may establish on the proposed lots.  As such, to the extent that the industrial area might be constrained by the proposed development, the constraint is no greater than that which presently exists.
  4. [146]
    Again, Mr Holt’s written submissions on this issue are compelling.  He says:

“12. The Respondent’s case on reverse amenity in this sense is illogical.  It claims that the industry area is currently unconstrained in its noise making entitlement because there are no conditions on current development approvals.  Putting to one side the flawed evidence base for that proposition, the fundamental problem is that such a lack of constraint would still exist if the proposed development is approved.

  1. In reality, the industrial area is already heavily constrained for the regulatory reasons discussed above.[137]  In addition, those constraints relate to sensitive receptors that are closer to the industrial area than the proposed development:

a. Most obviously, the current dwelling house on the proposed balance lot is closer to the industrial area than future dwelling houses in the proposed development.  Ms Adams agreed that with the proposed development (because of the acoustic barrier) this property will have an improved noise situation.[138]  That is, the proposed development will improve the position from a reverse amenity perspective.

b. There are other residential lots with dwelling houses immediately adjacent or otherwise very close to the industrial area as Ms Adams accepted by reference to exhibit 6.5.[139]

c. There are proposed residential areas zoned nearby which cause Ms Adams to accept that “…quite apart from the proposed development there’s an awful lot of residential both right next to this industrial area and proposed to be very close”.[140]

  1. [147]
    Sixth, by the end of Mr King’s evidence, I was left with the impression that he:
    1. (a)
      understood the Council’s concern about reverse amenity;
    2. (b)
      appreciated all the relevant integers that inform consideration of the issue;
    3. (c)
      had given proper and careful thought to the integers; and
    4. (d)
      could provide a cogent explanation about why the proposed development did not, in his opinion, represent an unreasonable encroachment on the operations of the existing industrial uses or their ability to alter or expand in the future. 
  2. [148]
    The same is not true of the evidence of Ms Adams.  It seemed to me that Ms Adams did not understand the concept that she was trying to defend.  Further, as I understood Ms Adams’ evidence, she places considerable store in the fact that the proposed development would introduce 12 houses at a location that is closer to industry than the houses on Bogong Street.[141]  However, Ms Adams could not articulate how that would impinge the operation of the existing industrial uses, either based on their current operations or by reference to hypothetical current or future operations.
  3. [149]
    During her cross-examination, Ms Adams accepted that when analysing the potential impact of noise, and the constraint that further residential development might pose to an industry’s ability to operate in a way that generates noise impact, it is relevant to consider two key integers.  The first is amelioration by distance from the source of the noise.  The second is amelioration by other means such as noise barriers.  Despite that, when given multiple opportunities to explain her opinions, Ms Adams clung to the potential location of 12 new residences at a location closer to industry than those houses on Bogong Street.  She ignored the countervailing consideration associated with the proposed development, namely amelioration by means of the proposed noise barrier.[142] 
  4. [150]
    In terms of the constraint on an industrial operation posed by proximity of residences, Ms Adams repeatedly appeared to turn a blind eye to the fact that the existing house on the subject land is closer to the industrial areas (and any conceivable future industrial operation) than those that might be built on the subject land if the proposed development were approved. 
  5. [151]
    In addition, as I have observed in paragraph [144] above, Ms Adams’ evidence is founded on an assumption that is difficult to accept.
  6. [152]
    For those reasons, I prefer the evidence of Mr King to that of Ms Adams.
  7. [153]
    Mr King opines that the proposed development will not result in any greater reverse amenity constraint upon lawful industrial activity than that which presently exists.  He says the proposed acoustic barrier will ensure that the noise experienced at the future residences will comply with the noise standard under City Plan.  He says it will be like that experienced by existing residential development to the north.  Further, the approval of the proposed development will result in acoustic improvements at the existing houses.[143]  I accept this evidence.

Conclusion regarding acoustic amenity and reverse amenity issues

  1. [154]
    The proposed development does not accord with Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 in the Strategic framework and performance outcome PO1 of the Subdivision code insofar as they call for development that accords with the pattern of zones and the neighbourhood plan. 
  2. [155]
    However, for the reasons provided above, I am satisfied that the proposed development complies with more focussed provisions of City Plan that address the interface between a residential use and a non-residential use.  In this respect, it is relevant that the proposed development complies with the Industrial amenity overlay code.  It also complies with the acoustic amenity and interface outcomes sought in:
    1. (a)
      Theme 1, Element 1.3, specific outcome SO7 and land use strategy L7;
    2. (b)
      Theme 3, Element 3.2, specific outcome SO3 and land use strategies L2.3, L3.2 and L3.4 in the Strategic framework;
    3. (c)
      the overall outcome in s 6.2.6.6 2.h. of the Rural residential zone code;
    4. (d)
      the overall outcomes in ss 7.2.8.2.2 3.c. and 4.c. of the Hemmant-Lytton neighbourhood plan code; and
    5. (e)
      the overall outcomes in 2.a and j of the Subdivision code. 
  3. [156]
    In addition, the proposed development complies with Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1 in the Strategic framework and performance outcome PO1 of the Subdivision code insofar as they call for development that accords with overlays. 

Would a decision to approve the proposed development result in an inappropriate ad hoc approach to land use planning?

  1. [157]
    Council submits that an ad hoc approach to land use planning ought to be discouraged.  It argues that whether the subject land would form part of the land that may need to be allocated for the supply of urban residential development at some time in the future is a question that ought to be left to the Council as the planning authority. 
  2. [158]
    In support of its submission that an ad hoc approach is to be discouraged, the Council cites this Court’s decisions in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council[144] and Glenella Estates Pty Ltd v Mackay Regional Council & Ors.[145]  They are cases in which the non-derogation principle was applied to refuse the development application.
  3. [159]
    Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council[146] concerned a development application to rezone 3,500 square metres of land fronting Racecourse Road, Ascot from the Residential B zone to a Particular Development zone.  The rezoning would enable the site to be used for a complex with a gross floor area not exceeding 913 square metres and comprising shops and a coffee shop.  The site was made up of six separate residential allotments.  The real issue in the case was whether it was desirable, from a planning viewpoint, to introduce a non-residential use of the scale proposed onto the western side of Racecourse Road in an area that was entirely residential. 
  4. [160]
    At the time, in recognition of the growing need for further retail and commercial facilities to serve the area, the Council was engaged in land use planning for the area.  It had prepared a draft development plan that was on public display.  The expressed aims of the draft development plan included preserving and enhancing the unique character of the area; facilitating the preservation of residential amenity in the planned area; encouraging a harmonized mix between retail, commercial and residential uses; and containing commercial and retail development within discrete clusters.  Consistently with those objectives, the subject land was included in Residential Precinct P1, which was intended predominantly for medium intensity residential development and in which commercial or retail uses were to be strictly prohibited to ensure that residential land uses were adequately protected.
  5. [161]
    The Court heard evidence from town planners about the effect that approval of the rezoning would have on the proposed planning strategy that was reflected in the draft development plan.  The town planner retained by the developer considered the draft to reflect sound planning and accepted it provided desirable performance standards.  However, he made some criticisms of the draft development plan and considered that the development proposal was an appropriate and logical option for commercial development in the area.  The town planner retained by the Council opined that if the proposed development was put into effect, it would constitute a serious obstacle to the implementation of the draft development plan.
  6. [162]
    His Honour Judge Quirk found:[147]

“I must emphasize that I fully appreciate that, at the time of this appeal, the plan was still on exhibition from the receipt of public objection to it.  One can not (sic) say with any certainty what form it will ultimately take.  However, I can not (sic) get away from the fact that its adoption by the Respondent is a clear statement of planning strategy which, for reasons which I have already noted, has, I accept, been made in a careful and well considered way.  The opinions of Mr Challenor are invariably worthy of respect and I do not reject his criticisms of the plan as necessarily ill-founded.  However, I accept the view put forward by Mr Humphries that this proposal would be a serious intrusion upon the integrity of the Residential Precinct 1 which forms an important part of the Draft Development Plan.

It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane.  It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper (sic) has chosen to adopt (Brazier v Brisbane City Council 26 LGRA 322 at 327).  As was observed by Carter J in Sheezel & Anor v Noosa Shire Council 1980 QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question.  Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to “cut across” in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.”

  1. [163]
    Glenella Estates Pty Ltd v Mackay Regional Council & Ors[148] was similarly a case where the Court formed the view that a decision to approve the proposed development would preclude the local authority’s options when reviewing planning scheme arrangements for the area generally.[149]
  2. [164]
    In this case, the Council relies on four matters that it says demonstrate that a decision to approve the proposed development result in an inappropriate ad hoc approach to land use planning.
  3. [165]
    First, City Plan sets out the Council’s intention for the future development in the planning scheme area over the next 20 years. 
  4. [166]
    Second, the Council, as the planning authority, is required to, and does, periodically review its planning scheme.  City Plan records the Council’s intention to review City Plan periodically in accordance with the Planning Act 2016 to ensure that it responds appropriately to the changes of the community at a local, regional, and State level.[150]
  5. [167]
    That the Council periodically reviews City Plan is reflected in the adoption of the Hemmant-Lytton neighbourhood plan code about four years ago.  Mr Buckley and Mr Gaskell observe that it commenced on 24 March 2017 after undergoing public consultation and State interest checks for more than three and a half years. 
  6. [168]
    Third, the Hemmant-Lytton neighbourhood plan code is a relatively contemporary planning instrument that provides finer grained planning at a local level.  It has deliberate allocations of large parcels of land in the Emerging community zone that are intended to accommodate demand for future housing in the area.
  7. [169]
    Fourth, if any unsatisfied demand for more residential land emerges, through a review of City Plan by the Council, land can be allocated to accommodate the population growth or to respond to any changes in economic or social conditions.  This could occur by the Council undertaking an appropriate review of the Hemmant-Lytton neighbourhood plan to allocate more land that is appropriate for urban development in an integrated and orderly manner. 
  8. [170]
    Those matters are uncontroversial.  However, I do not accept that they support a conclusion that a decision to approve the proposed development would represent an ad hoc approach to land use planning.  There is a material difference between the situation in this case and the situation addressed in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council[151] and Glenella Estates Pty Ltd v Mackay Regional Council & Ors.[152]  Here, I am satisfied that a decision to approve the proposed development is not determinative of either the balance lot or the future for other land in the Rural residential zone for the reasons that follow.
  9. [171]
    Although a decision to approve the development application would facilitate the use of part of the subject land for urban development, more than half of the land would be retained for use consistent with its Rural residential zoning.  Further, that part of the subject land proposed to be developed for residential lots has a combination of attributes that are peculiar to it.  Relevantly, the proposed residential lots are:
    1. (a)
      juxtaposed with existing residential development;
    2. (b)
      separated from other land in the Rural residential zone by the proposed balance lot, which will remain in the Rural residential zone and is of a size that befits its maintenance as a rural residential parcel;
    3. (c)
      visually separated from the balance of the land in the Rural residential zone, and from Hemmant and Tingalpa Road, by the ridge on the subject land.  They make no meaningful contribution to the rural or rural residential character of the area;
    4. (d)
      sufficiently separated from the existing industry to ensure there will be no adverse acoustic impacts on the future residences and no unacceptable restriction on industrial development on the nearby land;
    5. (e)
      able to be accessed via the existing Pinnibar Street connection to Hemmant-Tingalpa Road.  They do not require direct vehicular access off Hemmant-Tingalpa Road;
    6. (f)
      able to utilise existing infrastructure and services; and
    7. (g)
      not on land that is of ecological significance or floodable.  The development will not adversely affect the environmental or flood conveyance value of Bulimba Creek.
  1. [172]
    Even the proposed balance lot does not benefit from this same combination of attributes.  As such, a decision to approve the proposed development is not determinative of either the balance lot or the future for other land in the Rural residential zone.
  2. [173]
    In those circumstances, I am satisfied that this is not a case where an approval would have fundamental or far-reaching consequences for expectations about the ability to develop land in the Rural residential zone, either across Brisbane or in the Hemmant-Lytton neighbourhood plan area.  It would not represent a serious intrusion on the integrity of the Rural residential zone.  A decision to approve the proposed development would not intrude on the Council’s role as the planning authority. 

Are there relevant matters that tell against approval?

  1. [174]
    The Council contends that an approval of the proposed development would be contrary to community expectations for development of the subject land. 
  2. [175]
    As is noted by the Council in its written submissions, community expectations are informed by City Plan and the physical environment of the locality.[153]
  3. [176]
    I have already identified in paragraph [98] above that the proposed development is not consistent with what the residents of Bogong Street, or the community generally, might reasonably expect having regard to City Plan.  This is because it would result in the creation of 12 lots on land in the Rural residential zone.[154] 
  4. [177]
    That the proposed development does not accord with community expectations is evidenced by the submissions.[155]  There were 52 properly made submissions with respect to the proposed development.  Although some were supportive, the vast majority opposed the development.
  5. [178]
    This is a matter that tells against approval.

Are there relevant matters that support approval?

  1. [179]
    G R Construction advances several matters that it says support approval and should be considered in the exercise of the planning discretion.  They are that:
    1. (a)
      the proposed development does not cut across the intent of City Plan;
    2. (b)
      there is a need for the proposed development;
    3. (c)
      the proposed development would be compatible with the amenity and character expectations for the locality; and
    4. (d)
      the proposed development would not cause or be subject to any unacceptable flooding or stormwater impacts, traffic impacts or air quality impacts.
  2. [180]
    Each of these are relevant matters for the purpose of assessing the development application under s 45(5)(b) of the Planning Act 2016.  The issue is whether they have been established on the evidence and, if so, how they inform the exercise of the discretion.

Will the proposed development cut across the intent of City Plan?

  1. [181]
    G R Construction contends that, to the extent that the proposed development does not accord with City Plan, it does not fall foul of the planning intent that informs the provisions.
  2. [182]
    As was identified during the Council’s cross-examination of Mr Buckley, there are four planning strategies in City Plan that are of relevance in this case.  First, City Plan clearly identifies that land in the Hemmant-Lytton neighbourhood plan area on which residential development is intended.  Second, there is recognition of existing industrial uses and an intention to ensure appropriate separation between residential and industrial uses.  Third, there is an intention to retain and protect industrial uses.  Fourth, there is an intention that land in the rural residential zone is retained for, amongst other things, its contribution to housing choice, its contribution as a visual landscape break, and its ecological contribution.[156]
  3. [183]
    Whether there is compliance with these strategies calls for further consideration of the provisions of the Hemmant-Lytton neighbourhood plan code. 
  4. [184]
    As I have already found, the proposed development does not comply with the requirement in the overall outcome in s 7.2.8.2.2 3.d. of the Hemmant-Lytton neighbourhood plan code that urban residential development is limited to land within the Low density residential zone and the Emerging community zone.  However, that outcome goes on to identify the planning reason or strategy that underpins the requirement.  That it does so is evident from the use of the words “so as to”. 
  5. [185]
    The planning reason for the requirement is to:

“clearly define future residential areas, protect areas of ecological significance, avoid land subject to environmental constraint and provide for the efficient provision of infrastructure.”

  1. [186]
    The purpose of inclusion of land in the Rural residential zone is also apparent from the overall outcome in s 7.2.8.2.2 3.e. of the Hemmant-Lytton neighbourhood plan code.  It states that land in the Rural residential zone is unsuitable for urban development.  This is because of the intention to maintain the very low density rural and landscape character of the land.
  2. [187]
    Mr Buckley acknowledges that the land is not in the Low density residential zone or the Emerging community zone.  He accepts that the Hemmant-Lytton neighbourhood plan code is a contemporary planning document but notes that its preparation was not informed by the depth of analysis with respect to the subject land that is available as part of this appeal, particularly in relation to the relationship between industrial and residential uses either side of Fleming Road.[157] 
  3. [188]
    Mr Buckley opines that the proposed development will deliver an efficient use of the subject land.  It will reinforce the obvious residential land use patterns adjoining the subject land without adversely affecting the visual and industrial buffer contribution that the wider rural-residentially zoned land makes to the locality.  He explains that this is because the subject land is of a comparatively narrow configuration flanked by housing on one side and industrial development on the other that, when combined, convey an urban context rather than a rural-residential one.  He says that the topography reinforces the distinction between the subject land and the similarly zoned land to the east and southeast.
  4. [189]
    Mr Gaskell acknowledges that the purpose of the outcomes of the Hemmant-Lytton neighbourhood plan code is to set aside land in the rural residential zone for its landscape and ecological values; to achieve appropriate separation from industry; and to provide rural residential lots for those seeking “lifestyle” lots.[158]  However, he says that the proposed development cuts across the intent in the Hemmant-Lytton neighbourhood plan code to protect the land for its ecological values, scenic amenity and landscape values.  He also says that the proposed residential development increases the risk of conflict between land uses given its proximity to adjacent industrial development.[159]
  5. [190]
    I prefer the evidence of Mr Buckley to that of Mr Gaskell.  Having regard to Mr Buckley’s evidence, I am satisfied that the proposed development does not offend the planning rationale for its retention in the Rural residential zone.  It represents a logical extension of an existing community, which is already planned to expand to the north.[160]  The location of the proposed development contiguous to an established community will ensure access to existing services, open space, and community and social networks.  The proposed development does no violence to the development pattern evident in City Plan.
  6. [191]
    For reasons I have already explained, I am satisfied that the proposed development will have no unacceptable adverse impact on the rural character of the area.  It is barely visible from external viewpoints.  The proposed development will retain rural residential character on the subject land by way of the balance lot.  This ensures that it will still provide the choice of a “lifestyle” lot.  The proposed development protects the subject land’s ecological values, scenic amenity, and landscape values. 
  7. [192]
    The proposed development also achieves an appropriate separation from industry. 
  8. [193]
    In the circumstances, I am satisfied that the proposed development does not fall foul of any of those planning reasons for its retention in the Rural residential zone.  This is so even were “environmental constraint” to be construed as including landscape, visual and noise constraints as contended for by the Council.  The proposed development accords with the planning strategies in City Plan. 
  9. [194]
    The absence of discord between the proposed development and many of the provisions of City Plan raised by the Council, and the accord between the proposed development and the planning strategies in City Plan, are relevant for two reasons. 
  10. [195]
    First, they demonstrate that G R Construction has discharged its onus with respect to many of the Council’s allegations of non-compliance with assessment benchmarks, on which the Council relies to contend for refusal. 
  11. [196]
    Second, my findings demonstrate that the proposed development does not offend the planning intent that underpins the provisions with which there is non-compliance.  This is a matter that supports approval. 
  12. [197]
    As I observed in Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors[161]at [68]:

“Where City Plan neither permits nor prohibits a particular development,[162] it is relevant to consider the proposed development’s failure to comply with certain development standards in City Plan in combination with the many standards with which it complies.  The observations of Jacobs J in District Council of Munno Para v Remove-All-Rubbish Co Pty Ltd[163] are apposite in this regard.  His Honour said:

“The Planning Act, incorporating the Development Plan, is a practical code calling for practical application; and where the Development Plan neither permits nor prohibits a particular development, the task of the planning authority is to weigh up the “pros” and “cons” with due regard to the guidance afforded by such of the general planning precepts and policies in the Plan as may be relevant.  But to suppose that the “pros” and “cons” are in watertight compartments, or that they do not overlap, is to ignore the complexity of the subject matter and the competing elements which have to be weighed in deciding where the planning balance lies.[164]

  1. [198]
    Here, the proposed development does not offend the planning intent that underpins the provisions with which there is non-compliance.  This is a countervailing consideration to the failure to comply with all assessment benchmarks.  It is a relevant matter in the exercise of the planning discretion.

Is there a need for the proposed development?

  1. [199]
    The parties accept that the general principles that inform and guide an assessment of need are well-settled, and that they are conveniently summarised in Isgro v Gold Coast City Council & Anor.[165]  As His Honour stated:[166]

“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. [200]
    Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire but relates to the well-being of the community.[167]  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.[168]  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.[169]
  2. [201]
    G R Construction contends that there is a need for the proposed development.  It does not contend that the need is decisive of itself.  Rather, it contends that it is one of the matters that supports approval of the proposed development.  The Council disagrees.  It says there is no need for the proposed development.
  3. [202]
    On the issue of need, I had the benefit of expert evidence from Mr Gavin Duane and Mr Marcus Brown, the economists retained by G R Construction and the Council respectively.  Their evidence addressed both the quantitative and qualitative aspects of need.
  4. [203]
    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.  He accepts that there is a theoretical level of available land zoned to accommodate dwellings for the projected population and dwelling growth in the local study area that the experts agree is relevant.[170]  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)
      the population of Brisbane is growing and will continue to grow over the next 25 years;[171]
    2. (b)
      given the developed nature of the area, infill development will be required;[172]
    3. (c)
      given the limited extent of available broad hectare land, a substantial number of new dwellings are required from redevelopment of existing properties as compared to from development of broad hectare land;[173] and
    4. (d)
      a diverse range of housing choice in separate communities or locations will be required to sustain the rate of population growth.[174]
  5. [204]
    With respect to the broader considerations that inform the issue of need, Mr Duane says that the proposed development represents an opportunity for infill development near a significant amount of private and public infrastructure that supports residential development.[175]  In support of that opinion, Mr Duane notes that the closest public transport facility is the Hemmant railway station, which is 1.2 kilometres to the north.  There are also buses along Wynnum Road.  The railway station provides convenient access to the major employment node in the Brisbane central business district.  Other major employment nodes in the surrounding area include the Carindale activity centre to the south, and the Australia Trade Coast, including the Port of Brisbane and airport, to the north.  There are several park and recreation areas within the immediate precinct, and shopping and educational facilities at Wynnum West.[176]  Mr Duane opines that the proposed development would make greater economic use of this infrastructure, resulting in greater economic efficiency.  He regards this to be of benefit to the community.[177]  Mr Duane says that, in comparison, the continued use of the subject land for rural residential purposes has limited, if any, economic benefits. 
  6. [205]
    Mr Duane says that the proposed development will also contribute to the type of infill development which the South East Queensland Regional Plan 2017 identifies as being required to stop the unsustainable pattern of a dispersed, low density settlement extending outward into the regional landscape.[178]  He considers this to be reflected by the designation of the subject land as part of the Urban Footprint, rather than the Rural Living Area, in the South East Queensland Regional Plan.[179]
  7. [206]
    In addition, Mr Duane opines that the proposed development will meet market demand at an affordable price.[180]  It is difficult to accept this opinion.  While the proposed development may offer an affordable product, the grant of a development permit for reconfiguration of a lot does not guarantee delivery of the approved lots to market, let alone at a particular price.
  8. [207]
    Mr Brown opines that there is no need for the proposed development in the short to medium term.[181]  There are five reasons he provides for that opinion.  First, Mr Brown says there is a significant volume of approved lots or dwellings within the study area and, based on anticipated growth, these approvals provide several years of supply.[182]  Second, the proposed development does not materially contribute to housing choice and diversity.[183]  Third, Mr Brown opines that there is a material quantum of capacity in sites zoned for residential uses across the study area.  He says those sites will yield a mix of detached and attached product and will offer a diversity of location and product.[184]  Fourth, Mr Brown opines that the subject land is not well located for low density residential development given its proximity to industrial uses and its location in a comparatively isolated pocket of the Brisbane urban fabric.  He accepts that, from an employment commuting perspective, it is well located to major employment nodes, such as Carindale and the Australia Trade Coast, but says it remains isolated from day-to-day services.[185]  Fifth, Mr Brown opines that, based on the projected dwelling demand, there are enough approved lots to meet demand until 2038.[186]
  9. [208]
    I do not accept Mr Brown’s opinion that the proposed development is not well located for low density residential development.  When cross-examined about this opinion, Mr Brown seemed determined to cling to the impact of noise, even though he possesses no relevant expertise and had undertaken no analysis of the impact of the proposed acoustic fence on the current noise environment.  I am satisfied that the proposed development is well located for low density residential development.  The subject land is contiguous to an existing residential estate and in an area that is currently transitioning to a low-density residential area. 
  1. [209]
    Even if I accept the other four bases for Mr Brown’s opinion, it does not follow that there is no need for the proposed development. 
  2. [210]
    Having regard to the evidence of Mr Duane referred to above, which I generally accept,[187] I am satisfied that the proposed development will improve the ease, comfort, convenience, and efficient lifestyle of the community.  For reasons already explained, the characteristics of the subject land present an opportunity to incorporate more intense built form on the subject land without adverse planning consequence.  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. 
  3. [211]
    That said, 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.[188]  I address the importance of need to the exercise of the planning discretion below. 

Will the proposed development be compatible with the amenity and character expectations for the locality?

  1. [212]
    G R Construction relies on its contention that the proposed development will be compatible with the amenity and character expectations for the locality in two ways.  First, it relies on it as informing the nature and extent of non-compliance with the assessment benchmarks for the purpose of the assessment under s 45(5)(a) of the Planning Act 2016.  Second, it relies on it as a relevant matter under s 45(5)(b) of the Planning Act 2016.
  2. [213]
    In paragraph [176] above, I find that the proposed development is not consistent with what the residents of Bogong Street, or the community generally, might reasonably expect having regard to City Plan.  This is because it would facilitate the creation of 12 lots for low-density residential development in an area zoned Rural residential.
  3. [214]
    Despite that, as I have explained in paragraphs [41] to [156] above, the proposed development is not discordant with the visual amenity, character, acoustic amenity, and reverse amenity expectations for the locality.  My findings in that regard are matters that support approval of the proposed development.

Will the proposed development cause or be subject to any unacceptable flooding or stormwater impacts, traffic impacts or air quality impacts?

  1. [215]
    In Abeleda & Anor v Brisbane City Council & Anor,[189] Mullins JA relevantly explained, in the context of an absence of off-site impacts:

“[61] The Council submits a relevant matter for the purpose of s 45(5)(b) of the Act that is not included as an example may be the absence of any negative impact from, or detrimental effect of a proposed development, in reliance on the observation of Holmes JA (as her Honour then was) in Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 at [25]. Westlink concerned a development application made when legislation that preceded the SPA was in force, but there was a similar provision in that legislation to s 326(1)(b) of the SPA. It was accepted by Holmes JA at [25] consistent with previous authority “that the mere absence of adverse effects will not amount to sufficient grounds to outweigh a conflict with the planning scheme; but it does not follow that the absence of a negative impact or detrimental effect is not a relevant consideration”. The terms of s 45(5)(b) of the Act are wide enough in an appropriate case for the absence of a negative impact or detrimental effect to be taken into account as a relevant matter on an impact assessment.”

  1. [216]
    Although the proposed development is of a density that sits uncomfortably with its inclusion in the Rural residential zone, residential development on the proposed lots is not attended by the usual symptoms of overdevelopment.
  2. [217]
    Here, the Council concedes that the proposed development will not cause, or be subject to, any unacceptable flooding or stormwater impacts, traffic impacts or air quality impacts. 
  3. [218]
    Further, as I have found above, the proposed development will not result in any adverse visual amenity, character, or acoustic consequences.
  4. [219]
    The absence of adverse planning consequences is a feature of the attributes of the subject land.  The subject land is flanked on two sides by visually prominent urban uses.  It is topographically removed from most of the other green areas and from view, and it displays a different land use context.
  5. [220]
    The absence of adverse planning consequences is a relevant matter to be considered in the exercise of the planning discretion.  It supports approval of the proposed development.

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

  1. [221]
    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.[190] 
  2. [222]
    In Abeleda & Anor v Brisbane City Council & Anor,[191] Mullins JA (with whom Brown and Wilson JJ agreed) observed:

[42] The last sentence in the above quote in describing the process of decision-making that s 326(1)(b) of the SPA did not permit should not be treated as anticipating the process of decision-making under s 60(3) of the Act. 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 non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

[54] Subject to recognition that the Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, I also agree with the observations of Williamson QC DCJ at [53]-[54] of Ashvan on the role of non-compliance with a planning scheme in the exercise of the planning discretion under s 60(3) of the Act:

[53] An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of the [Act]. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. That question is no longer answered by a provision such as s 326(1)(b) of the SPA. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the [Act]. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.

[54] In practical terms, the change to the statutory assessment and decision making framework may call for an assessment manager (or this Court on appeal) to reach a balanced decision in the public interest where two competing considerations are at play: (1) the need for the rigid application of planning documents on the one hand; as against (2) the adoption of a flexible approach to the application of planning documents to, inter alia, exercise the discretion in a manner that advances the purpose of the [Act].”[192]

  1. [223]
    Here, the Council contends that there is non-compliance with recent, clear, and deliberate planning strategies in City Plan, including in the Hemmant-Lytton neighbourhood plan code, which should not be readily departed from without proper justification.  It contends that there is no proper justification in this case for four reasons.  First, there is no reason to depart from the clear planning strategies.  Second, there is not a demonstrated need for the proposed development, nor has there been such a change in economic or social conditions which would warrant approval of the proposed development.  Third, the proposed development would result in adverse amenity impacts.  Fourth, the lack of unacceptable traffic, air quality, stormwater, flooding, or ecological impacts does not outweigh the non-compliance with City Plan.[193]
  2. [224]
    With respect to the first contention, there can be no doubt that the proposed development would facilitate a form of land use on the subject land that is contrary to the land use intention indicated by City Plan.[194]  This is conceded by G R Construction. 
  3. [225]
    As I observed in Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors:[195]

[86] In Magree & Ors v Landsborough Shire Council & Anor, Quirk DCJ observed:

“In the majority of town planning schemes [density] is the matter which, together with building height and bulk, forms the basis of difference between various residential zonings.  To deny the importance of residential density is, in my view, to betray a lack of appreciation of a very elementary planning concept.”[196]

[87] When one looks to the structure of City Plan, it seems to me that the allocation of land to a zone with a particular residential density is a planning decision of some moment.  Leaving aside the role of local plans, which are not in play in this case, the zoning of land is the planning tool used in City Plan to distinguish between the intensity of residential use intended for different areas of the city.  As such, the allocation of land to a zone is an important planning decision.  However, the importance of such a planning decision is not always appropriately respected by insisting on rigid adherence to the assessment benchmarks consequently called up without reference to their underlying planning purpose.[197] 

  1. [226]
    Those observations about the importance of allocation of land to a zone are equally apposite in this case.  The provisions of the Hemmant-Lytton neighbourhood plan code do not detract from the propositions. 
  2. [227]
    Having regard to the provisions with which non-compliance is conceded, it is evident that the proposed development is expressly discouraged on the subject land.  When the proposed development is viewed through that lens, this is a matter of significant force that points strongly towards refusal of the development application. 
  3. [228]
    However, a broader reading of City Plan indicates that the allocation of the subject land to the Rural residential zone reflects several underlying planning strategies.  They were identified by the Council and put to Mr Buckley during cross-examination.[198] 
  4. [229]
    For the reasons provided in paragraphs [181] to [198] above, I am satisfied that the proposed development does not offend the planning strategies that underpin the allocation of the land to the Rural residential zone.  This is a consideration to which I attribute significant weight when it is coupled with Mr Buckley’s evidence that the proposed development represents a logical extension of an existing community and will deliver an efficient use of the subject land without unacceptable town planning consequence. 
  5. [230]
    I am also satisfied that G R Construction has demonstrated that there is a need for the proposed development.  Need is a relative concept that will be given greater or lesser weight depending on the circumstances of the case.[199]  In this case, the demonstrated need is of little moment given the evidence of Mr Brown about the land available in the local area. 
  6. [231]
    G R Construction has also demonstrated that the proposed development would not result in adverse amenity impacts, or reverse amenity impacts. 
  7. [232]
    The lack of offence to the broader planning goals that inform the provisions with which the proposed development does not comply, coupled with the lack of unacceptable traffic, air quality, stormwater, flooding, ecological, amenity and reverse amenity impacts, provide a sound planning reason to approve the proposed development.

Conclusion

  1. [233]
    G R Construction has discharged its onus.  The appeal should be allowed, and the development application, as changed pursuant to orders of this Court, should be approved subject to lawful conditions.
  2. [234]
    My orders will be as follows:
  1. The appeal is allowed.
  1. The decision of Brisbane City Council notified by the decision notice dated 3 October 2019 is set aside.
  2. The development application is remitted to Brisbane City Council.
  3. Subject to further order of the Court, by 29 April 2022, Brisbane City Council is to give a decision notice approving the proposed development subject to lawful development conditions.

Footnotes

[1]  City Plan s 7.2.8.2.2 3.a.

[2]  City Plan s 7.2.8.2.2 3.c and Hemmant-Lytton neighbourhood plan map.

[3]  City Plan s 7.2.8.2.2 3.c.

[4]  City Plan s 7.2.8.2.2 3.d.

[5]  City Plan s 7.2.8.2.2 3.e.

[6] Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, [59].

[7] Planning and Environment Court Act 2016 (Qld) s 43.

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

[9]  Order of 30 September 2020 and order of 16 September 2021.

[10]  Practice direction 2 of 2020 [25].

[11]  Exhibit 1.7.

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

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

[14]  City Plan version 15 applied at the time the development application was properly made.  See Exhibit 5.1 p 2 [1].

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

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

[17]  [2020] QCA 253.

[18]  [2020] QCA 257.

[19]  [2020] QCA 273.

[20]  [2021] QCA 95.

[21]  [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

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

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

[24] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [40].

[25] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [53]; Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804‑6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]‑[14].

[26] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [56]-[57].

[27]  This was the categorising instrument for the development in effect when the development application was properly made. 

[28]  City Plan s 6.1(1).

[29]  City Plan s 9.4.10.2(1).

[30]  See paragraph [33] above.

[31]  See paragraph [34] above.

[32]  Written Submissions on behalf of the Appellant p 8 [39].

[33]  This was accepted by Mr Buckley: Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 19.

[34]  Outline of Submissions on behalf of the Respondent p 16 [75].

[35]  Outline of Submissions on behalf of the Respondent pp 19-20 [88].

[36]  Exhibit 3.4 pp 5-6 [3.1].

[37]  Exhibit 3.4 p 13 [3.12].

[38]  Exhibit 3.4 pp 5-6 [3.1].

[39]  Exhibit 3.1 p 7 [25]; Exhibit 3.4 p 13 [3.12].

[40]  See, for example, Exhibit 3.4 pp 6-8 and 21 and Exhibit 4.2.

[41]  See, for example, Exhibit 4.5.

[42]  Exhibit 4.8.

[43]  Those above the 21-metre contour on Exhibit 4.8 and the trees numbered 1 to 19 and 22 to 24 on Exhibit 4.12.

[44]  See Exhibit 4.8 and the tree numbered 50 on Exhibit 4.12.

[45]  See the trees numbered 20 to 21, 25 to 38, 40 to 49, 56 to 59, 67 to 82, 84 to 90, and 110 to 119 on Exhibit 4.12.

[46]  Exhibit 3.4 p 14 [4.5].

[47]  See Exhibit 4.10 and the trees numbered 49, 51 to 55, 60 to 66, and 91 to 109 on Exhibit 4.12.

[48]  Exhibit 3.4 p 14 [4.5] and [4.6].

[49]  Exhibit 3.4 p 14 [4.5] to [4.7].

[50]  City Plan s 7.2.8.2.2 3.c. is an overall outcome for the whole neighbourhood plan area that requires that “development south of the Cleveland railway line” maintain the “rural and low density residential character of the area”.  City Plan s 7.2.8.2.2 4.b is an overall outcome for the Hemmant and Tingalpa Road precinct that requires development in the Rural residential zone to maintain the rural residential character “of the locality”.

[51]  Exhibit 3.4 pp 16-7 [6.6] and p 23 [7.4] and [7.5].

[52]  Exhibit 3.4 p 23 [7.4] and [7.5].

[53]  Exhibit 4.2 and Exhibit 4.13.

[54]  Exhibit 3.4 p 6 [3.2].

[55]  Exhibit 3.1 p 42.

[56]  Exhibit 3.1 p 6 [12].

[57]  Exhibit 4.1.

[58]  A collector street is a higher order street in the road network.

[59]  Exhibit 4.2.

[60]  Exhibit 4.1 and Exhibit 4.13.

[61]  Exhibit 4.1 and Exhibit 4.13.

[62]  Exhibit 4.13.

[63]  Exhibit 3.4 p 12 [3.9].

[64]  Exhibit 3.4 p 10 [3.7].

[65]  Exhibit 3.4 p 10 [3.7].

[66]  Exhibit 3.4 p 9 [3.6].

[67]  See, for example, Exhibit 3.4 pp 11-2 and Exhibit 4.2.

[68]  Exhibit 3.4 p 12 [3.10] and p 23 [7.1].

[69]  Exhibit 7.10 and Exhibit 7.11.

[70]  Exhibit 3.4 p 23 [7.2].

[71]  Exhibit 3.4 p 19 [6.18].

[72]  Exhibit 3.4 p 16 [6.2].

[73]  Exhibit 4.8.

[74]  Exhibit 3.4 pp 12-3 [3.10] and [3.11].

[75]  Exhibit 3.4 p 12 [3.10].

[76]  Exhibit 3.4 pp 23-4 [8.1] and [8.2].

[77]  Exhibit 3.5 p 5 [4.1].

[78]  Exhibit 3.4 p 23 [7.3].

[79]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 14 September 2021) 32.

[80]  See ss 7.2.8.2.2 3.c. and 4.b. of the Hemmant-Lytton neighbourhood plan code and performance outcome PO25 of the Subdivision code.

[81]  Exhibit 3.4 p 17 [6.9] and [6.10].

[82]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 14 September 2021) 56.

[83]  Exhibit 3.4 p 18 [6.13], [6.14] and [6.16].

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

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

[86]  Exhibit 3.4 pp 18-9 [6.15], [6.16] and [6.19] and pp 21-2 figures 11 to 14.

[87]  Exhibit 3.4 p 19 [6.19].

[88]  Exhibit 3.4 p 24 [8.4] and Exhibit 3.19 p 2 [5].

[89]  Exhibit 3.5 pp 3-4 [3.7] and [3.10] to [3.12].

[90]  Exhibit 4.2 and Exhibit 3.19 p 7.

[91]  Exhibit 3.4 p 11.

[92]  Exhibit 3.4 p 19 [6.19].

[93]  They opposed reconfiguration to create 24 lots, as that is what was sought at the time when the development application was publicly notified.

[94]  Exhibit 3.5 p 3 [3.6].

[95]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 14 September 2021) 41.

[96]  Exhibit 3.19.

[97]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 14 September 2021) 33-7, 41-2, 45-6, 49, 57-8.

[98]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 14 September 2021) 33-7.

[99]  Exhibit 3.4 p 19 [6.20].

[100]  Exhibit 3.19 p 3 [11].

[101]  Exhibit 3.4 p 13 [3.10].

[102]  Exhibit 3.5 p 3 [3.8].

[103]  Exhibit 3.1 p 27 [130].

[104]  City Plan s 8.1 1.

[105]  Exhibit 5.1 p 2 [2.c.].

[106]  City Plan Table 5.10.13.

[107]  See the definition of “sensitive use” in Schedule 1 of City Plan.

[108]  City Plan ss 5.3.2 5 and 8.1 6.

[109]  The subject land is also in the Biodiversity areas overlay.  There is no suggestion of non-compliance with the Biodiversity areas overlay code.

[110]  Exhibit 3.11 p 3 [8] to [11] and p 5 [21] to [23]; Exhibit 3.13 p 8 [32].

[111]  Exhibit 3.11 p 3 [12] to [14] and p 5 [21] to [23]; Exhibit 3.13 p 8 [33].

[112]  Exhibit 3.11 p 3 [13].

[113]  Exhibit 3.11 p 4 [15]; Exhibit 3.

[114]  Exhibit 3.13 p 8 [34].

[115]  Exhibit 3.11 p 5 [21] and [22]; Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 26-7 and 35.

[116]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 28.

[117]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 34.

[118]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 32-4.

[119]  See, for example, Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 4-7.  See also Exhibit 3.10 and 3.13.

[120]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 7-9.

[121]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 48-9.

[122]  Exhibit 3.1 p 6 [14] and pp 10-2 [38]-[43].

[123]  Outline of Submissions on behalf of the Respondent p 21 [90(b)] and Further Submissions on behalf of the Respondent p 1 [1].

[124]  Exhibit 3.11 p 6 [24] and Exhibit 3.12 p 3 [16].

[125]  Exhibit 3.12 p 3 [10].

[126]  Exhibit 3.12 p 3 [11] to [13].

[127]  This is persuasively demonstrated by the Written Submissions on behalf of the Appellant and the Supplementary Written Submissions on behalf of the Appellant prepared by Mr Holt QC. 

[128]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 49.

[129]  Exhibit 4.15 and Exhibit 3.11 p 2 [5].

[130]  See City Plan ss 5.3.2 5 and 8.1 6 and paragraph [118] above. 

[131]  See also paragraphs [116] to [118] above.

[132]  Written Submissions on behalf of the Appellant p 17 [83].

[133]  City Plan s 6.2.5.2 6 - Exhibit 5.1 p 142; Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 35.

[134]  Exhibit 7.13 p 3 – Industry code performance outcome PO2; Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 12.

[135]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 48-9.

[136]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 49.

[137]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 53.

[138]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 40.

[139]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 41.

[140]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 42.

[141]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 39.

[142]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 27 October 2021) 39.

[143]  Exhibit 3.13 p 8 [34] to [35].

[144]  [1990] QPLR 209.

[145]  [2010] QPEC 132; (2010) 180 LGERA 226.

[146]  [1990] QPLR 209.

[147] Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council [1990] QPLR 209, 211.

[148]  [2010] QPEC 132; (2010) 180 LGERA 226.

[149] Glenella Estates Pty Ltd v Mackay Regional Council & Ors [2010] QPEC 132; (2010) 180 LGERA 226, 253 [41].

[150]  City Plan ss 1.1(3) and (5).

[151]  [1990] QPLR 209.

[152]  [2010] QPEC 132; (2010) 180 LGERA 226.

[153] Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 54; [2018] QPELR 265, 295-6 [125]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42, [49].

[154]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 11.

[155]  Exhibit 2.3.

[156]  Transcript of Proceedings, G R Construction & Development Pty Ltd v Brisbane City Council (Planning and Environment Court of Queensland, 3900/19, Kefford DCJ, 16 September 2021) 9-10.

[157]  Exhibit 3.1 p 26 [118]. 

[158]  Exhibit 3.1 pp 26-7 [123]-[127].

[159]  Exhibit 3.1 p 31 [156]-[157].

[160]  Exhibit 3.1 p 32 [159]. 

[161]  [2021] QPEC 13.

[162]  By this I mean a development identified by reference to the combination of all its design attributes.

[163]  (1985) 41 SASR 188; (1985) 60 LGRA 1.

[164] District Council of Munno Para v Remove-All-Rubbish Co Pty Ltd (1985) 41 SASR 188, 201.

[165]  [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

[166]  [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[167] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 [20].

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

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

[170]  Exhibit 3.9 p 64 [115.xi.].

[171]  Exhibit 3.9 p 63 [115.i.] and p 64 [116.i.].

[172]  Exhibit 3.9 p 26 [62].

[173]  Exhibit 3.9 p 27 [68].

[174]  Exhibit 3.9 p 26 [62].

[175]  Exhibit 3.9 p 63 [115.ii.].

[176]  Exhibit 3.9 p 21 [52] and [53] and pp 23-4.

[177]  Exhibit 3.9 p 63 [115.ii.].

[178]  Exhibit 3.9 p 63 [115.iv.].

[179]  Exhibit 3.9 p 64 [115.xiii.].

[180]  Exhibit 3.9 p 63 [115.vii.].

[181]  Exhibit 3.9 p 65 [118].

[182]  Exhibit 3.9 p 65 [116.ii.].

[183]  Exhibit 3.9 p 65 [116.iii.].

[184]  Exhibit 3.9 p 65 [116.iv.].

[185]  Exhibit 3.9 p 12 [33] and p 65 [116.v.].

[186]  Exhibit 3.9 p 65 [116.vi.].

[187]  I do not accept the evidence of Mr Duane that that the proposed development will meet market demand at an affordable price for the reasons provided in paragraph [206] above.

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

[189]  [2020] QCA 257.

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

[191]  [2020] QCA 257.

[192] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [42] and [54] (emphasis added).

[193]  Outline of Submissions on behalf of the Respondent pp 28-9 [116] to [122].

[194]  See paragraphs [29] to [40] above.

[195]  [2021] QPEC 13, [86]-[87].

[196] Magree & Ors v Landsborough Shire Council & Anor [1987] QPLR 149, 153.

[197] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; [2019] QPELR 793, 810 [67].

[198]  See paragraph [181] above.

[199] 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].

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Editorial Notes

  • Published Case Name:

    G R Construction & Development Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    G R Construction & Development Pty Ltd v Brisbane City Council

  • MNC:

    [2022] QPEC 9

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    23 Mar 2022

Appeal Status

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