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Jezreel Pty Ltd v Brisbane City Council[2023] QPEC 7

Jezreel Pty Ltd v Brisbane City Council[2023] QPEC 7

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Jezreel Pty Ltd & Anor v Brisbane City Council & Anor [2023] QPEC 7

PARTIES:

JEZREEL PTY LTD (ACN 010 455 973)

(First Appellant)

and

MATTHEW SORBELLO

(Second Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

GRIFFITH CAPITAL PTY LTD (ACN 637 242 392) AND SUPADEED PTY LTD (ACN 608 395 320)

(Co-respondents)

FILE NO/S:

2067 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

27 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 to 29 June and 1 July 2022, and 13 and 16 March 2023 and further submissions received on 17 and 20 March 2023

JUDGE:

Kefford DCJ

ORDER:

The appeal is adjourned for further review on 12 April 2023.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where the Co-Respondents made a development application seeking a development permit for a material change of use – where the development application is for redevelopment of subject land at the intersection of Merthyr Road and Brunswick Street – where the proposed development is for centre activities comprising a childcare centre, food and drink outlet, office and shops – whether the height, bulk, scale and form of the proposed development is appropriate – whether the proposed development appropriately transitions to land in a lower density zone – whether there is an acceptable interface – whether the proposed development reflects New Farm’s character and style – whether the proposed landscaping outcome is appropriate for a childcare centre – whether the proposed development will result in adverse carparking impacts – whether there is a need for childcare facilities – whether the proposed re-use of the subject land for uses that accord with the planning intentions support approval – whether the subject land is well-suited for the proposed development

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; [2021] QPELR 1003, applied

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

Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 325, approved

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

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

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited

K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, approved

Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 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

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

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited

Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, approved

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39, approved

Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, cited

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

COUNSEL:

K Wylie for the First and Second Appellant

K Buckley for the Respondent

M Batty and R Yuen for the Co-Respondents

SOLICITORS:

Bennett & Philp Lawyers for the First and Second Appellant

City Legal for the Respondent

Connor O'Meara for the Co-Respondents

TABLE OF CONTENTS

Introduction5

What is the applicable framework for the decision?5

What are the real issues that require determination?6

Is the height, bulk, scale, and form of the proposed development appropriate?7

What do the relevant assessment benchmarks require?8

What are the features of the subject land?13

What are the features of the locality and its character?14

What is the design and appearance of the proposed development?20

Does the height of the proposed development, when considered with its setback, sensitively transition to the adjoining lower density zone?24

Does the height of the proposed development complement, and provide a height similar to, the surrounding residential area?26

Is the height of the proposed development consistent with the amenity and character and community expectations intended for the Mixed use centre precinct and the subject land?30

Is the proposed development of a human scale?36

Does the proposed development reflect the pedestrian nature and scale of the locality?39

Will the height, scale and built form create a consistent and cohesive streetscape and built form character?40

Will the proposed development respect, contribute to, and reflect the existing heritage, character, grain, style, and sense of place of New Farm?42

Will the proposed development retain an appropriate visual relationship with the adjoining residential precincts?47

Is the size and bulk of the proposed development consistent with the existing small-scale development and does it reflect the scale of the locality?48

Is the proposed development sited to enable existing and future buildings to be well separated from each other?52

Will the proposed development avoid adverse amenity impact to adjoining development and improve the amenity of the New Farm and Teneriffe Hill neighbourhood plan area?56

Is the proposed development, and its uses, small-scale?57

Conclusion about whether the proposed development has an appropriate height, bulk, scale, and form60

Is the proposed landscaping outcome appropriate for a childcare centre?60

Will the proposed development result in adverse carparking impacts?63

Does the proposed development meet the design peak parking demand?67

Is there an unacceptable impact occasioned by a failure to meet the design peak parking demand on the subject land?73

Conclusion about the car parking impact of the proposed development74

Are the additional matters on which the parties rely “relevant matters” under s 45(5)(b) of the Planning Act 2016?74

Are the proposed uses appropriate?75

Will the proposed development provide for the redevelopment of an underutilised site on a prominent corner in New Farm?76

Is the proposed development well-located?76

Does the historical use of the subject land lend support to approval?76

Is there a need for the proposed development?77

Is there a need for the proposed childcare centre?78

Is there a need for the proposed development in its entirety?83

What is the significance of the need to the exercise of the discretion?86

Should the development application be approved in the exercise of the planning discretion?89

Conclusion90

Introduction

  1. [1]
    At New Farm, there is a mixed-use centre focussed on the intersection of Merthyr Road and Brunswick Street.  Within it, at 84 Merthyr Road (“the subject land”), lies a disused single-level building.  Although the building has lain dormant for a considerable period, it previously housed four retail and commercial tenants.    
  1. [2]
    The Co-respondents, Griffith Capital Pty Ltd and Supadeed Pty Ltd, want to develop the subject land for centre activities comprising a childcare centre, food and drink outlet, office, and shop uses.  The uses are proposed to be conducted from a new four-storey building on the subject land.  The food and drink outlet, office, and shop are proposed to occupy the ground floor.  A childcare centre with 121 places is proposed for the second, third and fourth floors.  Two basement levels are to provide 37 car parking spaces.
  1. [3]
    The Co-respondents made a development application seeking a development permit for a material change of use to facilitate the redevelopment of the subject land.  On 12 July 2021, Brisbane City Council (“the Council”) approved the development application. 
  2. [4]
    The Appellants, Jezreel Pty Ltd and Matthew Sorbello, have appealed against the Council’s decision.  They say that the proposed building is too tall and too bulky; there is not an appropriate relationship between the proposed building and nearby buildings; the proposed commercial and retail ground floor tenancies are too large; and the proposed development would result in adverse carparking impacts.  The Co-respondents and the Council dispute those contentions.
  3. [5]
    The ultimate issue for determination is whether, in the exercise of the planning discretion, the development application for the proposed development should be approved.

What is the applicable framework for the decision?

  1. [6]
    The appeal generally[1] proceeds as a hearing anew.[2]  The Co-respondents bear the onus of establishing that the appeal should be dismissed.[3] 
  2. [7]
    The Court has a broad discretion in determining the appeal.  It has power to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the entity that made the decision with directions the Court considers appropriate.[4] 
  3. [8]
    The Court’s broad discretion should be exercised judicially, and subject to the limitations in the relevant statutes.[5]  The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provides relevant guidance in that respect.
  4. [9]
    As the development application required impact assessment, the exercise of the discretion must be based on an assessment that:[6]
    1. (a)
      must be carried out:
    1. against the assessment benchmarks in Brisbane City Plan 2014 (“City Plan”)[7] to the extent that they are relevant;
    2. having regard to, relevantly:
    1. any development approval for, and any lawful use of, the premises and adjacent premises; and
    2. the common material, including properly made submissions about the development application;[8] and
    1. (b)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
  5. [10]
    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,[9] Abeleda & Anor v Brisbane City Council & Anor,[10] Wilhelm v Logan City Council & Ors[11] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[12]  Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[13]  That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[14]

What are the real issues that require determination?

  1. [11]
    As the development application was impact assessable, s 5.3.3 of City Plan requires the development application to be assessed against the whole planning scheme, to the extent relevant.  Under City Plan, the relevance of many of the assessment benchmarks is informed by the zone and the neighbourhood plan area in which the subject land is located, as well as the nature of the proposed development. 
  2. [12]
    Although there are a multitude of assessment benchmarks that are relevant to the proposed development, the determination of the ultimate issue in this case only calls for consideration of those assessment benchmarks that are put in issue by the parties.  In accordance with the usual practice of the Court,[15] an agreed list of issues was tendered by the parties identifying the focus of their dispute.[16]  As is apparent from that document, only a select number of the assessment benchmarks have been put in issue. 
  3. [13]
    Having regard to those aspects of the relevant assessment benchmarks placed in issue, and the Further Amended Agreed List of Issues, it is evident that the real issues that require determination can be summarised as follows:
  1. Is the height, bulk, scale, and form of the proposed development appropriate?
  2. Is the proposed landscaping outcome appropriate for a childcare centre?
  3. Will the proposed development result in adverse carparking impacts?
  4. Are the additional matters on which the parties rely “relevant matters” under s 45(5)(b) of the Planning Act 2016?
  5. Are the proposed uses appropriate?
  6. Will the proposed development provide for the redevelopment of an underutilised site on a prominent corner in New Farm?
  7. Is the proposed development well-located?
  8. Does the historical use of the subject land lend support to approval?
  9. Is there a need for the proposed development?
  10. Should the development application be approved in the exercise of the planning discretion?

Is the height, bulk, scale, and form of the proposed development appropriate?

  1. [14]
    The Appellants contend that the proposed development has excessive height, bulk and scale when considered in the context of the lower-intensity commercial development in the Mixed use centre precinct that adjoins the intersection of Brunswick Road and Merthyr Road and the lower-intensity residential development in the Low-medium density living precinct on Merthyr Road.  They also contend that the proposed development exhibits an inappropriate relationship to the existing built form in the locality. 
  2. [15]
    The Appellants allege that the inappropriate height, bulk, scale, and form of the proposed development is non-compliant with:
    1. (a)
      the overall outcomes in ss 6.2.2.3 5.b. and c. and 6.a. and c. of the District centre zone code; and
    2. (b)
      the overall outcomes in ss 7.2.14.1.2 3.b., f., m. and 7.b. and performance outcomes PO1, PO12, PO13 and PO18 of the New Farm and Teneriffe Hill neighbourhood plan code.
  3. [16]
    It is uncontentious that each of the provisions to which the Appellants refer is a relevant assessment benchmark.  This is unsurprising given:
    1. (a)
      the subject land is in the District zone precinct of the District centre zone[17] and the assessment benchmarks in the District centre zone code apply to all development in that zone;[18] and
    2. (b)
      the subject land is in the Brunswick Street and Merthyr Road sub-precinct (NPP-004b) of the Mixed use centre precinct (NPP-004) of the New Farm and Teneriffe Hill neighbourhood plan area[19] and the New Farm and Teneriffe Hill neighbourhood plan applies to the New Farm and Teneriffe Hill neighbourhood plan area.[20]

What do the relevant assessment benchmarks require?

  1. [17]
    As I have mentioned above, the relevant assessment benchmarks about building design to be considered in this appeal are limited to those that the Appellants continue to put in issue,[21] namely:
    1. (a)
      the overall outcomes in ss 6.2.2.3 5.b. and c. and 6.a. and c. of the District centre zone code; and
    2. (b)
      the overall outcomes in ss 7.2.14.1.2 3.b., f., m. and 7.b. and performance outcomes PO1, PO12, PO13 and PO18 of the New Farm and Teneriffe Hill neighbourhood plan code.
  2. [18]
    The purpose of the District centre zone is to provide for a large variety of uses and activities to service a district of the local government area, including, for example, administrative, business, community, cultural, entertainment, professional, residential or retail uses or activities.[22]  That purpose is to be achieved through the overall outcomes in the District centre zone code, which include overall outcomes about development form and overall outcomes for the District zone precinct.  The overall outcomes that are in issue state:

“5. Development form overall outcomes are:

b. Development incorporates a height and setback that sensitively transitions to adjoining lower density zones or zone precincts.

c. Development provides a built form that creates a consistent and cohesive streetscape and continuous pedestrian connections and shelter.

  1. District zone precinct overall outcomes are:

a. Development ensures an intensity and form that maintains a human scale, respects existing heritage, character and grain and is of a height that complements surrounding residential areas.

c. Development provides for a medium rise built form of a height similar to surrounding residential areas.”

(emphasis reflects the Appellants’ allegations)[23]

  1. [19]
    The purpose of the New Farm and Teneriffe Hill neighbourhood plan code is to provide finer grained planning at a local level for the New Farm and Teneriffe Hill neighbourhood plan area.  The purpose is to be achieved through the overall outcomes.[24]  They include overall outcomes that apply generally to the neighbourhood plan area, as well as others that relate to the Mixed use centre precinct.  Those in issue relevantly state:

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

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

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

m. Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.

  1. Mixed use centre precinct (New Farm and Teneriffe Hill neighbourhood plan/NP-OO4) overall outcomes are:

b. Proposals include small-scale uses with limited tenancy sizes while providing a variety of tenancy types.

(emphasis reflects the Appellants’ allegations)[25]

  1. [20]
    The Appellants further contend that the proposed development is inconsistent with the following performance outcomes and associated acceptable outcomes contained in Table 7.2.14.1.3.A of the New Farm and Teneriffe Hill neighbourhood plan code:

Performance outcomes

Acceptable outcomes

General

PO1

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

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

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

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

AO1

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

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

If in the Mixed use centre precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-004)

PO12

Development reflects the pedestrian nature and scale of the locality and retains an appropriate visual relationship with adjoining residential precincts.

AO12

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

PO13

Development and building size and bulk is consistent with existing small-scale development, sensitive to the surrounding residential environment and exhibits a positive relationship with the street.

AO13.1

Development has a maximum gross floor area of:

  1. a.
    80% of the site area, or the gross floor area of the existing building, whichever is the greater; or
  2. b.
    the area of the site where the additional gross floor area is for affordable housing.

AO13.2

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

PO18

Development is of a small scale and provides a diverse range of services.

Note—Alternative tenancy sizes to that prescribed are appropriate where a new facility serving a local community need requires a larger space.

AO18

Development with single tenancies are a maximum of:

  1. a.
    80m2 for offices and shops at ground level;
  2. b.
    150m2 for offices above ground level;
  3. c.
    150m2 for food and drink outlets where a restaurant.

(emphasis reflects the Appellants’ allegations)[26]

  1. [21]
    The Appellants do not allege non-compliance with subparagraphs (a) and (c) of performance outcome PO1.[27]
  1. [22]
    The Appellants’ allegations call for the following factual determinations about the design of the proposed development, namely:
  1. Does the height of the proposed development, when considered with its setback, sensitively transition to the adjoining lower density zone?
  2. Does the height of the proposed development complement, and provide a height similar to, the surrounding residential area?
  3. Is the height of the proposed development consistent with the amenity and character and community expectations intended for the Mixed use centre precinct and the subject land?
  1. Is the proposed development of a human scale?
  2. Does the proposed development reflect the pedestrian nature and scale of the locality?
  3. Will the height, scale and built form create a consistent and cohesive streetscape and built form character?
  4. Will the proposed development respect, contribute to, and reflect the existing heritage, character, grain, style, and sense of place of New Farm?
  5. Will the proposed development retain an appropriate visual relationship with the adjoining residential precincts?
  6. Is the size and bulk of the proposed development consistent with the existing small-scale development and does it reflect the scale of the locality?
  7. Is the proposed development sited to enable existing and future buildings to be well separated from each other?
  8. Will the proposed development avoid adverse amenity impact to adjoining development and improve the amenity of the New Farm and Teneriffe Hill neighbourhood plan area?
  9. Is the proposed development, and its uses, small-scale?
  1. [23]
    To answer these questions, it is necessary to understand:
    1. (a)
      the features of the subject land;
    2. (b)
      the features of the locality and its character; and
    3. (c)
      the design of the proposed development and how its built form parameters and design informs its appearance. 
  2. [24]
    It assists to consider those matters before turning to the assessment against the assessment benchmarks.
  3. [25]
    Before doing so, it is useful to make two general observations. 
  4. [26]
    First, to assist me with the assessment of the proposed development against the applicable assessment benchmarks, including the determination of the issues to which I refer in paragraphs [22] and [23] above, I had the benefit of, amongst other evidence:
    1. (a)
      the plans of the proposed development,[28] which depict, amongst other things, design details of the proposed building, including the height, setback and extent of site cover of the floorplates for the various levels of the building, and building elevations and sections;
    2. (b)
      a landscape design;[29]
    3. (c)
      the properly made submissions with respect to the proposed development;[30]
    4. (d)
      photographs of other buildings in the local area and of the streetscape;[31]
    5. (e)
      expert evidence with respect to architecture given by Mr Olsson and Mr Curtis, the architects retained by the Co-respondents and the Appellants respectively;[32]
    6. (f)
      expert evidence with respect to visual amenity impacts given by Mr Powell, Dr McGowan and Mr Curtis, the visual amenity experts retained by the Co-respondents, the Council, and the Appellants respectively;[33] and
    7. (g)
      expert evidence with respect to town planning given by Mr Buckley, Mr Buhmann and Mr Schomburgk, the town planners retained by the Co-respondents, the Council, and the Appellants respectively.[34]
  5. [27]
    Second, the determination of the issues to which I refer in paragraphs [22] and [23] above calls for value laden judgments about which reasonable minds may differ.  In general, although I respect the views of Mr Curtis and Mr Schomburgk, I do not accept their evidence to the extent that it differs from that of the other experts.  I prefer the evidence of Mr Olsson, Mr Powell, Dr McGowan, Mr Buckley, and Mr Buhmann, whose evidence is more closely aligned with, and supported by, the other evidence that I accept.  That other evidence includes the photographs that show the appearance of the area and the plans that show the design attributes of the proposed development. 

What are the features of the subject land?

  1. [28]
    The subject land is located on an 840 square metre lot on the western corner of the intersection of Brunswick Street and Merthyr Road.[35]  It is currently improved by a disused, single-level building that is built to the street alignment on Brunswick Street but setback from Merthyr Road to create a widened footpath along that frontage.  The building has an area of about 700 square metres and previously housed food outlets and shops.[36]  The existing building covers almost the entire area of the subject land, leaving no space for off-street parking.  At the end of a driveway off Merthyr Road, there is a constrained space that is used for a service vehicle set-down area and refuse bins.[37] 
  2. [29]
    The subject land has frontage of approximately 32 metres to Brunswick Street and approximately 26 metres to Merthyr Road.  Both Brunswick Street and Merthyr Road are relatively busy streets through the local area.  Brunswick Street is the main north-south route extending through New Farm, and Merthyr Road is one of the main east-west routes.[38]  Regulated on-street parking exists on the Brunswick Street frontage of the subject land.  Merthyr Road has no parking across the frontage of the subject land.[39]
  3. [30]
    The topography of the subject land slopes gently from a high point along the north-western boundary of 5.6 metres Australian Height Datum to a low point along the south-eastern boundary of 4.4 metres Australian Height Datum.[40]  The subject land presents as level to the Merthyr Road frontage.  It slopes upwards from the intersection of Merthyr Road and Brunswick Street, rising about 1.5 metres along the length of the Brunswick Street frontage.[41]

What are the features of the locality and its character?

  1. [31]
    The intersection of Brunswick Street and Merthyr Road is a focal point within the urban fabric.[42]  The combined open space of the intersecting streets provides a high degree of visibility of the built form located along the frontages on each corner of the intersection.  It allows the separate elements of built form to be viewed in relation to each other.[43] 
  2. [32]
    The existing buildings on the corners of the intersection do not exceed two-storeys in height.  They have shop fronts that are built to the street frontages and have awnings along their frontages that extend over the adjoining footpaths.  The two-storey buildings on the northern and eastern corners have visible pitched roofs, whereas the single storey buildings on the southern and western corners have roofs with minimal pitch, which pitch is concealed from view behind parapets.[44]
  3. [33]
    The two-storey buildings on the northern and eastern corners are more visually prominent due to their height and the visibility of their roof forms.  They make a significant contribution to the character of this part of New Farm by reason of their heritage appearance.  The single-storey buildings on the southern and western corners are less prominent.  Their appearances are primarily characterised by their awnings and shop fronts.[45]
  4. [34]
    The land uses in the buildings on the corners of the intersection consist of:
    1. (a)
      on the northern corner, a two-storey local character commercial building that is of local heritage significance, which contains a prominent, long-standing pharmacy on the ground level;
    2. (b)
      on the eastern corner, a two-storey local character commercial building that has local heritage significance, and contains several retail tenancies on the ground level;
    3. (c)
      on the southern corner, a modern single-level commercial building; and
    4. (d)
      on the western corner, a disused, single-level retail building on the subject land.[46]
  1. [35]
    Mr Curtis opines that the visual conjunction of the built form reinforces the importance of the intersection as a visual node that contributes to the legibility of the settlement pattern and assists with cognitive mapping.[47]  He says that the built form on the corners, and the commercial nature of the uses contained therein, contributes to the intersection’s overall urban identity as a landmark within the settlement pattern of New Farm and is important to the sense of place of the locality.  In Mr Curtis’ view, the visibility of the built form on the corners accentuates the contribution each building makes to the local character.[48]  Mr Curtis also regards the intersection of Brunswick Street and Merthyr Road as a key activity focus within the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct in the New Farm and Teneriffe Hill neighbourhood plan area.  He says the intersection will be visited by many people.[49]
  2. [36]
    Moving from the intersection further along Brunswick Street to the northwest, the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct extend for a short distance of approximately 35 metres.  Further along the street, the land is in the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[50]
  3. [37]
    On the southwest side of Brunswick Street, extending from the subject land northwest to the intersection of Moreton Street, the existing streetscape is comprised of three and four-storey multiple dwellings.  The height and scale of these buildings creates a legible increase in the intensity of development to the northwest of the intersection beyond the subject land.[51]
  4. [38]
    On the opposite side of Brunswick Street, there is one and two-storey scale character style housing.  These houses include some commercial uses.  They adjoin the one and two-storey commercial development that extends from the northwest corner of the intersection.  Further to the northwest, to the corner of Villiers Street, the houses are adjoined by one and two-storey houses and multiple dwellings.  Most of those buildings feature pitched roofs and character-style appearance.[52]
  5. [39]
    Further northwest along Brunswick Street, past the intersection with Moreton Street, the character of the streetscape and the local area transitions to an even more intensive urban environment than that which is centred on the Brunswick Street and Merthyr Road intersection.[53]
  6. [40]
    Moving southeast along Brunswick Street, the land in the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct extends approximately 107 metres along the northern side of Brunswick Street to Welsby Street, and approximately 42 metres along the southern side of Brunswick Street.  The land is then located within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[54]
  7. [41]
    The existing built form to the southwest, extending along the northern side of Brunswick Street to the intersection of Welsby Street, is comprised of one, two and three-storey commercial buildings that are either built to the street frontage or proximate to it.  Two on-grade car parks extend from the frontage at 90-degrees.  They disrupt the continuity of the building edge to the street.[55]
  8. [42]
    Along the southern side of Brunswick Street, southeast of the intersection with Merthyr Road, the built form is comprised of one and two-storey commercial buildings that are either built to the street frontage or proximate to it.  Land within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area adjoins these buildings to the southwest.  That land is improved by buildings primarily comprised of one and two-storey houses and multiple dwellings.  Many of these existing buildings include pitched roofs and character style façade appearances.  However, there are a few notable exceptions, including the prominent four-storey, face-brick, flat-roofed multiple dwelling at 921 Brunswick Street.[56]
  9. [43]
    Mr Curtis opines that the development within the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct is more intense than the existing development to the southeast along Brunswick Street that is within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.  However, he says that the height and scale of the existing development is compatible with that which it adjoins.  He also says that there is a transition between the two areas that results in a cohesive streetscape character.  He considers the cohesive streetscape character to be integral to the identity of the locality.[57]
  1. [44]
    Beyond the intersection of Brunswick Street and Merthyr Road to the northeast, the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct extend for approximately 140 metres along the eastern side of Merthyr Road and for approximately 106 metres along the western side of Merthyr Road.  The land is then located within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[58]
  2. [45]
    The existing built form along the eastern side of Merthyr Road, extending to the intersection with Hickey Street, is primarily comprised of one and two-storey commercial buildings built to the street frontage.  There is also a three-storey mixed-use development. The streetscape is fragmented by the on-grade car parking on the eastern side of Merthyr Road.  Mr Curtis opines that this car parking provides a legible interval to the adjoining residential area.[59]
  3. [46]
    Further north along the eastern side of Merthyr Road, the adjoining residential area is primarily comprised of one and two-storey houses and multiple dwellings.  The built form is generally characterised by a consistent grain of lots and building widths.  The buildings feature weatherboard external cladding, verandas, and pitched roof forms.  However, the streetscape also includes some buildings that are differentiated by their three-storey height and masonry construction.[60]
  4. [47]
    Mr Curtis opines that there is compatibility in height and scale between the existing developments along this stretch of Merthyr Road.  He says that there is a transition between the two areas that results in a cohesive streetscape character that is integral to the identity of the locality.[61]
  5. [48]
    Beyond the intersection to the southwest along Merthyr Road, the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct terminate at the boundary of the subject land.  The land is then located within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[62]
  6. [49]
    Extending for approximately 130 metres south along Merthyr Road to the intersection with Lower Bowen Terrace and Bowen Terrace, the existing built form is primarily comprised of one to three-storey houses and multiple dwellings.  A few are utilised for commercial uses.  Most have articulated, human-scale appearances.  Several include character-style architectural elements, such as weatherboard cladding and verandas, and most have visible pitched roof forms.[63]
  7. [50]
    Mr Curtis opines that this existing streetscape to the southwest along Merthyr Road has a relatively cohesive appearance.  He opines that this is primarily due to the consistent lot and building widths and building separations, and the compatible height and scale of the built form.[64]  He says that the more intense development centred on the intersection of Merthyr Road and Brunswick Street is compatible with the height and scale of the development further to the south along Merthyr Road.  Mr Curtis says there is a transition between the two areas that results in a cohesive streetscape character, which he regards as integral to the identity of the locality.[65]
  8. [51]
    Mr Olsson opines that the intersection has less significance to the locality’s character and identity then that ascribed by Mr Curtis.  Mr Olsson explains that, in his opinion, the principal activity focus for pedestrians is further to the north along Merthyr Road, where pedestrian amenity is enhanced close to the arcade leading to New Farm Coles.  New Farm Coles is the retail anchor for the Merthyr Village Shopping Centre.  Mr Olsson notes that the subject land is on the southern edge of the District centre zone and on Brunswick Street, which is more heavily trafficked than Merthyr Road near New Farm Coles.  He opines that pedestrians are less likely to dwell in Brunswick Street than Merthyr Road.[66] 
  9. [52]
    Mr Olsson also opines that there is not a uniform visual context for each of the four corners of the Brunswick Street and Merthyr Road intersection.  He says that the subject land has three and four-storey buildings adjoining in Brunswick Street, whereas the corner buildings on the northern side of Brunswick Street have two-storey neighbours.  He explains that the visibility of the three and four-storey apartment buildings that extend from the subject land to the west is enhanced by the space around the intersection.  The photos show their prominence, which appears to be attributable, in part, to the ground level rise towards the west along Brunswick Street.  Further, in terms of intended character, Mr Olsson notes that the acceptable outcomes within the New Farm and Teneriffe Hill neighbourhood plan code foresee up to three storeys for these sites.[67] 
  10. [53]
    Mr Powell expresses similar opinions to that of Mr Olsson.  Mr Powell opines that, from a visual amenity or landscape character perspective, the intersection of Brunswick Street and Merthyr Road is not the principal focus of activity.  He explains that kerbside and laneway dining areas (where pedestrians can stop for longer periods to take in the surroundings) and large, off-street, car parking areas (where vehicle speed is reduced) are generally located away from the intersection.  So too is the primary host of activity, namely New Farm Coles.  Mr Powell opines that the character of the intersection is typified by conveyance of pedestrian and vehicular traffic through the intersection – not safe and attractive areas that invite pedestrians to stop for long periods and take in views of the subject land.[68] 
  11. [54]
    In addition, Mr Powell explains that the intersection effectively sits at the base of a hill.  He says the local topography has the effect of drawing the observer’s eye up the hill, to the northwest, towards some of the taller, and more elevated, built form that emerges along that uphill route.  He opines that the height and scale of the buildings to the northwest along Brunswick Street create a legible increase in the intensity of development to the northwest of the intersection.[69] 
  12. [55]
    Dr McGowan accepts that the intersection of Brunswick Street and Merthyr Road is a focal point that contributes to legibility of the locality.  He accepts that, because of the void created by the intersection, the built form on each corner of the intersection will be visually prominent.  He says that the existing buildings on each corner help to frame the focal point by being built to their front boundaries and incorporating awnings over the footpaths.  He accepts that the northern and eastern corners of the intersection contribute some visual interest and scale that enhances the memorability and legibility of the focal point.  However, in his view, the existing built form on the subject land and on the southern corner make little such contribution.  He says those buildings are less prominent.  He says that their appearance is primarily characterised by their awnings and shop fronts.  Dr McGowan opines that the intersection’s role as a focal point, and its contribution to the legibility of the area, is not dependent on the built form that surrounds the intersection, or on a consistency or uniformity of built-form scale or appearance.  Rather, in his view, the intersection is a focal point that contributes to legibility of the locality primarily because of the void that is created in the development fabric by the intersection of the major thoroughfares through New Farm.[70]
  13. [56]
    With respect to the surrounding context and the character of the local area, Dr McGowan agrees with the observations of Mr Olsson and Mr Powell about the variation in building height in the area.  He says that while one and two-storey buildings may be prominent through the local area, there are three and four-storey buildings to the west of the subject land in Brunswick Street, three-storey multiple dwellings along the southern side of Merthyr Road to the south of the subject land, and three and four-storey buildings on both sides of Brunswick Street east of Merthyr Road.  Most of the three-storey buildings have pitched roofs, which Dr McGowan says adds to the height and scale of the buildings.  Like Mr Powell, Dr McGowan also considers it relevant that the four-storey buildings to the west of the subject land sit at higher elevations than the subject land.[71]
  14. [57]
    Dr McGowan disagrees with Mr Curtis’ opinion that the existing streetscape to the southwest along Merthyr Road has a relatively cohesive appearance.  Dr McGowan says that the streetscape to the southwest includes one to three-storey buildings that are detached houses and multiple dwellings, some of which are on narrow lots while others (such as 1A Hazel Street, 498 Bowen Terrace, and 59 Merthyr Road) are oriented to present a wide frontage to Merthyr Road.  He notes that, despite being set behind large trees, the multiple dwelling at 59 Merthyr Road is obvious as a large two to three-storey building.  Dr McGowan says that the variation in built form continues along the length of Merthyr Road.  It includes the single-storey Merthyr Road Uniting Church, several three and four-storey multiple dwellings, a one to two-storey commercial complex at the corner of Merthyr Road and Moray Street, and a seven-storey multiple dwelling on the other corner of that intersection.  Dr McGowan opines that the streetscape of Brunswick Street to the northwest and southeast of the subject land is also varied.  He says that it is characterised by a greater frequency of multiple dwellings compared to detached houses.[72]
  15. [58]
    Mr Buckley also gave evidence about the existing character of the area.  He opines that there is not a single design or form of architecture predominating.  Mr Buckley says that a distinguishing feature of New Farm is its high concentrations of both traditional Queenslander vernacular designs and art deco designs set amongst modern and other ad-hoc styles.[73]
  16. [59]
    Mr Buhmann agrees with Mr Buckley as to the mixed nature of the built form within the centre and surrounding area.  He says that commercial uses are a mix of between one and three storeys in height with a variety of building forms and a lack of a coherent style.  He opines that the built form is a mix of older, character-style buildings infused with more contemporary brick buildings, some of which portray character elements with gables and pitched rooves.  In his view, the predominant form of the commercial centre is defined by the ground-level street activation, streetscape planting and associated pedestrian awning rather than by an identifiable building type or scale.[74]
  17. [60]
    I had the benefit of a site inspection to assist my understanding of the evidence.  Having regard to the many photographs of the area, I do not accept Mr Curtis’ opinions about the existing character of the area.  I accept the evidence of Mr Olsson, Mr Powell, Dr McGowan, Mr Buckley, and Mr Buhmann on this issue.  Their opinions about the existing character of the area and the streetscape, and the relative importance of the built form on the corners of the intersection of Brunswick Street and Merthyr Road to that character, accord with the many photographs of the area in evidence before me.

What is the design and appearance of the proposed development?

  1. [61]
    The existing building on the subject land is to be demolished and replaced with a four-storey building that has a height of 14.6 metres to the top of the roof over level 3, 15.8 metres to the top of the lift overrun, and 17.51 metres to the top of a screened plant deck.  It has horizontal dimensions of 32.75 metres and 25.82 metres.[75]  In addition to the four storeys above ground, the building has two basement levels of carparking.  The basement is to be accessed from a driveway off Brunswick Street.  The site cover is close to 100 per cent of the area of the subject land.[76]
  2. [62]
    The proposed development will accommodate:
    1. (a)
      two commercial tenancies with a combined gross floor area of 410 square metres at ground level, and a small plaza space at the north-eastern corner of the subject land; and
    2. (b)
      a childcare centre at levels 1 to 3 that has a combined gross floor area of 903 square metres, and which provides large outdoor play areas that occupy most of each level and are enclosed by a mix of glass balustrades, open steel balustrades, and solid walls to a height of 1.8 metres.[77]
  1. [63]
    The proposed development will, for the most part, be built to all boundaries at ground level and at level 1.  On level 2, the proposed development has setbacks between zero and 6.15 metres from the northern boundary, between zero and 7.33 metres from the eastern boundary, between 0.8 and 3.05 metres from the southern boundary, and between zero and 1.05 metres from the western boundary.  At level 3, the proposed development is setback between 0.6 and 6.15 metres from the northern boundary, between 3.25 and 7.33 metres from the eastern boundary, between 3.0 and 7.33 metres from the southern boundary, and between 1.55 and 11.85 metres from the western boundary.[78]  The floor plates have a stepped horizontal alignment at the subject land’s western corner to the intersection of Brunswick Street and Merthyr Road to accommodate the segmented corner truncation.[79]
  2. [64]
    Although the proposed development will, for the most part, be built to all boundaries at ground level and at level 1, there are recesses accommodating planter boxes at both levels.  The ground storey built-to-boundary walls along the Brunswick Street frontage (or northern elevation) are full-height, fixed-glass walls with a glazed entry door.  Along the Merthyr Road frontage (or the eastern elevation), the walls are a combination of fixed glass and operable sliding glazing.
  3. [65]
    An awning extends around the perimeter of the frontages just below the second storey.  It terminates towards the northwest end of the Brunswick Street frontage to provide clearance for the vehicle access driveway.  The driveway is located adjacent to the northwest boundary, at the high point of the subject land.[80]
  1. [66]
    The length of the built form’s facade at ground level along Brunswick Street, including the stepped truncation on the corner to Merthyr Road, will be 32.75 metres.  Above the awning, the second and third storeys will have a continuous wall length alignment of approximately 25 metres before setting back in steps to accommodate the corner truncation.[81]  The Brunswick Street façade at the second and third storeys will be articulated by the fixed glazing at the northwest end of the façade and the two central openings.  Two other openings are located within the setback at the corner truncation.  The façade will be primarily clad with chamferboards.[82]
  2. [67]
    The Merthyr Road façade has a similar design approach to the Brunswick Street façade.  The building’s overall length at the ground and second storeys along Merthyr Road will be 25.82 metres, including the stepped truncation on the corner to Brunswick Street.  The façade will also include two central openings at the second and third storeys with two other openings within the setback at the corner truncation.[83]  At the southwest end of the façade, the third storey is setback 3.25 metres from the Merthyr Road frontage to accommodate a planter box.  It is setback between approximately 3 and 6.18 metres from the southern boundary.[84]  The Merthyr Road façade will also be primarily clad with chamferboards, with the stepped southwest end having a tile finish.[85]  The fourth storey will be setback between approximately 3.25 and 4.5 metres from the Merthyr Road frontage, and between 0.6 and 3.35 metres from the Brunswick Street frontage.  The stepped corner truncation increases the setbacks to 7.33 and 6.15 metres respectively.  The external walls of the fourth storey will be primarily finished with rendered blockwork, and will have several, small, fixed windows.  A mechanical plant area will be located on the roof of the fourth storey. [86] 
  3. [68]
    To the south, the ground storey and second storey walls are built to the side boundary, where the proposed development adjoins a character house that contains a commercial use.  To the west, the ground, second and third-storey walls are built to the common side boundary with the neighbouring multiple dwelling.  For the most part, both walls are solid, but they have some cut-out openings.  The west facing wall includes a planter box and tiled areas.[87]
  4. [69]
    The three-storey-high walls that adjoin the Brunswick Street and Merthyr Road frontages will be about the same height as the neighbouring, four-storey multiple dwelling to the northwest.  That building is setback about six metres from the Brunswick Street frontage and has a frontage width of approximately 11.5 metres.  The proposed development will have a zero setback to the street frontage and significantly greater frontage width to both Brunswick Street and Merthyr Road.[88]
  5. [70]
    The proposed development will be separated from the multiple dwelling at 835 Brunswick Street by 9.6 metres (measured to balconies) and 11.0 metres (measured to the wall).  It will be separated from the two-storey building at 78 Merthyr Road by three metres but has a greater extent of separation from the adjoining three-storey multiple dwelling building at 78b Merthyr Road.[89]
  6. [71]
    The proposed development includes in-ground shrubs between the driveway and the western boundary.  It retains existing street trees and palms and proposes a new street tree along Brunswick Street frontage.  The proposed development provides containerised planting at ground level in front of the commercial tenancies, and at all other levels.  Awnings above the footpaths are provided along both frontages.[90]
  7. [72]
    The height and the other built-form metrics set out above confirm that the proposed development cannot demonstrate compliance with the assessment benchmarks in City Plan by showing it conforms to the acceptable outcomes.  Rather, to determine if there is compliance, it is necessary to make the value-laden judgments that are called for by the performance outcomes and overall outcomes. 
  8. [73]
    In making the required value-laden judgments, the proposed development’s empirical height in metres is of less significance than its visual presentation in storeys.  This is because it is unlikely that members of the community would appreciate the height of a building in metres as they walk or drive through the neighbourhood.  The mere recitation of the other built-form metrics also does little to convey the appearance of the building and its consistency with the character of the area.  That is the real issue to be considered in this case.  Turning then to the evidence about the appearance of the proposed development.
  9. [74]
    Mr Curtis describes the appearance of the Brunswick Street and Merthyr Road façades as characterised by the modulated geometry of the building envelope’s appearance.  He opines that the appearance has a robust, fortress-like quality that is highlighted by the zero frontage setbacks and high visibility afforded by the prominent corner location.  He says that the very limited articulation of the south and west walls results in an austere and robust geometrical presentation that accentuates the visual bulk of the proposed development’s appearance and contributes to its fortress-like character.[91]
  10. [75]
    Mr Olsson disagrees with Mr Curtis’ description of the appearance of the proposed development.  Mr Olsson says that the building has an almost equal balance between walls and voids due to the extensive areas of outdoor play space incorporated towards the street frontages on levels 1, 2 and 3.  He says those outdoor play space areas have balustrades and planter boxes that create small-scale detail in the elevations.  Mr Olsson disagrees with Mr Curtis’ characterisation of the proposed development as being fortress-like.  He says the solid vertical planes are lightweight chamferboard.  Mr Olsson says that the lapped joints in these boards create shadow and small-scale detail, breaking down the overall form.  He says that the landscaping that is visible from the street further lightens and softens the architectural character.  In Mr Olsson’s opinion, the street awning also breaks down the scale of the building to a pedestrian-scale.  He says the awning and the highly modulated built form, setbacks, materials, details, and landscape create a human scale in the building.[92]  Mr Olsson describes the architecture as contemporary.  It is comprised of wide openings for the children’s outdoor play areas, elevations articulated by vertical chamferboard bays, and smaller areas finished with painted render and tile surfaces.[93]
  11. [76]
    Mr Powell opines that the proposed development will present to the street frontage as a three-storey building.[94]  During cross-examination, he explained that those parts of the building that project above the third storey are well set back.  Also, they present as elements that might not ordinarily be part of a storey, such as a lift overrun, a water closet, a roof-top plant, and a roof over a stairwell.[95]
  12. [77]
    Dr McGowan disagrees with Mr Curtis’ opinion that the proposed development has a fortress-like appearance.  He explains that, in his view, a fortress is something that is fortified, impermeable and impenetrable.  Dr McGowan acknowledges that the proposed development is characterised by a simple and course geometry.  However, he says it is also characterised by voids and recesses, which provide a contrast of light and shade.  In addition, it is characterised by disaggregation such that the building has a high degree of permeability, and the primary masses are broken down and modulated to be a comfortable human scale.[96]  In his oral evidence, Dr McGowan further explained that the proposed development includes a great deal of variation in terms of the vertical alignment of different walls and windows.  It has substantial openings.  As such, there is not a singular mass, or a singular plane, presented to either Brunswick Street or Merthyr Road.  In addition, the design of the proposed development incorporates a great deal of articulation and stepping of the built form, and a variety of materials and landscaping.  Dr McGowan says that these design features will assist to erode the bulk of the building and to break it down such that it will not present as a monolithic, oppressive, or fortress-like building.[97]
  13. [78]
    In addition, Dr McGowan observes that the fourth level of the proposed development has a smaller footprint than the levels below.  The wall enclosing the outdoor play area on the fourth level is set back from Brunswick Street by between 3.55 and 6.15 metres and from Merthyr Road by between 4.67 and 7.33 metres.  Aside from the enclosed play area, the upper level comprises 114.7 square metres of day-care room, a store area, a staff area, amenities, the lift, and two stairwells.  The roof over the fourth level covers these enclosed spaces and approximately half of the outdoor play area.  Dr McGowan opines that the extent to which the upper level will be visible from Merthyr Road and Brunswick Street is limited.  He says that the building will present more as a three-storey building with some rooftop elements, rather than as a full four-storey built form across the subject land.[98]
  1. [79]
    I do not accept the evidence of Mr Curtis about the appearance of the proposed development.  His observations are discordant with what is depicted on the plans and elevations.  I accept the opinions of Mr Olsson, Mr Powell, and Dr McGowan.  They each provide cogent explanations for their opinions.  Their opinions accord with the proposed development as it is shown on the plans, elevations, and visual representations in the perspective images.[99] 

Does the height of the proposed development, when considered with its setback, sensitively transition to the adjoining lower density zone?

  1. [80]
    It is common ground that the subject land adjoins two lots to the south: 78 and 78b Merthyr Road, New Farm.[100]  Both are in the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone.  The land at 78 Merthyr Road fronts Merthyr Road and is improved by a two-storey, mixed-use building that accommodates a physiotherapy clinic and a residential tenancy.  It has the appearance of a character house.  A three-storey, residential multiple dwelling unit building sits behind it.  It has the street address of 78b Merthyr Road and is accessed via a driveway immediately adjacent the southern boundary of the subject land.[101]
  2. [81]
    The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 5.b. of the District centre zone code because the height of the proposed development does not sensitively transition to these adjoining lots to the south.[102]  In support of their allegation of non-compliance, the Appellants rely on the evidence of Mr Curtis about the transition between the proposed development and the development to the south on Merthyr Road. 
  3. [82]
    Mr Curtis acknowledges that the proposed development has a stepped height that decreases towards the adjacent two-storey character house but considers that the built-form metrics are of significance.  In that respect, Mr Curtis observes that the proposed development will have a two-storey, built-to-boundary wall that is nine metres high.  He notes that the third and fourth storeys will be setback three metres from the boundary.  Mr Curtis places significance on the overall height, which will be 14.3 metres.  He says this is approximately five metres higher than the ridge line of the adjacent character building.  He notes that the screened mechanical plant room enclosure above the fourth storey will be an additional 3.2 metres higher.  Mr Curtis opines that the nine-metre-high built to boundary wall and the three-metre setback to the overall height of the third and fourth storeys will not provide an effective transition of height and scale to the neighbouring properties.[103]  Mr Curtis explains his position by reference to Figure 28 in the Joint Experts’ Report – Visual Amenity and Architecture.[104]  That shows the relationship between the proposed development and the existing two-storey neighbouring properties to the southwest along Merthyr Road. 
  4. [83]
    Mr Olsson disagrees with Mr Curtis.  He says that the predominantly three-storey height of the proposed development’s presentation to Merthyr Road steps down to two-storeys and then to one-storey on the street alignment at the location where the side wall of the proposed development meets the southern boundary.  He opines that this stepping of built form articulates the street elevation and reduces the scale of the proposed development where it relates to the existing two-storey building.  Mr Olsson further opines that, viewed in combination with the three-metre-wide separation between the proposed development and the building to the south, the transition of heights across the building is sensitive and appropriate.[105]  Mr Olsson illustrates his opinion by reference to Figure RO 2 in the Joint Experts’ Report – Visual Amenity and Architecture.[106] 
  5. [84]
    Mr Powell also disagrees with Mr Curtis.  He considers that the proposed development incorporates a height that sensitively transitions to the adjoining land to the south.  In forming his opinion, Mr Powell took into account that acceptable outcome AO26 of the Centre or mixed use code identifies that it is acceptable to have a blank wall with zero side setback for non-residential uses where there is a podium or a building of up to five storeys.[107]  The proposed development complies with this.  Further, he explains that the proposed development ensures that the maximum height of the built-to-boundary blank wall remains at or below 8.9 metres above natural ground and steps down to a maximum height of 5.5 metres within the front 6.5 metres of the proposed development (i.e., adjacent the southern boundary and for 6.5 metres measured from the Merthyr Road frontage).  He says that the parts of the proposed development that are of greater height than the adjoining development are more removed from the side boundary.  He opines that this achieves a sensitive transition down to the boundaries.  Mr Powell explains his opinion well by reference to Figure NP7 in the Joint Experts’ Report – Visual Amenity and Architecture, which is a visual depiction of the proposed development that Mr Powell annotates with arrows to demonstrate the many steps that have been incorporated in the design of the building.[108]
  6. [85]
    Dr McGowan agrees with the opinions expressed by Mr Olsson and Mr Powell.  He says that an appropriate transition is achieved in this instance through increased setbacks from side boundaries at levels 2 and 3 and through stepping and modulation of the building at the southern and northern corners.  He says that the appearance of setbacks and steps in the building are reinforced by the containerised landscaping.  In Dr McGowan’s opinion, transition is also assisted by the three-metre-wide separation from the building to the south and by the separation from the multiple dwelling building to the west of over 10 metres.[109]
  7. [86]
    Whether development incorporates a height and setback that sensitively transitions to adjoining lower-density development to the south along Merthyr Road is a question of fact about which reasonable minds may differ.  I do not accept the opinions expressed by Mr Curtis in this regard.  I prefer the evidence of Mr Olsson, Mr Powell, and Dr McGowan.  The visual depiction of the proposed development in Figure RO 2 and Figure NP7 in the Joint Experts’ Report – Visual Amenity and Architecture[110] accords with the details of the development evident on the plans and elevations.  They illustrate a sensitive transition.  In my view, Figure 28 also depicts a sensitive transition.  
  8. [87]
    I am satisfied that the proposed development incorporates a height and setback that sensitively transitions to adjoining lower density zones and zone precincts.

Does the height of the proposed development complement, and provide a height similar to, the surrounding residential area?

  1. [88]
    The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 6.a. of the District centre zone code because it is not of a height that complements the surrounding residential area to the south.[111]  The Appellants also allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 6.c. of the District centre zone code because it is not of a height similar to surrounding residential areas to the south.[112]  In support of their allegations, the Appellants rely on four aspects of the evidence.  First, the undisputed description of the surrounding context given by the architecture and visual amenity experts.  Second, evidence given by Mr Curtis.  Third, evidence about the built form metrics of the proposed development.  Fourth, evidence given by Mr Buhmann during cross-examination.[113]
  2. [89]
    With respect to the surrounding context, the architecture and visual amenity experts collectively opine that the cluster of commercial and retail buildings and activity that comprises the New Farm District Centre is well defined.  It is characterised by a mix of commercial buildings, several of which reflect traditional building character.  The buildings are predominantly one and two storeys in height, but there are notable exceptions.  They are a four-storey building at 24 Welsby Street, three-storeys above the bank on Brunswick Street, and three-storeys above the bookstore on Merthyr Road.  The scale of built form in the District Centre varies from small shops, such as those north of the subject land, to the large footprint of the Merthyr Village Shopping Centre, which extends across several lots and has a total footprint of approximately 8,000 square metres.  The streetscapes within the District Centre are defined by active shopfronts, continuous awnings, street landscaping, and mature street trees.[114]  Beyond the District Centre, the locality is defined by a variety of generally, but not exclusively, low-rise built forms, including detached houses (many of which present traditional building character), townhouses, and relatively modest multiple dwellings.  The locality is otherwise characterised by a regular, orthogonal street network, a prevalence of mature street trees, gently undulating topography, and a relatively fine-grained lot and built form pattern.[115]
  3. [90]
    The evidence of Mr Curtis on which the Appellants rely includes the his evidence about the relationship between the proposed development and the commercial activities that address the intersection of Brunswick Street and Merthyr Road and the relationship with the adjoining residential development on Merthyr Road to the south-west to which I have referred in paragraphs [31] to [33], [35], [43], [47], [49], [50] and [81] above, and his further evidence referred to in paragraphs [91] to [94] below.
  4. [91]
    Mr Curtis acknowledges that there are differences in height, roof form and character of appearance between the two-storey buildings on the northern and eastern corners of the intersection of Brunswick Street and Merthyr Road and the single-storey buildings on the southern and western corners.  Notwithstanding those differences, he says that all four buildings are of a compatible one to two-storey scale.  He says that contributes to their compatibility and the cohesive character of the intersection’s appearance.[116]
  5. [92]
    Mr Curtis says that notwithstanding the setback provided to the fourth storey, the proposed development will have a robust geometric form with an imposing height in relation to the Brunswick Street and Merthyr Road frontages.  He says its height and scale will dominate the intersection and alter the otherwise existing cohesive character.  He further opines that the proposed development’s fortress like appearance exacerbates the visual impact of its incompatible bulk and scale.  Except for the chamferboard wall cladding, Mr Curtis says that the proposed development lacks any meaningful architectural elements or details that are sympathetic to the prevailing visual character of the landmark intersection or the neighbouring streetscapes to the southeast, northeast, and southwest.[117]
  6. [93]
    In Mr Curtis’ opinion, the proposed development is of an inappropriate height and scale for its locality.  He accepts that the ground storey frontages, and the second and third storey façade articulation will maintain a human scale.  However, he says that the austere appearances of the built-to-boundary side walls to the neighbouring properties will be highly visible and will not maintain a human scale.  Mr Curtis says the proposed development will not contribute to a cohesive streetscape or built form character.[118]
  7. [94]
    Mr Curtis opines that the impact of the four-storey height, scale and form of the proposed development will be partially mitigated by the varied setback of the fourth storey.  However, he says that its height, scale, and form will still be visible in relation to the existing development within the precinct and sub-precinct where the prevailing character and amenity is clearly comprised of one and two storey buildings.  He says that while the acceptable outcomes of the New Farm and Teneriffe Hill neighbourhood plan code contemplate building heights of up to three-storeys within the precinct and sub-precinct in which the subject land is located, no buildings of such height currently exist.  As such, he says the visual impact and contrast of the proposed development’s four-storey height will be accentuated in relation to the existing character and amenity.[119] 
  8. [95]
    I do not accept the evidence of Mr Curtis.  His opinions are discordant with other evidence that I accept, including the photographs and the depiction of the proposed development in the plans, elevations, and visual representations.
  9. [96]
    For reasons explained in paragraphs [72] and [73] above, I do not accept the Appellants’ reliance on built form metrics to be compelling. 
  10. [97]
    The evidence of Mr Buhmann on which the Appellants rely to support their allegations was given during cross-examination.  Mr Buhmann accepted that the proposed development, as shown in Figure RO 1 and Figure RO 2 in the Joint Experts’ Report – Visual Amenity and Architecture would present as three levels but would present as an outlier as compared to the existing built form on the other three corners of the intersection.[120]  This evidence does not assist me to determine whether the height of the proposed development complements, and is similar in height to, the surrounding residential area.  The built form to which Mr Buhmann referred is not in a residential area.  It is located on land in the District centre zone.  In any event, I do not consider this compelling evidence of an inconsistency with the character of the surrounding area.  Mr Buhmann’s evidence was responsive to the questions asked of him, which were premised on an assumption of an unrealistically narrow consideration of matters that inform the character of the area.
  11. [98]
    For the reasons provided above, I do not accept the Appellants’ submissions that the proposed development does not complement, and provide a height similar to, the surrounding residential area to the south. 
  12. [99]
    This issue was also the subject of evidence from Mr Olsson, Mr Powell, and Dr McGowan.
  13. [100]
    Mr Olsson says that the proposed development presents to Brunswick Street as having a predominant height of three storeys.  He explains that this presentation is achieved by the setback of the fourth storey from Brunswick Street and the inclusion of a continuous three-storey-high parapet.[121]  Mr Olsson opines that the alignment of the three-storey parapet with the height of the four-storey residential building to the west provides a height in Brunswick Street that complements surrounding residential areas.  In addition, existing residential buildings on Brunswick Street step up the hill away from the subject land, placing the proposed development within a context of similarly scaled buildings. 
  14. [101]
    Mr Olsson says that part of the proposed development’s frontage to Merthyr Road presents as three-storeys in height.  He says that a fourth storey is set back substantially from Merthyr Road and has little visual impact when viewed from the road.  To the south along Merthyr Road, the mixed-use building, houses, and apartment buildings are predominantly two-storeys, with three-storey apartment buildings at numbers 65 and 71 Merthyr Road (known as Tudor Court) and single-storey houses at numbers 67 and 69 Merthyr Road.  Mr Olsson opines that the proposed height complements these existing heights as it steps down from three storeys to two storeys and then steps down even further to just one-storey adjacent the southern boundary.  As such, he says that the range of heights in Merthyr Road are reflected in the stepped form of the proposed development.[122]
  15. [102]
    Mr Powell agrees with Mr Olsson.  In relation to the fourth storey of the proposed development, he explains that it is only a partial storey.  Mr Powell considers it to be well-located given the topography and existing building heights in the area.  He opines that the overall height response complements the building height and elevations in the surrounding residential areas.[123]  He says that both the immediately adjoining and the wider surrounding residential area contains four-storey buildings on higher elevated land to the north-west, transitioning to three-storeys to the west and ultimately down to a two-storey mixed use to the south-west.  He opines that the proposed development is a predominantly three-storey commercial building that presents as three-storeys to the street frontage and transitions to lower heights at the edges of the built form.  As such, Mr Powell is of the view that the proposed development provides for a medium-rise built form of a height similar to surrounding residential areas.
  16. [103]
    Dr McGowan expresses similar opinions to that of Mr Olsson and Mr Powell.  He agrees with Mr Olsson’s opinions that the three-storey height of the parapet on the proposed development relates well to the height of the four-storey apartment building to the west of the subject land.  He also agrees that the development transitions height appropriately to the two-storey building to the south.  In Dr McGowan’s view, the proposed development’s height is compatible with built form existing and intended in the area.  He says that the proposed development incorporates features that break down the overall scale of the building to achieve a scale transition to smaller built form in the area.[124]
  17. [104]
    I accept the evidence of Mr Olsson, Mr Powell, and Dr McGowan.  They provide cogent explanations for their opinions, which are supported by what is evident in the photographs, plans, elevations, and visual representations.  Collectively, the evidence of Mr Olsson, Mr Powell, and Dr McGowan and the photographs, plans, elevations, and visual representations persuades me that the proposed development:
    1. (a)
      is of a height that complements surrounding residential areas; and
    2. (b)
      provides for a medium-rise built form of a height similar to surrounding residential areas.

Is the height of the proposed development consistent with the amenity and character and community expectations intended for the Mixed use centre precinct and the subject land?

  1. [105]
    The Appellants allege that the proposed development does not comply with the overall outcome in s 7.2.14.1.2 3.m. and performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code because it is not of a height that is consistent with the amenity and character and community expectations intended for the Mixed use centre precinct.[125]  In support of their allegations, the Appellants rely on the evidence of Mr Curtis referred to above, which I do not accept for the reasons explained. 
  2. [106]
    As to the requirements for development to be both consistent with, and aligned with, community expectations for height within the Mixed use centre precinct of the New Farm and Teneriffe Hill neighbourhood plan area, the Appellants submit that it is relevant that the existing built form character of development within the Mixed use centre precinct is largely consistent with the height requirements in acceptable outcomes in the New Farm and Teneriffe Hill neighbourhood plan code.  In those circumstances, they say that the proposed development’s deviation from the 10.5 metre and three-storey expectation would be apparent.[126]
  3. [107]
    Evidence of reasonable community expectations may be found in the properly made submissions.  The submissions made during the development application are a matter to which the assessment manager must have regard.[127] 
  4. [108]
    There were only 17 properly made submissions about the development application, with 16 in opposition and one in support.[128]  Given their limited number, the properly made submissions are not a strong representation of community expectations. 
  5. [109]
    An examination of the substance of the properly made submissions reveals that most objected to the proposed development on the basis that its appearance is out-of-scale or out of character with the existing development in the vicinity or because it represents an overdevelopment.  Many refer to the proposed development being in breach of the current height restrictions – an apparent reference to the acceptable outcomes.  The submissions refer to the quaint charm of the area being informed by old buildings and open air.  The submission in support of the proposed development considered that the design would sit well in the precinct and with the existing architecture.[129] 
  6. [110]
    In my view, there are two matters that limit the weight that should be given to the properly made submissions.
  1. [111]
    First, the development design that the submissions respond to is different to that which I am required to consider.  That is apparent from the images included in the submissions.  It is explained by the change that was made to the development application during the appeal process, as permitted by order of this court.  The changes to the design are responsive to the concerns expressed in the submissions.  For example, there has been a reduction in the gross floor area on the third-floor level from 603 square metres to 460 square metres.  The third-floor level has been changed to provide a cut out in the western corner, which increases the setbacks from three metres to seven metres for part of the southwest boundary on the third-floor level.  The setback, at the third-floor level, from the northwest boundary, part of the northeast boundary and the southeast boundary has also been increased.  This provides greater stepping and articulation in the design as compared to that which was publicly notified.[130]  These differences in the design make it difficult to place significant weight on the properly made submissions.
  1. [112]
    Second, I do not accept that it is reasonable to expect that development of the kind proposed will comply with acceptable outcomes in the New Farm and Teneriffe Hill neighbourhood plan code.  I concur with the approach to community expectations adopted by His Honour Judge Williamson KC in SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors.[131] 
  2. [113]
    Under City Plan, there is no obligation to comply with the acceptable outcomes.[132]  Despite this, several of the submissions reveal an expectation that there is to be strict adherence to acceptable outcomes as if they contain limits or maximums that may only be exceeded in exceptional circumstances.  In my view, to form expectations and assess the merits of the proposed development on this footing sits uncomfortably with ss 5.3.3 and 7.1 6 of City Plan.  Consequently, little weight can be afforded to those expectations and grounds for objection founded on those expectations.
  3. [114]
    In Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors,[133] the Honourable Justice Brown observed:

“While acceptable outcomes in a planning scheme may be relevant in ascertaining the legislative intention of a planning scheme in a particular area, it depends on the terms of the provision itself.”[134]

  1. [115]
    In this case, the community’s expectations about development of the kind proposed on the subject land should start from the footing that the following six matters are evident from City Plan.
  2. [116]
    First, the subject land is included in the District zone precinct of the District centre zone and the Mixed use centre precinct of the New Farm and Teneriffe Hill neighbourhood plan area.  Land in those precincts is intended to be used for centre activities such as those proposed.[135]
  1. [117]
    Second, City Plan provides a pathway to lodge an impact assessable development application for buildings in the District centre zone where the use is proposed in a building that exceeds the building height specified in the acceptable outcomes.[136]  In effect, City Plan does not discourage buildings on the subject land that exceed the acceptable outcomes in respect of height, but requires an impact assessment of development of that kind. 
  1. [118]
    Third, an impact assessable development application seeking approval for centre activities in a building of greater than three storeys or 10.5 metres in height is to be assessed against the whole planning scheme, to the extent it is relevant.[137]  Relevantly, attention is to be given to, amongst other things, the District centre zone code, the New Farm and Teneriffe Hill neighbourhood plan code, and the Centre or mixed use code. 
  2. [119]
    The overall outcome in s 6.2.2.3 4.c. of the District centre zone code requires development in the District centre zone to be:

“i. tailored to its specific location and to the role of the individual centre in the District centre zone and the relevant zone precinct;

ii. consistent with the location-specific provisions in the relevant neighbourhood plan.”[138]

  1. [120]
    This invites consideration of the specific locational characteristics of the subject land.
  2. [121]
    So too does the overall outcome about development form in s 6.2.2.3 5.a. of the District centre zone code.  It encourages development of a scale and intensity that reflects the centre’s proximity to, and frequency of, suburban public transport networks and services and the nature of the surrounding neighbourhood.[139]  Similar outcomes are also sought in the Centre or mixed use code.[140]
  3. [122]
    Fourth, compliance with the New Farm and Teneriffe Hill neighbourhood plan code is demonstrated in accordance with ss 5.3.3 and 7.1 of City Plan, neither of which requires compliance with acceptable outcomes.[141]  Rather, compliance is to be demonstrated with the overall outcomes and performance outcomes of each code.  Those assessment benchmarks do not contain quantitative standards.  They call for qualitative determinations. 
  4. [123]
    Fifth, although the reference to three storeys and a maximum height of 10.5 metres in the acceptable outcome may provide guidance on what the community might expect, it is not a matter that is determinative, nor is the acceptability of the height a matter to be judged in isolation.  The overall outcome in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code requires the appropriateness of the height to be considered together with the scale and form of the development.  It is also concerned with consistency with the amenity and character existing in, and intended for, the area, not just community expectations about height.  Performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code reinforces that the appropriateness of the height is not to be judged only by reference to whether the proposed development is limited to three storeys and 10.5 metres in height.  That performance outcome requires development to be “aligned with” community expectations about the number of storeys to be built, but also requires development to be of a height, scale and form that achieves the intended outcome for the precinct and to contribute to a cohesive streetscape and built form character. 
  5. [124]
    The relevance of such matters when ascertaining reasonable community expectations is long recognised by this Court.  It is well-established that regard must be had to the physical environment of the locality, including all existing development, even if the existing development was approved under an earlier planning regime.  To disregard existing development because it was approved prior to the planning controls would attribute a character to the area that it simply does not have.[142]
  6. [125]
    Sixth, City Plan provides flexibility to approve development that is of a height, scale, and form greater than that anticipated for the relevant precinct, sub-precinct, or site where it is demonstrated that there is both a community need and an economic need for the development.[143]
  7. [126]
    It is apparent from these matters that expectations about the height, scale, and form of commercial development on the subject land cannot be stated in the abstract, let alone by reference to empirical measures only.  The qualitative criteria against which the proposed development is to be assessed turns on matters of fact and degree and requires value-laden judgments about the appearance of the proposed development and the context in which it appears.
  8. [127]
    As such, while the Co-respondents accept that the proposed development departs from acceptable outcomes AO1 and AO12 of the New Farm and Teneriffe Hill neighbourhood plan code, which seek a building of no more than three storeys and 10.5 metres, this is not determinative of the issue with respect to community expectations.  The appropriateness of the height of the proposed development must have regard to the locational characteristics of the subject land, including the existing and intended amenity and character of the locality in which the subject land is located. 
  9. [128]
    The need to have regard to the intended amenity and character of the locality in which the subject land is located is a matter that is overlooked in Mr Curtis’ approach to the issue of compliance with the overall outcome in s 7.2.14.1.2 3.m. and performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code.  In forming his opinions, Mr Curtis focussed on the existing amenity and character.  Although he acknowledges that more intense built form and taller buildings than those which exist presently are anticipated in the District centre zone and the Mixed use centre precinct of the New Farm and Teneriffe Hill neighbourhood plan area, he places no weight on that consideration.[144]  This is yet another reason why I do not accept the evidence of Mr Curtis on this issue.
  1. [129]
    Here, the subject land adjoins a four-storey multiple dwelling at 835 Brunswick Street, a three-storey residential multiple dwelling unit at 78b Merthyr Road, and a two-storey mixed use building (accommodating a physiotherapy clinic and residential tenancy) at 78 Merthyr Road.[145]  To the north of the subject land, across Brunswick Street, are commercial buildings with heights of one and two storeys.  To the north-east of the subject land, diagonally across the intersection, is a two-storey commercial building known as Platon House.  The pitched roofs and extensive frontage add to the visual prominence of the commercial buildings.[146]  To the east of the subject land, across Merthyr Road are commercial buildings with heights of one and two storeys and multiple dwellings with heights of up to three-storeys.  The nearest multiple dwelling, Tudor Court, is 27 metres away.  Further along Merthyr Road, north of Platon House, is a cluster of commercial tenancies that are anchored by the Merthyr Village Shopping Centre.  That centre is approximately 70 metres north-east of the subject land.[147]
  1. [130]
    The subject land sits within a visual catchment that includes medium-rise and elevated built form in both Brunswick Street and Merthyr Road.[148]  This is evident from the photograph labelled Figure NP1 in the Joint Experts’ Report – Visual Amenity and Architecture.[149]  That photograph also supports the evidence of Mr Powell, to which I have referred in paragraph [53] above and which I accept.  Mr Powell explains that the intersection effectively sits at the base of a hill.  He says that the local topography has the effect of drawing the observer’s eye up the hill to the northwest, towards some of the taller, and more elevated, built form that emerges along that uphill route. 
  2. [131]
    The subject land is part of a well-established and vibrant District Centre, with good accessibility to public transportation, such as buses and ferries, and services and facilities that encourage pedestrian activities.[150]  I accept the evidence of the town planners that the buildings in the locality display an eclectic mix of ages, designs, and form.[151]  As I have noted above, Mr Buckley, opines that a distinguishing feature of New Farm is its high concentrations of both traditional Queenslander vernacular designs and art deco designs set amongst modern and other ad-hoc styles.[152]
  3. [132]
    Mr Olsson gave evidence about the extent to which the proposed development achieves the overall outcome in s 7.2.14.1.2 3.m. and performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code.  He considers two matters to be relevant to that assessment.
  4. [133]
    First, Mr Olsson says that the height and scale of the proposed development is consistent with the amenity and character of the Brunswick Street and Merthyr Road sub-precinct and the subject land.  His views are informed by those matters that I have referred to in paragraph [100] above.  In Mr Olsson’s view, the three-storey height of the parapet facing Brunswick Street relates well to the height of the four-storey apartment building to the west of the subject land.  He says it creates an appropriate scale relationship.  The three-storey height of the proposed development’s presentation to Merthyr Street is stepped down at its southern extent to create a single and two-storey height adjacent to the two-storey house, creating an appropriate scale relationship between the two buildings, effectively transitioning to the adjoining zone. 
  5. [134]
    Second, Mr Olsson regards the form of the proposed development to be consistent with the amenity and character of the sub-precinct and the subject land.  This is because the proposed built form is highly articulated into vertical, chamferboard-clad bays.  These bays break down the scale of the building frontage into discrete elements.  This articulation into relatively narrow chamferboard-clad bays assists in relating the form of the proposed development to residential forms in the adjoining residential area.[153]  In Mr Olsson’s view, for reasons explained in paragraph [75] above, the awning and the highly modulated built form, setbacks, materials, details, and landscape create a human scale in the building.[154]  In addition, Mr Olsson opines that the proposed development contributes to a cohesive streetscape at ground level.  This is because it has shopfronts that are predominantly on the street alignment and a street awning.  These design attributes are a feature of the New Farm District centre.  Finally, in terms of consistency in form, Mr Olsson observes that the streetscape of Merthyr Road is comprised of several timber-clad single and two-storey houses.  He says that the character of these houses is complemented by the timber chamferboard cladding of the proposed development. 
  6. [135]
    Mr Powell opines that the height of the proposed development is consistent with the amenity and character of the sub-precinct and the subject land for three reasons.  First, both the immediately adjoining and the wider surrounding residential area contains four-storey buildings on higher elevated land to the north-west, transitioning to three-storeys to the west and ultimately down to a two-storey mixed use to the southwest.  Second, the acceptable outcomes within the New Farm and Teneriffe Hill neighbourhood plan code contemplate taller development than is currently on the subject land.  Third, the proposed development provides for a predominantly three-storey commercial building that presents as three-storeys to the street frontage and transitions at the edges of built form.  He says that this is evidenced by the two perspective views that are at human eye level, namely Figures NP3 and NP4 in the Joint Experts’ Report – Visual Amenity and Architecture.[155]
  7. [136]
    Dr McGowan opines that the proposed development, with its partial fourth storey, is of a height that is compatible with existing built form and with the built form that is intended in the area.  He says the proposed development incorporates features that break down the overall scale of the building to achieve a scale transition to smaller built form in the area.  In his opinion, the proposed development makes an appropriate contribution to the role of the intersection as a focal point.  He says it presents as an appropriate outcome for a site that is adjacent a focal point, at the edge of a District centre, and interfacing with land in the Low-medium density residential zone.[156]  Dr McGowan’s opinions are founded on his observations about the character or the locality, which I have already referred to above and which I accept.
  8. [137]
    I accept the evidence of Mr Buckley, Mr Olsson, Mr Powell, and Dr McGowan.  They provide cogent explanations for their opinions.  To the extent that their opinions are founded on observations about the existing character of the area, they are consistent with the many photographs before me.  To the extent that their opinions are informed by the presentation of the proposed development, they are well-explained and consistent with the plans, elevations, and visual representations of the proposed development.  Their assumptions about the height anticipated by City Plan are also made out on the evidence. 
  9. [138]
    The opinion evidence of each of Mr Buckley, Mr Olsson, Mr Powell, and Dr McGowan (including their evidence about the existing character and the appearance of the proposed development), the many photographs before me, and the plans, elevations, and visual representations of the proposed development persuade me that the proposed development:
    1. (a)
      is of a height, scale and form that is consistent with the amenity and character, and community expectations intended for the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct in the New Farm and Teneriffe Hill neighbourhood plan area and the subject land; and
    2. (b)
      is aligned with community expectations about the number of storeys to be built on the subject land.

Is the proposed development of a human scale?

  1. [139]
    The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 6.a. of the District centre zone code because it is not of a human scale.[157]  Despite maintaining the allegation, the Appellants provided no assistance about it in their written submissions about this issue.  Their submissions only contain three references to the term “human scale”.  They are:
    1. (a)
      in paragraph 15, where the Appellants quote the overall outcome;
    2. (b)
      in paragraph 26, where, in support of their submissions that the height of the proposed development would be inconsistent with, and would unduly alter, the existing character of the intersection, the Appellants quote Mr Curtis’s view that:

“the austere appearances of the built-to-boundary side walls to the neighbouring properties will be highly visible and will not maintain a human scale”

  1. (c)
    in paragraph 29, where the Appellants quote Mr Curtis’s view that most of the existing built form to the southwest has “articulated human scale appearances”.  
  1. [140]
    It seems to me that the absence of submissions with respect to this issue is explained by the lack of evidence in support of the Appellant’s position.[158] 
  2. [141]
    In his individual report, Mr Curtis explained that he agrees with Dr McGowan that the articulation provided by the architectural elements to the second storey and third storey facades that face Brunswick Street and Merthyr Road, such as the proposed fenestration, contribute toward a human scale.  His only reservation about impact on the human scale relates to the side walls that he says will be visible from Brunswick Street and Merthyr Road.  He says that they are of a markedly different architectural design and provide minimal visual articulation.  In his opinion, those side walls do not maintain a human scale.[159]
  3. [142]
    The evidence of Mr Curtis does not demonstrate that the proposed development does not have a form that maintains a human scale.  In my view, that issue calls for a value judgment that is informed by a balanced consideration of the whole of the proposed development.  It does not call for an assessment of whether each of the individual components of the proposed development, when viewed in isolation, could be described as having a human scale.  One must look at the overall effect.
  4. [143]
    On this issue, I had the benefit of evidence from Mr Olsson, Mr Powell, and Dr McGowan.  I have already referred to some of their evidence about this issue, including in paragraphs [75], [77] and [134] above.  Mr Olsson, Mr Powell, and Dr McGowan gave further relevant evidence on this issue, to which I refer in paragraphs [144] to [150] below.
  5. [144]
    Mr Olsson opines that the proposed development maintains a human scale.  He explains how that is achieved by the combined effect of various design elements.  One such element is the awning.  It creates a single-storey scale above the footpath level.   Mr Olsson also explains that the upper building levels are highly articulated into a series of vertical bays separated by openings in the façade for outdoor play areas.  These openings have planter boxes with landscape and metal balustrades that provide a fine level of detail.  The landscaping also provides a level of softness in the facades.  The vertical bays are clad in chamferboard, which casts shadow from the projecting boards across the façade, creating visible detail in the façade.  Mr Olsson opines that all these design elements break down the scale of the building into discrete elements such that the proposed development maintains the human scale of the streetscape.[160]
  6. [145]
    Mr Powell opines that figures NP3 and NP4 in the Joint Experts’ Report – Visual Amenity and Architecture demonstrate that a human and pedestrian scale is achieved.  He explains that two design attributes inform the achievement of a human and pedestrian scale.  The first is the well-defined ground floor with awning protection for pedestrians and clear entry points to the building.  The second is the inclusion of two well-defined storeys above that, which are articulated with stepping of walls and integration of podium planters.[161] 
  7. [146]
    Dr McGowan agrees with Mr Olsson’s observation that the proposed development will maintain a human scale by virtue of the building modulation, landscaping, and setbacks.  He says that a “human scale” is often regarded as the scale at which human interaction is comfortable.  He notes that the Dictionary of Urbanism states:

“development is of a human scale if its size, position and details relate to passers-by in a way that makes them feel comfortable rather than intimidated.”[162] 

  1. [147]
    In addition, Dr McGowan explains that in their book, Measuring Urban Design, Ewing and Clemente explain that:

“human scale refers to a size, texture, and articulation of physical elements that match the size and proportions of humans ...”.[163] 

  1. [148]
    Dr McGowan says that, while Ewing and Clement identify various positions taken on human scale built form,[164] there are no universally accepted metrics that might denote a human scale built form.  Urbanists such as Jan Gehl[165] recognise that taller buildings can achieve a relatable human scale if they are appropriately designed.  Dr McGowan considers that a proximate example is the Queen Street Mall in the Brisbane central business district.  He explains that this is a space defined, for most of its length, by built form that is two to eight storeys high, but by virtue of the scale of the street, provision of awnings, street furniture and street trees, and the scale of detailing and materiality of the lower building levels, it has a comfortable human scale for pedestrians.[166]
  2. [149]
    Dr McGowan considers that another relevant consideration in this instance is that the visual environment in the immediate vicinity of the subject land is one experienced by pedestrians, but perhaps more so by people travelling along Brunswick Street and Merthyr Road in cars.  He says that Gehl[167] explains that the perception of human scale also depends on the speed of movement.  The scale that is comfortable to a person walking through an area will be different to that of someone driving through.  Dr McGowan says that the situation for the proposed development is one where both are of some relevance as the proposed development will form part of a busy pedestrian environment and sits at the intersection of two relatively busy streets.[168]
  3. [150]
    In Dr McGowan’s view, the proposed development effectively modulates the overall bulk into volumes that relate to a human scale.  Smaller forms and details such as planter boxes and balustrading breakdown the apparent mass.  He says that the provision of active edges and awnings at street level, along with landscaping and human scale voids, also assists to achieve a comfortable scale for passers-by (both pedestrians and people in vehicles).[169]
  4. [151]
    I accept the evidence of Mr Olsson, Mr Powell, and Dr McGowan.  Their opinions are well-reasoned and supported by the other evidence that I accept, such as the photographs and plans of the proposed development. 
  5. [152]
    I do not accept Mr Curtis’ evidence that both side elevations will be highly visible to pedestrians walking along Brunswick Street and Merthyr Road or that they translate into a failure to maintain a human scale.  As one can see in Figure 24 of the Joint Experts’ Report – Visual Amenity and Architecture, there is substantial vegetation along the common boundary of the subject land and the four-storey multiple dwelling building at 835 Brunswick Street that would obscure, if not completely obliterate, that side elevation.  Further, even if that vegetation were removed, views of the side elevation would be interrupted as one moved through the area due to the presence of sizeable street trees.  As for the side elevation that presents to 78 Merthyr Road, its visibility will be largely obscured from the view of pedestrians and motorists travelling along Merthyr Road by the built form at 78 Merthyr Road and street trees.  The many photographs in evidence before me demonstrate that one of the features of this part of New Farm that makes a strong contribution to the area’s character and streetscape is the extent (in number, size, and lushness) of vegetation established on the footpaths in the vicinity of the subject land.
  6. [153]
    That said, I accept that the appearance of the side elevation adjacent 78 Merthyr Road would be improved were the proposed development conditioned in the manner recommended by Mr Powell at paragraph 192 of the Joint Experts’ Report – Visual Amenity and Architecture.  He recommends a condition that the proposed wall treatment to the first 4.5 metres above the proposed ground level up to 9 metres Australian Height Datum be differentiated from the part above 4.5 metres as illustrated in Figure NP7 of the Joint Experts’ Report – Visual Amenity and Architecture.[170]  That said, I do not regard the present appearance as unacceptable, nor do I consider that the development warrants refusal absent such a condition.
  7. [154]
    I am satisfied that the proposed development ensures a form that maintains a human scale. 

Does the proposed development reflect the pedestrian nature and scale of the locality?

  1. [155]
    The Appellants allege that the proposed development does not comply with performance outcome PO12 of the New Farm and Teneriffe Hill neighbourhood plan code as it does not reflect the pedestrian nature and scale of the locality.[171]  Despite maintaining the allegation, the Appellants provided no assistance about it in their written submissions.  The only reference to it is in the quote of the performance outcome.
  2. [156]
    I have already referred to some of the evidence of Mr Olsson, Mr Powell and Dr McGowan about this issue above, including in paragraphs [75], [134] and [145] to [150] above.  For reasons already explained, I accept that evidence.
  3. [157]
    In addition, Mr Olsson opines that the proposed development reflects the pedestrian nature and scale of the locality through its continuous ground level shopfronts and awning, and through the provision of chamferboard-clad upper-level facades that relate to nearby mixed use and residential buildings to the south.[172]  Mr Powell expresses similar views.[173]  I accept their evidence.  It is well-reasoned.  It is also supported by other evidence that I accept, such as the photographs, and the plans, elevations, and visual representations of the proposed development.
  4. [158]
    I am satisfied that the proposed development appropriately reflects the pedestrian nature and scale of the locality.

Will the height, scale and built form create a consistent and cohesive streetscape and built form character?

  1. [159]
    The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 5.c. of the District centre zone because it will not provide a built form that creates a consistent and cohesive streetscape along both Merthyr Road and Brunswick Street.[174]  In addition, the Appellants allege that the proposed development will not comply with performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code because the bulk and architectural design of the development does not contribute to a cohesive streetscape and built form character.[175] 
  1. [160]
    I have already referred to, and made findings about, much of the evidence about the existing character of the streetscape and built form character in paragraphs [31] to [60] above. 
  2. [161]
    Further, as I have already mentioned in paragraph [89] above, the Appellants accept the description of the surrounding context agreed by the architects and visual amenity experts.  The experts agree that the streetscapes within the District Centre are defined by active shopfronts, continuous awnings, street landscaping, and mature street trees.[176]  I accept this evidence.  It is supported by the photographs.  As I have found in paragraph [152] above, the many photographs in evidence before me demonstrate that one of the features of this part of New Farm that makes a strong contribution to the area’s character and streetscape is the extent (in number, size, and lushness) of vegetation established on the footpaths in the vicinity of the subject land.  So too do the active shopfronts and continuous awnings.
  1. [162]
    I also accept the evidence of Mr Buckley and Mr Buhmann, referred to in paragraphs [58] and [59] above about the built form character and streetscape character of the area.  The photographs support Mr Buhmann’s evidence that the predominant form of the commercial centre is defined by the ground-level street activation, streetscape planting and associated pedestrian awning rather than by any building type or scale.[177]
  2. [163]
    Mr Curtis opines that the proposed development does not satisfy the overall outcome in s 6.2.2.3 5.c. of the District centre zone.  His opinion is premised on his views about the streetscape.  I do not accept his opinion that the existing streetscape to the southwest along Merthyr Road that neighbours the subject land has a relatively cohesive appearance primarily due to the consistent lot and building widths and building separations, and the compatible height and scale of the built form.  In this regard, I prefer the evidence of Dr McGowan to which I have referred in paragraph [57] above.
  3. [164]
    Mr Olsson opines that a consistent and cohesive streetscape is achievable with the proposed design approach at the ground level, which is comprised of mostly continuous shopfronts and a street awning.  He says this is consistent with the primarily retail streetscapes in the District centre.  Mr Olsson notes that the District centre zoning of the subject land anticipates a greater intensity of development than two-storeys.  He says that the proposed building height of predominantly three storeys will create a cohesive streetscape, particularly as the New Farm and Teneriffe Hill neighbourhood plan code includes an acceptable outcome for the relevant sub-precinct that foresees three storeys.  Mr Olsson opines that the proposed development provides a consistent and cohesive streetscape with shopfronts and an awning and vertical bays that break down the scale of the proposed development in relation to its built form context.  He says the breaking down of this scale in Merthyr Road responds to, and transitions to, the adjoining residential zone.[178]
  4. [165]
    Mr Powell says that, in his opinion, the creation of a cohesive and consistent streetscape does not require the proposed development to be limited to one or two storeys, as appears to be implied by Mr Curtis.  He says that this is not only because the acceptable outcome for this sub-precinct anticipates up to three-storeys (where surrounded by zones and sub-precincts where the acceptable outcome is one storey less), or because adjoining neighbours achieve three and four-storeys in height (being up to double their acceptable outcome).  It is also because the centre zoning on this corner lot, juxtaposed with the residential zoning on both adjoining boundaries, contributes to an anticipated relative increase in scale and intensity compared to its neighbours, provided there is a sensitive height transition at the building’s edges.
  5. [166]
    With respect to whether the proposed development contributes to a cohesive streetscape and built form character, Dr McGowan acknowledges that the proposed development forms part of both the Merthyr Road streetscape and the Brunswick Street streetscape.  However, he considers it noteworthy that the subject land sits within the District centre zone.  He says that, as such, a different streetscape outcome is anticipated for the subject land as compared to the neighbouring land to the south and west along each of these streets, which is in the Low-medium density residential zone.  I agree.  This is evident from the overall outcome in s 6.2.2.3 5.c. of the District centre zone, which requires that development provide continuous pedestrian connections and shelters.
  6. [167]
    Dr McGowan agrees with Mr Olsson’s observations that the proposed development contributes to a cohesive streetscape at ground level with shopfronts predominantly on the street alignment and a street awning that is consistent with other awnings in the District centre.  He also agrees that the proposed building height at the street edges of predominantly three storeys will create a cohesive streetscape, particularly as the New Farm and Teneriffe Hill neighbourhood plan code acceptable outcome for the sub-precinct and subject land is three storeys.[179]
  7. [168]
    I accept the evidence of Mr Olsson, Mr Powell, and Dr McGowan.  Their assumptions are supported by City Plan.  In addition, they provided cogent explanations for their opinions, and their evidence accords with the other evidence that I accept.
  8. [169]
    I am satisfied that the proposed development:
    1. (a)
      provides a built form that creates a consistent and cohesive streetscape and continuous pedestrian connections and shelter; and
    2. (b)
      is of a height, scale and form that contributes to a cohesive streetscape and built form character.

Will the proposed development respect, contribute to, and reflect the existing heritage, character, grain, style, and sense of place of New Farm?

  1. [170]
    The Appellants allege that the proposed development is inconsistent with the overall outcomes in s 6.2.2.3 6.a. of the District centre zone because the proposed development does not respect, nor contribute to, the existing heritage, character, grain and sense of place of New Farm.  They also allege that the proposed development does not comply with the overall outcome in ss 7.2.14.1.2 3.b. and f. of the New Farm and Teneriffe Hill neighbourhood plan code because the proposed development will not reflect New Farm’s established character and style.  Further, the Appellants allege that the proposed development does not comply with performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code because the bulk and architectural design does not contribute to the built form character.[180]
  2. [171]
    Much of the Appellants submissions about this issue focus on an identification of differences between the proposed development and other nearby development by reference to evidence given by the experts during cross-examination.[181]  I do not consider that evidence to be of much assistance for two reasons.  First, the evidence was elicited in response to questions that focussed on narrow propositions that do not provide a balanced view of the character of the area or the extent to which the proposed development accords with it.  Second, the existence of differences in scale or in design features that contribute to character do not, of themselves, demonstrate non-conformance with the applicable assessment benchmarks.[182]  As such, the evidence of the experts about the visual impact of the proposed design considered in its surrounding context is of greater assistance than evidence that involves a mere cataloguing of the differences.
  3. [172]
    Relevantly, the Appellants rely on the evidence of Mr Curtis.  Mr Curtis opines that the proposed development does not comply with the assessment benchmarks in issue.  His opinion is premised on earlier observations to which I have already referred and his views as follows.
  4. [173]
    Mr Curtis notes that at the ground storey along the Brunswick Street frontage, there are full-height, fixed-glass walls, and a glazed entry door.  Along the Merthyr Road frontage, the walls are a combination of fixed glass and operable sliding glazed walls.  He says that these ground storey walls will provide adequate activation to the adjoining footpaths along Brunswick Street and Merthyr Road.  He opines that the balcony openings, fenestration, planter boxes and finishes provide limited articulation.  He says that the Brunswick Street and Merthyr Road façades are more generally characterised by the modulated geometry of the building envelope’s appearance.  He says that this appearance has a robust, fortress-like quality that is highlighted by the zero frontage setbacks and the high visibility provided by the prominent corner location.  Further, Mr Curtis says that the very limited articulation of the south and west walls results in an austere and robust geometrical presentation that accentuates the visual bulk of the proposed development’s appearance and contributes to its fortress-like character.[183]
  5. [174]
    In Mr Curtis’ opinion, the setback of the fourth storey from the Brunswick Street and Merthyr Road frontages will provide only limited mitigation to the visual impact of the proposed development’s bulk and scale when viewed from the direct opposite side of the street.[184]
  6. [175]
    In addition, Mr Curtis says that the three-storey-high walls that adjoin the Brunswick Street and Merthyr Road frontages will be approximately the same height as the existing neighbouring four-storey multiple dwelling to the northwest, which is setback approximately 6 metres from the Brunswick Street frontage and has a frontage width of approximately 11.5 metres.  He opines that the proposed development’s zero setback to the street frontage and its significantly greater frontage width to both Brunswick Street and Merthyr Road will accentuate the visual impact of its greater bulk.[185]
  7. [176]
    Mr Curtis says that the proposed development will have a built form that could be reasonably described as contemporary.  He says that its robust geometry clearly eschews the adoption of a traditional character style in that it does not include pitched roofs or projecting verandas.  He opines that the design approach adopts a robust visual geometry of juxtaposed orthogonal blocks punctuated by openings that accommodate recessed balconies, planter boxes and windows.  Mr Curtis says that the use of chamferboard cladding to the street facades, presumably as a reference to traditional weatherboard cladding, appears somewhat incongruous with this design approach.  Mr Curtis accepts that the juxtaposed geometry of the blocks and openings assists to modulate the bulk of the overall form, but he says it fails to effectively mitigate its overwhelming scale and general dominance of the intersection.[186]
  8. [177]
    Mr Curtis says that it is questionable as to whether there is an established New Farm character and style.  However, based upon the above observations, he opines that the proposed development will not complement the existing setting.  He says that the bulk and design of the proposed development will contrast with and have a detrimental impact on the existing character of the locality, and notably with the adjoining building on Merthyr Road and the other character-style buildings at the Merthyr Road and Brunswick Street intersection and along the adjoining streetscapes.[187]
  9. [178]
    In his individual report, Mr Curtis provides further explanation about his opinion.  He says that the legible character of the New Farm locality differs for its areas of residential detached houses, residential medium and high-density multiple dwellings, and its commercial and retail areas.  Mr Curtis opines that the subject land falls within a recognisable commercial and retail part of New Farm.  He says that the legible character and style of that area is a lower rise (two to three-storey) built form, with built-to-boundary walls, fenestration at the upper levels, the use of chamferboard cladding to the street facades, pitched roofs, and verandas that project over the footpath.  Mr Curtis accepts that the proposed development’s design reflects some of those elements in that it is built to boundary and has upper floor fenestration.  However, he says that these elements are relatively ubiquitous as architectural elements.  In his opinion, the proposed development’s overwhelming scale and general dominance of the intersection makes it inconsistent with the character elements that define the New Farm commercial and retail area.  
  10. [179]
    I do not accept Mr Curtis’ opinion for each of the following three reasons.
  11. [180]
    First, in my view, Mr Curtis’ opinion is premised on observations that are discordant with what is shown on the plans.  For example, I do not agree with his view that the balcony openings, fenestration, planter boxes and finishes provide limited articulation.  I also do not agree that the proposed development has a robust, fortress-like quality. 
  12. [181]
    Second, Mr Curtis places undue emphasis on the scale and limited articulation of the south and west walls.  Their contribution to the character of the area is limited by the extent to which they will be visible.  Their visibility is obscured by the existing built form and vegetation on the adjoining lots, and by vegetation in the streetscape.  I prefer the evidence of Mr Olsson about the impact of the south and west walls.  He says that the wall on the western side boundary is the same scale as the four-storey residential building that is set back 10 metres from the side boundary.  In addition, Mr Olsson opines that existing canopy trees in the property to the west and in the street will substantially obscure views of the proposed wall when approaching the subject land from the west, thereby reducing any perceived fortress-like character of the wall.  Mr Olsson supports his opinion by reference to a photograph.  As for the southern wall, Mr Olsson says the fact that it is built to the side boundary does not contribute to a fortress-like character, as the form is stepped down to one and two storeys.  He says that this reduces the perceived scale of the wall.[188] 
  13. [182]
    Third, having regard to the photograph of the commercial property at 888 Brunswick Street, on the northeast corner of Brunswick Street and Merthyr Road,[189] I do not accept that the built form is notably larger than the surrounding residential and commercial built form. 
  14. [183]
    I have already referred to, and made findings about, much of the other evidence that informs a determination of the existing heritage, character, grain, style, and sense of place of New Farm above. 
  1. [184]
    The opinions of Mr Buckley and Mr Buhmann about the character, style and sense of place of New Farm are set out in paragraphs [58], [59] and [131] above.  Mr Schomburgk agrees with their evidence.[190] 
  2. [185]
    As I have already found, I accept this evidence of the town planners.  It accords with the many photographs in evidence before me.  The evidence persuades me that that there is no one design or form of architecture predominating in the New Farm district centre and surrounding area.  There are high concentrations of both traditional Queenslander vernacular designs and art deco designs.  Buildings with those characteristics are set amongst modern buildings and other ad-hoc styles.[191]  In terms of height, the commercial buildings are a mix of between one and three storeys.  The defining feature of the commercial centre is the ground-level street activation, streetscape planting and the pedestrian awnings, not any building type or scale.
  1. [186]
    Mr Olsson opines that the intensity and form of the proposed development respects the existing character of the locality, including the adjoining building on Merthyr Road and the other character buildings at the Merthyr Road and Brunswick Street intersection.  He says that those building are not heritage buildings, however they do exhibit local character through scale, grain, materials, and textures.  With respect to the compatibility of the proposed development with the adjoining building on Merthyr Road, he says that the transition of the proposed development’s built form to the neighbouring house is skilfully designed in a series of stepped forms so that the two-storey scale of the house is reflected in the adjoining single, two and three-storey scale of the proposed development.[192]
  2. [187]
    In Mr Olsson’s opinion, the grain of Merthyr Road consists of relatively narrow house lots compared to the wider lot of the subject land.  He says that the wider lot is appropriate to the District centre zone.  He says that the proposed development appropriately resolves the difference in lot widths and building scale.  He explains that it does so by dividing the elevation into bays using chamferboard-clad verticals that are separated by openings with balustrades and landscaping.  Mr Olsson explains that the vertical divisions break down the scale of the proposed development’s elevation so that it relates better to the grain of the residential area.  He says that the height of the proposed development also transitions down from north to south towards the residential area.[193]
  3. [188]
    Mr Olsson explains that the materials of the proposed development consist of chamferboard, painted render, tiles and metal balustrades.  The chamferboard relates to the timber-clad houses in Merthyr Road.  The painted render on upper levels is similar to the painted render of the existing shop buildings on the northwest and northeast corners of the intersection of Merthyr Road and Brunswick Street.  The texture of the chamferboard and the balustrades provide small-scale detail to the elevations.  Mr Olsson says that the upper-level planting and street trees relate well to the chamferboard and soften the elevations.[194]
  4. [189]
    Mr Olsson opines that the proposed development contributes to a cohesive built form character.  His opinion is founded on his evidence that I have already addressed.  In summary, it is based on four matters.[195] 
  5. [190]
    First, the New Farm and Teneriffe Hill neighbourhood plan code anticipates a height of three storeys for the sub-precinct and the subject land.[196]
  6. [191]
    Second, the scale of the proposed development is consistent with the amenity and character of the sub-precinct as:
    1. (a)
      the height relates to the four-storey apartment building in Brunswick Street;
    2. (b)
      the proposed development has a human scale due to its substantial articulation and its awnings; and
    3. (c)
      the proposed development’s scale is broken down to relate to the height of the single, two and three-storey buildings to the south in Merthyr Road.[197]
  7. [192]
    Third, the proposed development improves the amenity of the neighbourhood plan area as it replaces a single-storey retail building that has little character.[198]
  1. [193]
    Fourth, the proposed development contributes to a cohesive streetscape and reflects the pedestrian nature and scale of the locality through its continuous ground level shopfronts and awning, and by incorporation of chamferboard clad upper-level facades that relate to nearby mixed use and residential buildings to the south.[199]  Mr Olsson explains that the chamferboard cladding removes any perception of a heavy, masonry fortress and reflects the adjoining lightweight, timber mixed-use building and houses in the locality.  Mr Olsson says that the two-storey mixed use building and houses on the western side of Merthyr Road exemplify this cladding style and they are complemented by the timber detailing on the three-storey apartment building on the eastern side of Merthyr Road that is known as Tudor Court.[200]
  1. [194]
    With respect to the character buildings at the Merthyr Road and Brunswick Street intersection, Mr Olsson notes that the current buildings are one and two storeys.  He disagrees with Mr Curtis’s opinion that the buildings on each corner of this intersection need to be one or two-storeys in height to contribute to their compatibility and the cohesive character of the intersection.  In support of his opinion, Mr Olsson notes that the New Farm and Teneriffe Hill neighbourhood plan code anticipates a three-storey height, and the subject land is adjacent to a four-storey residential building.  In addition, he says that the existing single-storey buildings on the southeast corner and southwest corner (i.e., the subject land) exhibit little character due to their facades being primarily comprised of glass shopfronts and an awning.  The two-storey buildings on the northwest and northeast corners have the character of painted masonry first floor facades and pitched roofs, which elevate the scale of the two-storey facades.  Having noted the disparate character elements of the existing commercial buildings, Mr Olsson opines that the painted render on the upper levels of the proposed development has the potential to reflect the painted facades of the corner character buildings, depending on the colour selected.  Similarly, the tiled facades on the southern part of the Merthyr Road elevation have the potential to further reflect the materials and colours of the existing houses in a sympathetic manner.  Mr Olsson says that the textures of the tiles and chamferboard have the potential to provide small-scale detail in the elevations.[201]
  2. [195]
    Mr Olsson opines that, whilst the established New Farm character and style is difficult to define, the proposed development is contemporary architecture, containing building elements that relate the building to the character of the locality.  This is achieved by the division of facades into smaller bays, and the incorporation of lightweight cladding, painted render, street trees, and landscaping at upper levels of the building.[202]
  3. [196]
    I accept the evidence of Mr Olsson.  It accords with other evidence that I accept, including the photographs of the area and the plans of the development.
  4. [197]
    I am satisfied that the proposed development will ensure a form that respects existing heritage, character, and grain in the area.  The redevelopment of the subject land will reflect New Farm’s character and style.  It will complement the existing urban and landscape characteristics and contribute to the distinctive and identifiable character and sense of place of New Farm.  I am also satisfied that the proposed development is of a height, scale and form that contributes to a cohesive built form character.

Will the proposed development retain an appropriate visual relationship with the adjoining residential precincts?

  1. [198]
    The Appellants allege that the proposed development is inconsistent with performance outcome PO12 of the New Farm and Teneriffe Hill neighbourhood plan code because the proposed development does not retain an appropriate visual relationship with adjoining precincts to the south.[203]
  2. [199]
    The Appellants’ Further Amended Particularised List of Reasons for Refusal,[204] and earlier iterations of it, do not contain an allegation that the proposed development, by reason of its size and bulk, is not sensitive to the surrounding residential environment and, as such, fails to comply with performance outcome PO13 of the New Farm and Teneriffe Hill neighbourhood plan code.  Despite that, the Appellants make such an allegation in their Outline of Argument.  They submit that the Court would not be satisfied that the proposed development will:

“retain an appropriate visual relationship with (NP Code PO12), and otherwise be sensitive to (NP Code PO13), the surrounding residential environment on Merthyr Road.” [205]

  1. [200]
    Leaving aside the inappropriateness of the Appellants surreptitious attempt to expand the issues through written submissions after the close of the evidence, I do not accept the substance of the submission.
  2. [201]
    In my reasons above, I have already referred to, and made findings about, the evidence relating to:
    1. (a)
      the visual presentation and character of the existing development in the adjoining residential precincts;
    2. (b)
      the design attributes of the proposed development;
    3. (c)
      the appropriateness of the visual relationship between the proposed development and adjoining residential precincts; and
    4. (d)
      how the proposed development will provide a sensitive transition to the surrounding residential environment.
  3. [202]
    Based on those findings, I am satisfied that the proposed development retains an appropriate visual relationship with adjoining residential precincts.  I am also satisfied that the proposed development, and the proposed building’s size and bulk, is sensitive to the surrounding residential environment and exhibits a positive relationship with the street.

Is the size and bulk of the proposed development consistent with the existing small-scale development and does it reflect the scale of the locality?

  1. [203]
    The Appellants allege that the proposed development does not comply with performance outcome PO12 of the New Farm and Teneriffe Hill neighbourhood plan code because the proposed development is not of a height and scale that reflects the scale of the locality.[206]  They also allege that the proposed development does not comply with performance outcome PO13 of the New Farm and Teneriffe Hill neighbourhood plan code because the development is not of a scale that is consistent with existing small-scale development in the immediate locality, nor the surrounding residential environment to the south.[207] 
  2. [204]
    Despite maintaining the allegations, the Appellants provided limited assistance about them in their written submissions.  They submit:

“57. It is not the Appellants’ case that to satisfy the scheme provisions that relate to bulk, scale and architectural design development must replicate or approximate that existing in the surrounding locality.  However, having regard to the evidence set out above, and in particular the material differences between the bulk, scale and design of the proposed development to that in the locality, it is submitted that the Court would not be satisfied that the proposed development will:

  1. (a)
    reflect the scale of the locality (NP Code PO12);
  1. (b)
    be consistent with existing adjoining small-scale commercial and residential development (NP Code PO13);

…”

  1. [205]
    In addition to the evidence already addressed (and rejected) above, the Appellants rely on built form metrics to support their position.  They submit that with a gross floor area that exceeds the Mixed use zone precinct-specific acceptable outcome (i.e., acceptable outcome AO13.1) by a factor of 328 per cent, height varying between three and four storeys (with intermediate and visible 1.8-metre-high concrete balustrades), and street frontages of 32.7 metres and 25.8 metres to Brunswick Street and Merthyr Road respectively, the Court would find the development does not comprise “small-scale” development.  The Appellants submit that the Court would find the proposed development to be of a materially different built form character to the surrounding locality, both within the Mixed use centre precinct at the intersection of Brunswick Street and Merthyr Road and beyond in the Low-medium density living precinct in Merthyr Road.[208]
  1. [206]
    The term “small-scale” is not defined in the Planning Act 2016, the Planning Regulation 2017, City Plan, or the Acts Interpretation Act 1954 (Qld).  As such, its ordinary meaning applies.[209] 
  2. [207]
    As was identified by the Honourable Justice Brown in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors:[210]

“[75] “Small scale” is defined to be “of limited size or extent,”[211] in the Oxford Dictionary and, relevantly, is defined in the Macquarie Dictionary as “unambitious, or of small extent, as an enterprise.”[212]

…

[77] In Zappala Family Co Pty Ltd v Brisbane City Council,[213] Morrison JA, with whom McMurdo P and Douglas J agreed, stated that the same principles which apply to statutory construction applied to the construction of planning documents. In particular, his Honour referred to the principles set out by the majority in Project Blue Sky Inc v Australian Broadcasting Authority,[214] in the following terms:

“The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

…

[78]However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning …” (underlining added)

[78] Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council also referred to the decision of AAD Design Pty Ltd v Brisbane City Council,[215] where Chesterman JA stated in relation to planning schemes, they can “often lack clarity, contain ambiguities and sometimes appear contradictory,” and noted that the Court should adopt a common sense approach and endeavour to give words meaning. Justice Morrison stated that the approach should start and end with the text, seen in its context in the way suggested by Project Blue Sky.[216] His Honour also referred to High Court decision often cited as setting out the modern approach to statutory interpretation, CIC Insurance Ltd v Bankstown Football Club Ltd,[217] where the majority stated that the modern approach to statutory interpretation insists that the context be considered in the first instance, and context is to be used in its widest sense.”[218]

  1. [208]
    Whether the proposed development is “small-scale” is to be determined by looking at the words used in the relevant provision in City Plan, and the terms of the whole of City Plan to determine the meaning the terms were intended to have.
  2. [209]
    In performance outcome PO13 of the New Farm and Teneriffe Hill neighbourhood plan code, the term “small-scale” is used to describe “existing development” in the Mixed use centre precinct.  The assessment benchmark requires the size and bulk of the proposed development to be “consistent with” that existing scale. 
  3. [210]
    There is no bright line to define whether a proposed development is “consistent with existing small-scale development”.  It is a relative phrase that calls for a factual determination having regard to the terms of the assessment benchmarks viewed through the lens of the local context in which the development is proposed.  Although acceptable outcome AO13.1 provides some guidance, non-compliance with it is not definitive.  It is not mandatory to comply with acceptable outcomes. 
  4. [211]
    Here, the proposed development does not comply with acceptable outcome AO13.1 of the New Farm and Teneriffe Hill neighbourhood plan code.  It has a gross floor area of 1,313 square metres, comprising 410 square metres for the two ground-floor commercial tenancies and 903 square metres for the childcare centre.  It has a maximum gross floor area that is greater than 80 per cent of the site area and greater than the gross floor area of the existing building.  As such, one must consider whether there is consistency with the existing small-scale development in the Mixed use centre precinct.
  1. [212]
    In the immediate vicinity of the subject land, the Mixed use centre precinct corresponds with the land in the District centre zone.  As is evident from the many photographs, including the aerial photographs, most of the existing development in the immediate vicinity of the subject land is sizeable.[219]  For example, the development on the northwest corner of the intersection of Brunswick Street and Merthyr Road is housed in a two-storey building that appears to cover the entire site.[220]  A similar observation is apt for the development on the northeast corner of the intersection.[221]  Mr Duane and Ms Meulman, the economists retained by the Co-respondents and the Appellants respectively, agree that the overall district centre floorspace at New Farm exceeds 10,000 square metres, and the largest tenant is a Coles supermarket of 3,400 square metres.[222]  The proposed development does not begin to approach that type of scale.
  1. [213]
    The photographs show other development in the District centre zone that appears to have a smaller-scale than the development on the northwest corner of the intersection and the Coles.  Examples include the building containing the butcher and pet store on the northern side of Brunswick Street and the real estate agent on the southeast corner of the intersection of Brunswick Street and Merthyr Road.[223]  Having regard to the findings I have already made about the design attributes of the proposed development that will break down its scale, I am satisfied that the proposed development will achieve consistency with these examples of the smaller-scale development in the area. 
  2. [214]
    Further, as I have already found, I am satisfied that the proposed development will:
    1. (a)
      sensitively transition to the adjoining land in the Low-medium density residential zone;
    2. (b)
      complement the surrounding residential area;
    3. (c)
      be consistent with the amenity and character intended for the Mixed use centre precinct of the New Farm and Teneriffe Hill neighbourhood plan area;
    4. (d)
      be of human scale;
    5. (e)
      reflect the pedestrian nature and scale of the locality;
    6. (f)
      create a consistent and cohesive streetscape and built form;
    7. (g)
      respect, contribute to, and reflect the existing heritage character, grain, style, and sense of place of New Farm; and
    8. (h)
      retain an appropriate visual relationship with adjoining residential precincts.
  3. [215]
    In the circumstances, I am satisfied that the proposed development will reflect the scale of the locality.  I am also satisfied that the proposed development, and the proposed building’s size and bulk, while at the upper margins, is consistent with existing small-scale development.
  4. [216]
    If I am wrong about the appropriate approach to assessing the proposed development against performance outcome PO13 of the New Farm and Teneriffe Hill neighbourhood plan code, any resultant non-compliance would be entitled to weight and would tell against approval of the proposed development.  However, I do not regard such a non-compliance to be determinative in this case given:
    1. (a)
      the proposed development complies with the other assessment benchmarks that govern the appropriate scale of development, such as the overall outcome in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code;
    2. (b)
      the New Farm and Teneriffe Hill neighbourhood plan code admits of development of a greater height scale and form where there is both a community need and economic need for the development, which there is in this case;[224] and
    3. (c)
      the overall outcome in s 7.2.14.1.2 7.c. of the New Farm and Teneriffe Hill neighbourhood plan code stipulates that larger tenancy sizes are appropriate where involving a new community facility to service the needs of local residents, which is the case here.[225]

Is the proposed development sited to enable existing and future buildings to be well separated from each other?

  1. [217]
    The Appellants allege that the proposed development is inconsistent with performance outcome PO1(e) of the New Farm and Teneriffe Hill neighbourhood plan code because it is not sited to enable existing and future buildings to be well separated from each other.[226]
  1. [218]
    The Appellants submit that this requirement, like the requirement set out in the overall outcome in s 6.2.2.3 5.b. of the District centre zone code, operates in addition to the setback requirements in the Centre or mixed use code such that compliance with the requirements of the latter code do not result in a deemed compliance with this provision.[227]  I accept this submission.
  2. [219]
    The Appellants further submit:

“Given the fundamental differences in scale between the built to boundary development and the sensitive receptors of the adjoining residence such as the rear balcony, and the absence of any softening vegetation between them, it is submitted that the Court would not find the proposed development to be “well separated” from the adjoining residential premises to the south-west.”[228]

  1. [220]
    In support of this submission, the Appellants rely on the evidence of Mr Curtis, Dr McGowan, and Mr Schomburgk referred to in paragraphs [221] to [226] below.[229]
  2. [221]
    Mr Curtis opines that the proposed development “will not contribute to the well separation of existing and future development”.[230]  In explaining his opinion, Mr Curtis notes that the nine-metre-high, two-storey, built-to-boundary side walls to the south and the 10.75-metre-high, three-storey, built-to-boundary side walls to the west are generally solid with limited cut-out openings.  He says that the lack of fenestration and adequate articulation results in an austere, featureless appearance that is without any visual interest.  Mr Curtis says that these walls will directly face the windows in the side wall of the neighbouring two-storey character-style commercial building to the southwest along Merthyr Road and the balconies of the neighbouring existing multiple dwelling to the northwest along Brunswick Street.[231]  
  3. [222]
    Mr Curtis accepts that the windowless walls of the proposed development will maintain the visual privacy of the neighbouring existing buildings.  However, he says that they will provide a poor outlook with little visual interest.  He says that the proposed development will appear bulky and overbearing to sensitive receptors within the neighbouring buildings.[232]
  4. [223]
    In addition, Mr Curtis opines that the separation provided by the driveways of the neighbouring buildings to the proposed development will provide high visibility of the proposed development’s side walls to pedestrians moving along Brunswick Street and Merthyr Road.  He considers this to be unacceptable for reasons I have already addressed.[233]
  5. [224]
    Mr Curtis accepts that zero side boundary setbacks generally prevail within the District centre zone and the Mixed use precinct of the New Farm and Teneriffe Hill neighbourhood plan area.  However, he says that they do not prevail at the interface between the District centre zone and residential zones.[234] 
  1. [225]
    In further support of their allegation, the Appellants submit that Dr McGowan confirmed that the proposed planting on the south-western face of the wall would not enhance the amenity of the neighbouring residents in any meaningful way.  I accept the evidence of Dr McGowan.  That said, it does not assist in the overall determination of this issue as it does not present the full picture.
  1. [226]
    The Appellants also rely on evidence from Mr Schomburgk.  He opines that the proposed development on the subject land, being built to the boundary at lower levels and with only minor setback at the third level, will adversely restrict any re-development potential for the adjoining land.  That opinion is premised on five matters. 
  2. [227]
    First, the proposed development is to be built on the south-western boundary, for effectively the full length of that common boundary for the lower two levels, with only the third and fourth (top) floors setback from that boundary.  Second, the subject land abuts a residential area in the Low-medium density residential zone.  Third, the existing development on the adjoining site comprises an older-style two-storey dwelling that is currently used as a physiotherapy premises at ground level with dwelling above, and a three-storey dwelling unit to the rear, which gains access via an easement along the common boundary with the subject land.  Fourth, the older style house (i.e., the building at 78 Merthyr Road) is on land within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and is ripe for redevelopment.  Fifth, Mr Schomburgk says that, although the current access easement provides a level of separation, it cannot be guaranteed to remain into the future.[235]
  3. [228]
    In addition to the evidence relied on the Appellants, there is evidence from Mr Olsson, Mr Powell, Dr McGowan, Mr Buckley, and Mr Buhmann on this issue.
  4. [229]
    Mr Olsson disagrees with Mr Curtis.  He says that although the proposed development is built to the southern boundary, it is sited to enable existing and future buildings to be well separated from each other.  He explains that the proposed development is in a District centre with active ground level street frontages.  He says that in a centre such as this, it is common for commercial buildings to be built to side boundaries.  The existing house to the south accommodates, in part, a commercial use and is set back three metres from the side boundary.  Mr Olsson regards the three-metre separation between the two-storey commercial building and the proposed built form as acceptable for three reasons.  First, the proposed development contains appropriate steps and transitions.  He says that the stepped-down built form at the boundary assists in making an acceptable transition that is in line with development expectations.  Second, the adjoining land use are compatible.  Third, there is tall and dense planting along the boundary between 78b Merthyr Road and the subject land.[236]
  5. [230]
    In addition, Mr Olsson opines that the wall on the boundary does not inhibit the future development potential of the adjoining site.  He opines that there are several future designs options available.  He explained the basis of his opinion.[237]  Mr Olsson is an experienced architect, and this aspect of his evidence was not challenged.
  1. [231]
    Mr Powell also opines that there is compliance with performance outcome PO1(e) of the New Farm and Teneriffe Hill neighbourhood plan code.  His opinion is premised on three matters. 
  2. [232]
    First, the characteristics of the development at 78b Merthyr Road are such that the separation to the third-storey face of the building to the west is between 4.5 metres and 5 metres.  In addition, that building looks out toward screening trees installed on its land.  Mr Powell’s evidence in this regard is supported by the annotated photograph included as Figure NP5 in the Joint Experts’ Report – Visual Amenity and Architecture.[238] 
  3. [233]
    Second, the characteristics of the development at 78 Merthyr Road are such that the separation to the two-storey mixed use building to the southwest is approximately three metres, which is occupied by an existing driveway.  The ground level of the building is predominantly used for car parking.  Four of the six bedrooms on the second storey are located on the opposite side of the building.  The entry and the fifth bedroom are on the side of the building proximate the subject land but employ fixed screening or translucent glass windows, and the rear deck of the two-storey mixed use building appears to be utilised for a washing line.  Mr Powell’s evidence in this regard is supported by the annotated photograph included as Figure NP5 in the Joint Experts’ Report – Visual Amenity and Architecture and the plans for the development at 78 Merthyr Road, which are included as Figure NP6 in the Joint Experts’ Report – Visual Amenity and Architecture.[239]
  4. [234]
    Third, there are no impacts in relation to overlooking and no unreasonable overshadowing impacts in relation to height and side setbacks.[240] 
  1. [235]
    During cross-examination, in response to a suggestion that the neighbours at 78 Merthyr Road would not appreciate the upper floor setbacks and would be confronted with a wall, Mr Powell reiterated the limited extent to which the development overlooked the subject land.  He also explained that, to the extent that there are windows that face the subject land, the current view from those windows is of the rooftop plant of the existing building.  Mr Powell described that current amenity as poor.  He opines that it will be improved, particularly if there is moderation of the colours and treatments on the adjoining wall.  He also explained that if the occupants looked up out of the window, they would see planters on level 2; and if the occupants looked down their driveway, they would look straight towards the one-storey frontage of the proposed development and the proposed planter at that location.  He says the occupants will have access to direct and natural light.  Overall, Mr Powell opines that will be an improvement to the existing amenity.[241]
  2. [236]
    Dr McGowan agrees with Mr Powell.[242]
  1. [237]
    Mr Buckley and Mr Buhmann disagree with the views expressed by Mr Schomburk about the potential adverse impact on development potential. 
  2. [238]
    Mr Buckley considers that a level of protection is afforded to the existing three-metre-wide separation of built form at 78 Merthyr Road from the common boundary with the subject land by a trafficable easement.[243]  His opinion was unchallenged.  It is consistent with the Smartmap, which shows the subject lots to the south.[244]
  1. [239]
    Mr Buhmann opines that the potential to redevelop the adjoining site for a multiple dwelling would not be disadvantaged by the proposed development’s use of built to boundary walls over levels 1 and 2.  He explains that development can adapt to suit local site circumstances.  He illustrates his point by reference to acceptable outcome AO13.3 of the Multiple dwelling code, which states:

“Development may incorporate a built to boundary wall which exceeds the maximum length stated in AO13.2 to match the extent of an abutting and lawfully constructed built to boundary wall on an adjoining premises.”

  1. [240]
    Mr Buhmann’s opinion was unchallenged.
  1. [241]
    I prefer the evidence of Mr Powell to that of Mr Curtis.  Mr Powell provided cogent explanations that were supported by photographs and details of the proposed development as depicted on the plans.  I also accept the evidence of Mr Olsson and Dr McGowan.  They likewise provided cogent explanations for their opinions.
  2. [242]
    I do not accept the evidence of Mr Schomburgk.  Assuming for the moment that the land at 78 Merthyr Road is ripe for redevelopment, I do not accept that the redevelopment of that site would be unlikely to retain a three-metre-wide separation between any new built form and the boundary of the subject land.  As was noted by Mr Buckley, that part of the land provides the only means of access to the multiple dwelling building located at 78A Merthyr Road.[245]  I also accept the evidence of Mr Buhmann and Mr Olsson on the absence of prejudice to redevelopment.  Their evidence persuades me that the proposed development would not prejudice the development potential of the adjoining land.
  3. [243]
    I am satisfied that the proposed development is sited to enable existing and future buildings to be well separated from each other and will avoid affecting the potential development of an adjoining site.

Will the proposed development avoid adverse amenity impact to adjoining development and improve the amenity of the New Farm and Teneriffe Hill neighbourhood plan area?

  1. [244]
    The Appellants allege that the proposed development is inconsistent with performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code because it does not improve the amenity of the neighbourhood plan area.[246]  Despite maintaining the allegation, the Appellants provided no assistance about it in their written submissions. 
  2. [245]
    I have already found that the proposed development will:
    1. (a)
      sensitively transition to the adjoining land in the Low-medium density residential zone;
    2. (b)
      complement the surrounding residential area;
    3. (c)
      be consistent with the amenity and character intended for the Mixed use centre precinct of the New Farm and Teneriffe Hill neighbourhood plan area;
    4. (d)
      be of human scale;
    5. (e)
      reflect the pedestrian nature and scale of the locality;
    6. (f)
      create a consistent and cohesive streetscape and built form;
    7. (g)
      respect, contribute to, and reflect the existing heritage character, grain, style, and sense of place of New Farm;
    8. (h)
      retain an appropriate visual relationship with adjoining residential precincts;
    9. (i)
      reflect the scale of the locality;
    10. (j)
      be consistent with existing small-scale development;
    11. (k)
      enable existing and future buildings to be well separated from each other; and
    12. (l)
      avoid affecting the potential development of an adjoining site.
  3. [246]
    In addition, as I have already indicated above, I accept the evidence of Mr Powell to which I refer in paragraphs [231] to [235] above. 
  4. [247]
    In the Joint Experts’ Report – Visual Amenity and Architecture, Mr Powell opines that the proposed development will improve the amenity of the neighbourhood plan area.  It will replace a dated, and partially disused, single-storey commercial building that has expansive rooftop plant presently visible to adjoining residential neighbours with an attractive and modern, predominantly three-storey, building with elevated podium planters and articulation on its upper levels where it interfaces with residential users.  He explains that the blank walls on the boundary are predominantly limited to the lower levels, closer to the interfaces with driveways and commercial carparks.
  1. [248]
    During cross-examination, Mr Powell further explained this opinion.  He says that the attractive components of the proposed development are not only attractive to the users.  Rather, the proposed development incorporates elements that reflect onto the street, such as the podium planters that are facing outwards.  They will be enjoyed by people passing by on the street.[247]
  2. [249]
    I accept Mr Powell’s opinion.  It is supported by cogent reasoning that accords with what is depicted in the plans.
  3. [250]
    Having regard to the matters identified above, I am satisfied that the proposed development is of a height, scale and form that improves the amenity of the neighbourhood plan area and is designed to avoid a significant and undue adverse amenity impact to adjoining development.

Is the proposed development, and its uses, small-scale?

  1. [251]
    The Appellants allege that the proposed development is contrary to the overall outcome in s 7.2.14.1.2 7.b. and performance outcome PO18 of the New Farm and Teneriffe Hill neighbourhood plan code.  They allege that the proposed ground floor tenancies are too large and have the potential to be utilised as a single tenancy.  They say both those outcomes being inconsistent with City Plan’s intention for small-scale commercial uses in the Mixed use centre precinct of the New Farm and Teneriffe Hill neighbourhood plan code.[248] 
  2. [252]
    The Appellants submit that the issue in these assessment benchmarks relates to ensuring there is a scale that contributes to the character, grain and streetscape of the Mixed use centre precinct of the New Farm and Teneriffe Hill neighbourhood plan code.[249]  In support of their submission, the Appellants refer to Mr Buckley’s evidence. 
  3. [253]
    Mr Buckley says that he considers that the character anticipated and created by provisions such as the overall outcome in s 7.2.14.1.2 7.b. of the New Farm and Teneriffe Hill neighbourhood plan code are more a function of the shop frontage proportions than the gross floor area itself.  He says that this is because shop fronts create the pattern or rhythm appreciated by those passing by and add to or complement character.  Mr Buckley considers the Brunswick Street frontages of the proposed tenancies to be entirely consistent with the intent of the City Plan provisions, and existing local development patterns.  He says that the longer frontage of the tenancy facing Merthyr Road is unlikely to cause any visual or functional detriment as it is less than the length of the long shop frontage of the corner building immediately opposite.
  4. [254]
    During cross-examination, Mr Buhmann agreed with the views expressed by Mr Buckley.  He said that it is preferable that there are two ground-floor tenancies to complement the character of surrounding ground-floor commercial uses.[250] 
  5. [255]
    I am not persuaded that the purpose of the assessment benchmarks is to achieve a development that contributes to the existing character, grain, and streetscape of New Farm.  Rather, it seems to me that the intent is to ensure that there are limited tenancy sizes so that a greater range of retail, commercial and community services and facilities can be provided to the residents of New Farm and the surrounding area.  This alternative construction is supported by four matters of context. 
  6. [256]
    First, the construction is supported by reading the entire overall outcome in s 7.2.14.1.2 7.b. of the New Farm and Teneriffe Hill neighbourhood plan code.  It requires:

“Proposals include small-scale uses with limited tenancy sizes while providing a variety of tenancy types.”

(emphasis added)

  1. [257]
    Second, the construction is supported by performance outcome PO18 of the New Farm and Teneriffe Hill neighbourhood plan code, including the related note, which state:

“Development is of a small scale and provides a diverse range of services.

Note—Alternative tenancy sizes to that prescribed are appropriate where a new facility serving local community needs requires a larger space.”

(emphasis added)

  1. [258]
    Third, the construction is consistent with the overall outcome in s 7.2.14.1.2 7.c. of the New Farm and Teneriffe Hill neighbourhood plan code, which states:

“Larger tenancy sizes are appropriate where involving a new community facility to service the needs of local residents.”

  1. [259]
    Fourth, the construction is supported by the overall outcome in s 7.2.14.1.2 7.e. of the New Farm and Teneriffe Hill neighbourhood plan code, which states:

“Development in the Brunswick Street and Merthyr Road sub-precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-004b):

i. ensures that it remains the primary neighbourhood centre providing a range of retailing, commercial and community services and facilities for the residents of New Farm and the surrounding area.”

  1. [260]
    Regardless of the proper construction of the assessment benchmarks, I am satisfied that the proposed development complies with them.  The plans of the proposed development depict two ground floor tenancies that have a combined gross floor area of 410 square metres.  Although the plans include an annotation that the inter-tenancy wall shown is “indicative”, no such annotation is included with respect to the provision of two tenancies.[251]  As such, I regard the proposed development as one that seeks approval for two commercial tenancies on the ground floor.
  2. [261]
    The Appellants submit that, absent conditions preventing the utilisation of the ground floor premises as a single commercial tenancy, there could be a single 410 square metre shop, office or food and drink outlet.  They submit that this would appear to be inconsistent with the New Farm and Teneriffe Hill neighbourhood plan code provisions that require smaller tenancies to be consistent with the character of the Mixed-use centre precinct.  They say that this issue, of itself, does not warrant refusal of the proposed development.  However, they say that the delivery of a single 410 square metre tenancy, such as an IGA grocery store, addressing the two street frontages would be inconsistent with the surrounding tenancy mix.  They submit that this is a matter that would tend towards refusal of the proposed development.[252]
  1. [262]
    I do not accept that there is a realistic prospect that the subject land would be developed for a single commercial tenancy of 410 square metre were the proposed development to be approved for two reasons.
  1. [263]
    First, there is evidence before me that indicates an intention to let one of the ground floor tenancies for an Italian restaurant and bar, bakery and gelateria.  That use is intended to have an area of 271 square metres.[253]
  1. [264]
    Second, and in any event, were the proposed development to be approved, I would expect that it would be subject to a condition requiring the proposed development to be maintained in accordance with the approved drawings and documents.  Such a condition is typical in development permits of this kind.  The Co-respondents indicated during submissions that there was no opposition to such a condition.[254]  In those circumstances, the provision of two ground floor commercial tenancies would be assured.  To the extent that there may be doubt about such matters, it could be addressed by the imposition of a condition requiring the provision of two commercial tenancies on the ground floor. 
  1. [265]
    I am satisfied that the proposed development includes small-scale uses with limited tenancy sizes on the ground floor.  I am also satisfied that the larger tenancy size of the childcare centre is appropriate as it would facilitate a new community facility to service the needs of local residents.[255]  The provision of the commercial tenancies on the ground floor in conjunction with the childcare centre tenancy above also ensures that the proposed development will provide a variety of tenancy types and a diverse range of services.

Conclusion about whether the proposed development has an appropriate height, bulk, scale, and form

  1. [266]
    For the reasons provided above, I am satisfied that the height, bulk, scale, and form of the proposed development is appropriate and that the proposed development complies with:
    1. (a)
      the overall outcomes in ss 6.2.2.3 5.b. and c. and 6.a. and c. of the District centre zone code; and
    2. (b)
      the overall outcomes in ss 7.2.14.1.2 3.b., f., m. and 7.b. and performance outcomes PO1, PO12, PO13 and PO18 of the New Farm and Teneriffe Hill neighbourhood plan code.

Is the proposed landscaping outcome appropriate for a childcare centre?

  1. [267]
    The Appellants allege that the proposed development is inconsistent with performance outcomes PO4, PO5, and PO6 of the Childcare centre code because there is no landscaping or deep planting that can be appreciated or practically utilised by children.[256]  The Appellants do not contend that this issue alone would warrant refusal of the proposed development.  However, they say it is relevant that City Plan identifies, at the performance outcome level, a requirement for childcare centres to have meaningful deep planting and landscaping.  They say that the failure to comply with this requirement is a matter that would, in combination with other matters, tend toward refusal of the proposed development.
  2. [268]
    Performance outcomes PO4, PO5, and PO6 of the Childcare centre code and their associated acceptable outcomes state:

Performance outcomes

Acceptable outcomes

PO4

Development incorporates deep planting that:

  1. a.
    is open to the sky with access to light and rainfall;
  2. b.
    is established in the natural ground with no underground development;
  3. c.
    uses large subtropical tree species that at maturity are complementary in scale and height to the building form;
  4. d.
    balances hardstand areas and provides shade and informal recreation spaces that are directly accessible from building tenancies or the street frontage.

AO4.1

Development has a development footprint that allows a minimum of 10% of the site to be provided for deep planting with a minimum dimension of 4m in any direction.

AO4.2

Development ensures that if deep planting is provided in different parts of the site, each deep planting area has a minimum area of 25m2.

AO4.3

Development incorporates trees in deep planting areas that:

  1. a.
    have a minimum height of 4m and a 3m spread at the time of planting
  2. b.
    are capable of growing to a minimum canopy diameter of 8m and a minimum height of 15m within 5 years of planting;
  3. c.
    are subtropical tree species consistent with the Planting species planning scheme policy.

PO5

Development ensures that deep planting areas are positioned to maximise existing site features.

AO5.1

Development ensures that deep planting is located to retain and surround any existing large trees on site.

AO5.2

Development has deep planting that is co-located with existing deep planting or existing large trees on adjoining sites to create contiguous deep-planting areas.

PO6

Development has a landscape design that contributes positively to the subtropical character, amenity and microclimate of the site, maximising passive cooling and heating within the site.

AO6

Development has a minimum of 25% of all trees capable of growing above the height of the eaves of the building at maturity.

  1. [269]
    The proposed development will:
    1. (a)
      retain five established street trees, which contribute to the landscaped presentation of the frontage;
    2. (b)
      remove one street tree and reinstate it in a new location clear of the driveway; and
    3. (c)
      provide 123.45 square metres of containerised planting on the second and third storeys (levels 1 and 2) at locations around the building’s perimeter, including immediately adjoining the outdoor playscapes.[257]
  2. [270]
    With respect to whether this landscaping complies with the assessment benchmarks, the Appellants rely on the evidence of Mr Curtis.  He opines that the 123.45 square metres of containerised planting will make a limited contribution to the softening of the proposed development’s appearance.  He also says that it will not make a meaningful contribution to the subtropical character, amenity, and microclimate of the subject land, or maximise passive cooling and heating within the subject land to satisfy performance outcome PO6.
  3. [271]
    I do not accept Mr Curtis’ evidence.  As he acknowledged during cross-examination, he is not a qualified landscape architect.[258]  Further, as he observes in the Joint Experts’ Report – Visual Amenity and Architecture, he defers to the opinions of Mr Powell and Dr McGowan about the species and sizes of plants that could reasonably be established in the proposed plant containers.[259]  Given Mr Curtis is unaware of the species and sizes of plants that could reasonably be established in the proposed plant containers, I am not confident of the foundation of his opinion about the contribution that will be made by the landscaping.  Mr Curtis did not reveal his foundation assumptions, nor did he provide any cogent explanation for his opinion.
  4. [272]
    The Co-respondents accept that the proposed development does not satisfy the applicable acceptable outcomes and that there is no deep planting as required by performance outcomes PO5 and PO6.  Nevertheless, they say that the proposed development provides an appropriate landscaping outcome.  In that respect, they rely on the evidence of Mr Powell and Dr McGowan, both of whom are experienced landscape architects. 
  5. [273]
    Mr Powell explains that the proposed development provides a deep soil area at the corner of the intersection to accommodate an existing palm tree within the verge.  The proposed development will also provide additional landscaping within the subject land but will not provide a deep planting area on site to accommodate an additional tree.  Despite that, Mr Powell considers the non-compliance with performance outcome PO4 to be technical in nature for three reasons. 
  6. [274]
    First, five established street trees which contribute to the frontage will be retained and one will be removed and reinstated in a new location clear of driveways.  Second, the proposed development will accommodate substantial podium planting extending behind those street trees.  Mr Powell says that this will enhance the appreciation of a visual connection between built form and landscape that will be gained by passers-by.  Third, by providing elevated planters immediately adjoining the outdoor playscapes, the proposed development will provide landscaping that can be appreciated by the children.[260]
  7. [275]
    With respect to performance outcome PO5 of the Childcare centre code, and the associated acceptable outcomes, Mr Powell says that the subject land presently does not contain any landscape of significance.  There are no existing large trees on the subject land.  The primary landscape features for the subject land are presently located within the road reserve.  The large trees that exist within the verge are to be retained or reinstated, including via provision of a deep soil area adjacent to the existing palm tree at the corner.[261]
  8. [276]
    Mr Powell opines that the proposed development complies with performance outcome PO6 of the Childcare centre code for the reasons noted in paragraph [273] above.[262]
  9. [277]
    Dr McGowan agrees with Mr Powell.[263]
  10. [278]
    I accept the evidence of Mr Powell and Dr McGowan.  Their opinions accord with the landscape plans, which show a substantial volume of planting achieved in containers at ground level and at levels 1 and 2.[264]  The existing substantial street trees that are to be retained are evident in the photographs. 
  11. [279]
    The non-compliance with performance outcomes PO4 and PO5 of the Childcare centre code by reason of the absence of deep planting on site is a matter deserving of weight.  It tells against approval. 
  12. [280]
    That said, in my view, the noncompliance is not so significant as to, of itself, warrant refusal of the development for four reasons.  First, the proposed landscaping outcome is a substantial improvement to that which exists at present.[265]  Second, the proposed landscaping complements the character of the area.  Substantial street trees are a feature of the locality and the retention of them is a matter of significance.  Third, I accept the evidence of Mr Powell that the design of the landscaping will enhance the public’s appreciation of a visual connection between built form and landscape.  This is a positive matter.  Fourth, I accept the evidence of Mr Powell that by providing elevated planters immediately adjoining the outdoor playscapes, the proposed development will provide landscaping that can be appreciated by the children.  Slavish adherence to the performance outcomes, and no more, is unlikely to have achieved this landscape benefit, particularly given the requirement in performance outcome PO4 that only encourages deep planting that is established in the natural ground with no underground development.
  13. [281]
    For the reasons provided above, I am satisfied that the proposed development incorporates a landscaping outcome that is appropriate in the context.

Will the proposed development result in adverse carparking impacts?

  1. [282]
    The Appellants allege that the proposed development is inconsistent with the overall outcome in s 9.4.11.2 2.j.ii and performance outcomes PO13 and PO14 of the Transport, access, parking and servicing code because it does not provide sufficient on-site car parking spaces to accommodate the design peak parking demand for the proposed uses.  The Appellants allege that the proposed development will result in adverse impacts on the locality as customers will be compelled to attempt to find on-street parking or use other car parking sites at nearby developments.[266]
  2. [283]
    The overall outcome relied on the by the Appellants relevantly states:

“j. Development provides for on-site parking and manoeuvring areas for cars, motorcycles, bicycles and service vehicles which:

ii. if outside the City core and the City frame identified in Figure a are adequate to meet the design peak-parking demands without significant overflow to adjacent premises or the generation of excessive on-street car parking demand, taking into account the requirements of other road users.”

  1. [284]
    Performance outcomes PO13 and PO14 of the Transport, access, parking and servicing code and their associated acceptable outcomes state:

Performance outcomes

Acceptable outcomes

PO13

Development outside of the City core and City frame as identified in Figure a provides on-site car parking spaces to accommodate the design peak parking demand without any overflow of car parking to an adjacent premises or adjacent street.

AO13

Development outside of the City core and City frame as identified in Figure a:

  1. a.
    provides on-site car parking spaces in compliance with the standards in the Transport, access, parking and servicing planning scheme policy; or
  2. b.
    for accepted development subject to compliance with identified requirements, does not result in on-street car parking if no parking standard is identified in the Transport, access, parking and servicing planning scheme policy.

Note—For accepted development subject to compliance with identified requirements including an existing premises, no reduction to existing car parking is required to comply with a maximum car-parking rate in the Transport, access, parking and servicing planning scheme policy.

PO14

Development ensures that the number of car parking spaces and design of the car parking area:

  1. a.
    meet the combined design peak parking demand for residential, visitor and business parking;
  2. b.
    allow for the temporal sharing of car-parking spaces for users with different peak parking demands.

Note—In order to demonstrate that adequate car parking is provided, a traffic impact assessment prepared in compliance with the Transport, access, parking and servicing planning scheme policy is to identify the appropriate number of car parking spaces to be provided.

AO14.1

Development provides a number of car parking spaces on site equalling the sum of the maximum design peak parking demand for the individual uses at any point in time.

AO14.2

Development involving mixed use provides a non-residential car parking area with shared parking for all the businesses in the development.

  1. [285]
    The subject land is outside of the City core and City frame as identified in Figure a.[267]
  2. [286]
    One means of demonstrating compliance with performance outcome PO13 is by demonstrating compliance with the acceptable outcome.  The relevant car parking standards for acceptable outcome AO13 of the Transport, access, parking and servicing code are stated in ss 6 and 7 of the Transport, access, parking and servicing planning scheme policy.[268]
  3. [287]
    Section 6 of the Transport, access, parking and servicing planning scheme policy states:

“Standards for the provision of car parking for common uses are shown in Table 13 and Table 14.  For the purposes of these standards:

a. Table 13 is to be read before Table 14;

b. the term car space means adequate space for the parking of a medium car, together with provision for access to such space;

c. the number shown in Table 13 or Table 14 is the minimum provision unless indicated otherwise in the table;

d. if the number of parking spaces calculated in accordance with Table 13 or Table 14 is not a whole number, then the number of spaces provided is the whole number next above the calculated number. Visitor spaces are calculated and rounded up separately;

e. if a rate of car parking is not defined in Table 13 or Table 14, the applicant is responsible for providing evidence in support of the amount of car parking proposed;

f. in car parks with more than 50 spaces, 2% of the number of spaces required to comply with the requirements of Table 13 and Table 14 are provided as marked and signed spaces for motorcycles, each measuring 2.5m by 1.35m, located immediately adjacent to major pedestrian access points;

g. parking spaces for vehicle occupants with a disability are provided at a rate of 1 space per 50 ordinary parking spaces and a minimum provision of 1 space is required;

h. for accepted development subject to compliance with identified requirements, if no parking standard is provided in Table 13 or Table 14, no additional parking is required.”[269]

  1. [288]
    Table 13 is titled “Car parking standards in specific cases” and includes the following entry of interest:[270]

Use and specific location

Parking standard

Centre activities activity group where in a Principal centre zone, Major centre zone, District centre zone, Neighbourhood centre zone or Mixed use zone

Minimum 5 spaces per 100m2 gross floor area on all levels accessible at-grade from a public street or an on-site car parking area, plus 3 spaces per 100m2 gross floor area on other levels

  1. [289]
    Table 14 is titled “Car parking standards in all other cases” and includes the following entries of interest:[271]

Use

Parking standard

Childcare centre

1 space per 5 children

60% of these spaces are for staff and can be provided in tandem

Food and drink outlet, if less than 400m gross floor area, where not in the Open space zone, Sport and recreation zone or Conservation zone

12 spaces per 100m2 gross floor area and outdoor dining area

Food and drink outlet, if 400m or greater gross floor area

30 spaces plus 5 spaces per 100m2 gross floor area and outdoor dining area

Office

3 spaces per 100m2 gross floor area

Shop

5 spaces per 100m2 gross floor area

  1. [290]
    It seems to me that the applicable standard, for the purpose of acceptable outcome AO13 is contained in Table 13, rather than Table 14, as each of the proposed uses falls within the defined Centre activities activity group.[272]  Whether that is correct is of no consequence as it is common ground between the parties that the proposed development does not comply with acceptable outcome AO13. 
  2. [291]
    In this case, the Appellants’ allegations call for the following factual determinations about the design of the proposed development:
  1. Does the proposed development meet the design peak parking demand?
  2. Is there an unacceptable impact occasioned by a failure to meet the design peak parking demand on the subject land?
  1. [292]
    To assist me with the determination of these issues, I had the benefit of, amongst other evidence:
    1. (a)
      the plans of the proposed development,[273] which depict, amongst other things, the design of the car parking area and the number of car parks proposed to be provided;
    2. (b)
      photographs of available street parking in the local area;[274] and
    3. (c)
      expert evidence with respect to traffic engineering given by Mr Douglas, Mr Holland and Mr Pekol, the traffic engineers retained by the Co-respondents, the Council, and the Appellants respectively.[275]

Does the proposed development meet the design peak parking demand?

  1. [293]
    As I have already mentioned, the Transport, access, parking and servicing planning scheme policy provides standards for the provision of car parking for common uses.  For performance outcome PO13 of the Transport, access, parking and servicing code, they are called up as an acceptable outcome only.  As such, compliance with the standard is not mandatory.[276]
  2. [294]
    The standard is also relevant to the note to performance outcome PO14 of the Transport, access, parking and servicing code, as is s 2 of the Transport, access, parking and servicing planning scheme policy.[277]
  3. [295]
    Section 2 of the Transport, access, parking and servicing planning scheme policy provides guidance about the matters to be addressed in a traffic impact assessment report (such as that called for by the note to performance outcome PO14 of the Transport, access, parking and servicing code).  It calls for the report to be prepared by an experienced traffic engineer who is a Registered Professional Engineer Queensland.[278]  Amongst other things, the report is to include:
    1. (a)
      a statement describing how the development will facilitate walking and cycling and greater use of public transport in preference to using private motor vehicles for trips to and from the development;
    2. (b)
      an assessment of existing parking supply and demand in the vicinity of the development for both on- and off-street parking, and an assessment of the impact of the development on this parking supply and demand;
    3. (c)
      a statement describing the appropriate provision for parking in the development based on land use and the potential for trip-making by public transport, or by walking and cycling; and
    4. (d)
      a statement describing how traffic generation and parking proposed rates (based on gross floor area) are supported by reference to publicly available documents or attaching actual traffic survey data for a similar activity.
  1. [296]
    As is apparent from the matters referred to above, City Plan does not define design peak parking demand by reference to set numerical standards.  Rather, the criteria call for a value judgment to be made having regard to the circumstances that apply to the development in question, including the mix of land uses proposed, the potential for trip making by public transport or by walking and cycling, and the existing parking supply and demand in the vicinity of the development for both on- and off-street parking.
  1. [297]
    The proposed development provides for 37 car parking spaces, one of which is described as a “small car” space and three of which are provided in tandem with other car parking spaces. 
  2. [298]
    All the traffic engineers agree that the peak parking demand for the childcare centre is unlikely to coincide with the peak parking demand for the ground floor commercial uses.  As such, they agree that the peak parking demand for the proposed development is less than the aggregate of the standards for each use ascribed in the Transport, access, parking and servicing planning scheme policy.[279]  However, there is disagreement between the traffic engineers about whether the proposed development provides sufficient car parks to accommodate the design peak parking demand without any overflow of car parking to an adjacent premises or adjacent street. 
  1. [299]
    Mr Pekol opines that the provision of 37 car parks in the proposed development is insufficient.  He says that the level of the peak parking demand generated by the proposed development will vary based on the use of the 410 square metres of commercial space.  In his opinion, the peak parking demand will be:
    1. (a)
      36 spaces for the childcare centre and 410 square metres of food and drink outlets;
    2. (b)
      42 spaces for the childcare centre and 410 square metres of shop; and
    3. (c)
      44 spaces for the childcare centre and 410 square metres of office.[280]
  1. [300]
    Mr Pekol also opines that the timing of the proposed development’s peak parking demand will vary, depending on the mix of uses in the commercial space, but generally he expects the peak will occur mid-morning, around 9 to 9.30.[281]
  2. [301]
    Mr Pekol provides a summary of his calculations with respect to the timing and extent of the shortfall in Table 1 of his individual report.  His calculations in that Table assume that:
    1. (a)
      the peak parking demand for the childcare centre is very unlikely to coincide with the peak parking demands generated by the shop, food and drink and office uses;
    2. (b)
      childcare centre parking typically peaks in the early morning and mid-late afternoon;
    3. (c)
      food related businesses generate peak parking demands around mealtimes; and
    4. (d)
      retail uses tend to generate peak customer visitation during the middle of the day.[282]
  3. [302]
    Mr Pekol provides further detail that underpins the summary at Appendix B of his report, where he provides details of temporal variation in peak parking demands for each of the uses.  His opinions with respect to the temporal variations were based on surveys undertaken at different locations in Queensland.[283]  In his report, Mr Pekol did not disclose the base survey data on which he relied, nor did he provide identifying details about the location of the uses the subject of the surveys. 
  4. [303]
    There are two aspects of Mr Pekol’s evidence that leave me unpersuaded about the reliability of his professional judgment that the proposed development will not provide sufficient car parks to accommodate the design peak parking demand on-site.
  5. [304]
    The first relates to Mr Pekol’s failure to allow for the potential for trip-making by walking.  The proposed development is surrounded by higher density living and commercial developments.  It is also within 200 metres of the Holy Spirit Primary School.  In addition, the subject land is in an area that is characterised by a traditional grid network with relatively flat topography and, as such, is in a “walkable” area.[284]  In those circumstances, it is reasonable to expect a proportion of users of the proposed development would walk to and from the proposed development. 
  6. [305]
    The reasonableness of that expectation is supported by the provisions of the New Farm and Teneriffe Hill neighbourhood plan code, which indicate that pedestrian connectivity and accessibility in the New Farm and Teneriffe Hill neighbourhood plan area are encouraged and are likely to improve over time.  Relevant provisions include:
    1. (a)
      the overall outcome in s 7.2.14.1.2 3.d. of the New Farm and Teneriffe Hill neighbourhood plan code requires:

“Safe, comfortable and convenient accesses within, to and from New Farm and Teneriffe Hill is provided for pedestrians, cyclists and people with disabilities, including along major traffic routes such as Brunswick Street”[285]

  1. (b)
    the overall outcomes in ss 7.2.14.1.2 3.i. and j. of the New Farm and Teneriffe Hill neighbourhood plan code require public spaces to be improved by pedestrian links and defined by development that maximises casual surveillance;[286]
  2. (c)
    the overall outcome in s 7.2.14.1.2 3.k. of the New Farm and Teneriffe Hill neighbourhood plan code requires the amalgamation of sites to provide benefit to the community by providing improved pedestrian linkages;[287] and
  3. (d)
    performance outcome PO15 of the New Farm and Teneriffe Hill neighbourhood plan code requires that development provide for pedestrian protection and comfort.[288]
  1. [306]
    In addition, the proposed development’s location in the New Farm district centre would likely result in less car parking demand as compared to the location of such uses at other location spread out across the city.[289]
  2. [307]
    The above matters suggest to me that Mr Pekol’s assessment of peak parking demand is overstated. 
  3. [308]
    My second concern relates to the data on which Mr Pekol based his temporal demand analysis.  Mr Pekol’s failure to provide the base data and to disclose the locations of the uses the subject of the surveys in his individual report prevented Mr Douglas and Mr Holland properly interrogating his analysis.  It hampered the ability of the parties to test his analysis.[290]  In addition, the Appellants did not prove the data.  This left me unable to assess the reliability of the opinions Mr Pekol formed based on that data in circumstances where, in his evidence in chief, Mr Pekol acknowledged that there are weaknesses in each of his selected data sources in terms of the comparability of the situation surveyed to that which pertains in this case.[291]  The potential extent of the weaknesses were highlighted during Mr Pekol’s cross-examination.[292]  Although Mr Pekol’s hope was that the weaknesses in the individual data sets would balance out by aggregating the data, without the individual data sets it is not possible to interrogate whether the aggregation ameliorates or exacerbates the data sets’ individual weaknesses.
  1. [309]
    Turning then to the other evidence, Mr Douglas and Mr Holland each opine that the proposed development will provide sufficient car parks to accommodate the design peak parking demand without any overflow of car parking to an adjacent premises or streets. 
  2. [310]
    All the traffic engineers agree that the peak parking demands generated by the childcare centre are unlikely to coincide with the uses proposed for the ground floor tenancies.[293]  Mr Douglas, with whom Mr Holland agreed, further explained that childcare centre peak parking demand typically occurs in the early morning and mid-late afternoon.  That is because child drop-off tends to occur in the morning before school starting or on the way to work and children pick-up tends to occur after school or on the way home from work.  Mr Douglas opines that between the drop-off and pick-up periods, very little demand will likely be generated by parents and caregivers.[294]  This can be contrasted with peak parking demands for food and drink outlets and shops.  Mr Douglas and Mr Holland opine that those uses are likely to generate peak parking demands around mealtimes and during the middle of the day respectively.[295]
  3. [311]
    Mr Douglas explains that 15 parking spaces would be allocated to the childcare centre staff during its trading hours (i.e., between 6.30 am and 7 pm on weekdays), leaving 22 parking spaces available during those hours for the ground floor tenancies uses and the children pick-up and drop-off for the childcare centre.  Outside the peak parking demand times for the childcare centre, there will be up to 22 parking spaces available for the ground floor tenancies uses, which Mr Douglas and Mr Holland say is adequate to accommodate the parking demand generated by the ground floor tenancies uses, in circumstances where:
    1. (a)
      the standard in Table 13 of the Transport, access, parking and servicing planning scheme policy is a minimum of five spaces per 100 square metres of gross floor area where the development is in the District centre zone, which equates to 21 parking spaces for the ground floor tenancies; and
    2. (b)
      Table 14 of the Transport, access, parking and servicing planning scheme policy has a standard of three spaces per 100 square metres of gross floor area for an office, which equates to 13 parking spaces if the entire ground floor is used for office uses.
  4. [312]
    Mr Douglas’ opinion that the proposed development provides sufficient on-site car parks is also premised on his carparking demand analysis in the locality, which he based on Google Analytics data, which Mr Douglas attached to his report.  Having regard to that data, Mr Douglas says the peak carparking demand for food and drink outlets largely occurs on weekends, during which time the childcare centre will be closed, and all the parking spaces will be made available for the food and drink outlet.  On weekdays, carparking demand for food and drink outlets tend to peak around lunchtime, during which time there will likely be no or very low numbers of parents or carers using the on-site carpark.  Those food and drink outlets in the area that trade more strongly during the morning and close early to mid-afternoon tend to be coffee shops.  Mr Douglas considers that it is reasonable to expect that a significant portion of the custom of coffee shops in the area would be walk in trade, particularly in the part of New Farm where the subject land is located.  Further, due to their typical operating hours, coffee shops do not tend to generate customers (or carparking demand) in the afternoon childcare pick-up period.  As for restaurants, Mr Douglas says the peak carparking demand in New Farm tends to occur on Friday and Saturday evenings.  Those that serve lunch will generate demand during times that the childcare centre will either be closed or outside of its peak period.[296] 
  5. [313]
    Mr Douglas opines that, as compared to food and drink outlets, shop and office uses are likely to attract a lower parking demand and a demand that is less likely to generate peaks.[297]  With respect to potential shop uses, Mr Douglas explains that given the location and size of those uses, they are unlikely to be a major destination.  Rather, they will be an ancillary destination, relying on walk-in trade from patrons visiting nearby uses in the District centre.  In addition, Mr Douglas says that small specialty retail stores in strip shopping areas are generally not significant generators of carparking demand.  Many of them do not open to customers until 9 am, or even 10 am, on weekdays.[298]  During weekdays, outside the peak parking demand times for the childcare centre, there will be up to 22 parking spaces made available for the ground floor tenancies, including any shop or office uses.  During weekends, the childcare centre will be closed, and all the parking spaces will be made available for the ground floor tenancies.
  6. [314]
    Mr Douglas and Mr Holland opine that it is reasonable to expect a proportion of users of the proposed development would walk to and from the proposed development.  The proposed development is in a “walkable” area, surrounded by higher density living and commercial developments and is within 200 metres of the Holy Spirit Primary School.  As is noted by Mr Douglas, most of the catchment for the proposed childcare centre identified by the economists is within one kilometre of the subject land, meaning many families who utilise the proposed development are likely to be within a flat, comfortable walking distance.  Mr Douglas explains that New Farm is far denser and more walkable than outer suburbs like Bracken Ridge and Taigum, Rochedale, Gumdale, and Bellbowrie, yet the same standard is set for all locations in the Transport, access, parking and servicing planning scheme policy.  Having regard to those circumstances, Mr Douglas opines that the peak parking demand for the proposed childcare centre is likely to be lower than the rate applied broadly across the Brisbane City Council local government area.[299] 
  7. [315]
    I accept the evidence of Mr Douglas and Mr Holland.  They provide cogent explanations in support of their opinions.  With respect to the Google Analytics data, in his report, Mr Douglas provides cogent explanations about the nature of the data on which he relies and which he appended to his report.  He also explains the limitations of the data, and the caution that he applied in interpretating the data given the limitations he identified. 
  8. [316]
    I am satisfied that the proposed 37 car parks are sufficient to meet the design peak parking demand.

Is there an unacceptable impact occasioned by a failure to meet the design peak parking demand on the subject land?

  1. [317]
    As I have noted above, I am satisfied that the proposed development meets the design peak parking demand on the subject land.  As such, it is unnecessary to address the alleged unacceptable impact in any detail.  It is sufficient to make the following brief observations about this issue.
  2. [318]
    Even if I were to accept Mr Pekol’s evidence about the duration and extent of the shortfall in on-site car parking, I do not accept Mr Pekol’s opinion that any shortfall on the subject land would sound in unacceptable consequences by reason of insufficient on-street parking supply.  Mr Pekol’s analysis of the on-street parking supply is overly conservative.  He limits his assessment of on-street parking to those car parks within 100 metres walking distance of the proposed pedestrian entry on Brunswick Street.  His count of the available on-street parking spaces within that 100-metre distance is overly conservative.  That is illustrated by the first sheet of Exhibit 8.11, which demonstrates that more than one car is capable of being parked in Area D on Hazel Street where Mr Pekol says only one parking space is available.  In addition, during cross-examination, Mr Pekol accepted that car parks within 200 metres of the proposed development would be within easy walking distance and that, taking that wider area, the number of available spaces would be at least double, if not quadruple, the supply assumed by him in his report.[300] 
  3. [319]
    In an apparent attempt to deflect attention from these concessions, the Appellants rely on Mr Pekol’s evidence that the proposed development would result in the removal of three on-street parking spaces.  The Appellants’ submissions present a skewed impression of the impact of the proposed redevelopment of the subject land.[301]  It ignores that the existing commercial development on the subject land has a gross floor area of about 700 square metres with no formal on-site car parking.  At best, the existing development provides the ability for a maximum of two to three staff vehicles to park on-site via a narrow, single lane driveway off Merthyr Road.[302]
  4. [320]
    Brunswick Street and Merthyr Road both accommodate on-street parking on both sides of the road.  That is evident from the photographs in evidence before me.[303]  There is also on-street parking provided in nearby streets, such as Hazel Street.[304] 
  5. [321]
    Having regard to Mr Pekol’s concessions during cross-examination and the photographs in evidence before me, I am satisfied that, were there a shortfall in on-site car parking, it would not result in any unacceptable impact. 

Conclusion about the car parking impact of the proposed development

  1. [322]
    For the reasons provided above, I am satisfied that the proposed development complies with the overall outcome in s 9.4.11.2 2.j.ii and performance outcomes PO13 and PO14 of the Transport, access, parking and servicing code.  Further, even if I were to adopt Mr Pekol’s evidence about the extent and duration of shortfall in on-site parking at its highest, I am satisfied that any resultant non-compliance would not sound in adverse consequences. 

Are the additional matters on which the parties rely “relevant matters” under s 45(5)(b) of the Planning Act 2016?

  1. [323]
    In the Further Amended Agreed List of Issues,[305] the parties identify those matters that they rely on under s 45(5)(b) of the Planning Act 2016 as follows:

“Relevant matters relied on by Appellants

  1. There is insufficient need for the scale of the proposed childcare centre in that the proposed development comprises a three-level childcare centre with 121 places, whereas there is only a need in the relevant New Farm locality for a childcare centre with 80-100 places.

Relevant matters relied on by Co-Respondents

  1. The proposed development complies with all of the assessment benchmarks with which the Appellants have alleged non-compliance.
  1. To the extent that the proposed development does not comply with any of the above assessment benchmarks, the proposed development can be conditioned to achieve compliance with those assessment benchmarks or the non-compliance with any assessment benchmark is of technical nature and does not call for refusal of the proposed development.
  1. There is a need for the proposed development.
  1. The proposed development involves appropriate and intended land uses for the District centre zone and the relevant precinct and sub-precinct of the New Farm and Teneriffe Hill neighbourhood plan in which the subject land is located.
  1. The proposed development will provide for the redevelopment of an underutilised site which is located at a prominent corner in New Farm.
  1. The proposed development is well located and sits comfortably with other local non-residential uses. The co-existence of the proposed development with those uses supports the efficiency of the development and the locality.
  1. The proposed development will provide residents of the locality with additional convenience and choice in childcare services.
  1. Approval of the proposed development is supported by the historical use of the subject land.
  1. The proposed development will add competition in the form of a new operator in a modern childcare facility.
  1. The proposed development is a modern, well designed childcare centre, with a contemporary built form that is complementary to the established New Farm character and style.”
  1. [324]
    I have already addressed many of these issues as part of my assessment of the development application against the assessment benchmarks and my consideration of the importance of the identified non-compliances.  Having regard to my findings above, I am not satisfied that there is compliance with all the assessment benchmarks with which the Appellants allege non-compliance.  As I have already identified, the proposed development does not comply with performance outcomes PO4 and PO5 of the Childcare centre code.  That said, I am satisfied that those non-compliances, although deserving of weight and telling against approval, are not so significant to, of themselves, warrant refusal of the proposed development.  Based on my findings above, I am also satisfied that the Co-respondents have established that the matter referred to in paragraph 17 of the Further Amended Agreed List of Issues is a relevant matter that supports approval of the proposed development.
  2. [325]
    The substantive issues that remain for consideration call for the following factual determinations:
  1. Are the proposed uses appropriate?
  2. Will the proposed development provide for the redevelopment of an underutilised site at a prominent corner in New Farm?
  3. Is the proposed development well-located?
  4. Does the historical use of the subject land lend support to approval?
  5. Is there a need for the proposed development?

Are the proposed uses appropriate?

  1. [326]
    The Co-respondents allege that the proposed development involves land uses that are appropriate to, and intended for, the District centre zone and the relevant precinct and sub-precinct of the New Farm and Teneriffe Hill neighbourhood plan area in which the subject land is located.  They rely on this as a relevant matter to support an approval.
  2. [327]
    This issue is uncontentious.  All the town planning experts agree that the location of the subject land is well suited for the proposed uses.[306] 
  3. [328]
    I am satisfied that this is a relevant matter that has been established on the evidence.  It is a relevant matter that supports approval.

Will the proposed development provide for the redevelopment of an underutilised site on a prominent corner in New Farm?

  1. [329]
    The Co-respondents allege that the proposed development will provide for the redevelopment of an underutilised site which is located at a prominent corner in New Farm.  They rely on this as a relevant matter to support an approval.
  2. [330]
    This issue is uncontentious.  The Appellants accept that there are benefits achieved by the redevelopment of a degraded and underutilised site such as the subject land.[307] 
  3. [331]
    One of the obvious benefits is the improved situation with respect to car parking.  This was acknowledged by Mr Pekol.[308]  As I have mentioned at paragraph [319] above, the existing commercial development on the subject land has a gross floor area of about 700 square metres with no formal on-site car parking and the ability for a maximum of two to three staff vehicles to park on-site via a narrow, single lane driveway off Merthyr Road.[309]  In comparison, the proposed development will provide 37 car parking spaces on-site. 
  4. [332]
    In addition, for the reasons provided in paragraphs [244] to [250] above, the proposed development will improve the amenity of the New Farm and Teneriffe Hill neighbourhood plan area.
  5. [333]
    I am satisfied that this is a relevant matter that has been established on the evidence.  It is a relevant matter that lends a degree of support to approval.

Is the proposed development well-located?

  1. [334]
    The Co-respondents allege that the proposed development is well located and sits comfortably with other local non-residential uses.  They allege that the co-existence of the proposed development with those uses supports the efficiency of the development and the locality.  They rely on these contentions as a relevant matter to support an approval.
  2. [335]
    In support of these allegations, the Co-respondents submit that the subject land is part of a well-established and vibrant District centre.  I accept that this is established on the evidence.[310]  The Co-respondents do not otherwise provide submissions of assistance with respect to this issue.  In the circumstances, it is not a matter on which I am prepared to place weight.

Does the historical use of the subject land lend support to approval?

  1. [336]
    The Co-respondents allege that approval of the proposed development is supported by the historical use of the subject land.  They rely on this as a relevant matter to support an approval.  In their submissions, they provide no meaningful assistance on this issue.
  2. [337]
    I accept that the lawful use of the subject land is a matter to which I must have regard.  While the building on the land is currently disused, there is no suggestion that the historical commercial use has been abandoned.  That said, I am not persuaded that this is a matter that by itself, as a separate consideration, lends any weight to approval.

Is there a need for the proposed development?

  1. [338]
    The Appellants and the Co-respondents each put need for the proposed development in issue, relying on it as a relevant matter. 
  2. [339]
    The existence of a need for the proposed development is relevant under s 45(5)(b) of the Planning Act.
  3. [340]
    The Appellants allege that there is insufficient need for the scale of the proposed childcare centre in that the proposed development comprises a three-level childcare centre with 121 places, whereas there is only a need in the relevant New Farm locality for a childcare centre with 80 to 100 places. 
  4. [341]
    The Co-respondents allege that there is a need for the proposed development.  They also allege that the proposed development will provide residents of the locality with additional convenience and choice in childcare services, and that the proposed development will add competition in the form of a new operator in a modern childcare facility.
  5. [342]
    The respective allegations raise three factual issues for determination, namely:
  1. Is there a need for the proposed childcare centre?
  2. Is there a need for the proposed development in its entirety?
  3. What is the significance of the need to the exercise of the discretion?
  1. [343]
    Before turning to those issues, it is useful to record the general principles that inform and guide an assessment of need.  They are well-settled.  They are conveniently summarised in Isgro v Gold Coast City Council & Anor.[311]  As His Honour Judge Wilson SC (as His Honour then was) stated:[312]

“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. [344]
    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.[313]  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.[314]  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.[315]
  2. [345]
    Recent guidance on the concept was also provided in Abeleda & Anor v Brisbane City Council & Anor,[316] wherein Mullins JA (as her Honour then was) observed:

“[51] The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”[317]

  1. [346]
    With those principles in mind, it is convenient to now turn to the relevant issues in this case.

Is there a need for the proposed childcare centre?

  1. [347]
    On the issue of need, I had the benefit of expert evidence from Mr Gavin Duane and Ms Kerrianne Meulman, the economists retained by the Co-respondents and the Appellants respectively.  Their evidence addressed both the quantitative and qualitative aspects of need. 
  2. [348]
    The economic experts agree that there is an economic and community need for additional childcare places in the New Farm area.  However, they ultimately disagree about the extent of the need.   In Mr Duane’s opinion, there is an economic and community need for the proposed development, which will offer 121 places.[318]  Ms Meulman opines that there is a level of economic and community need for additional childcare places and that the gap in the market is between 100 and 120 places.  She says that the approval of a different childcare centre at 618 Brunswick Street, New Farm will cater to a share of the demand for places by offering “choice in accessibility, convenience, operator for local New Farm pre-school age children and their families”.[319]  At the time of the hearing, the experts agreed that the other childcare centre to which Ms Meulman refers did not have the benefit of an approval as it was the subject of an appeal.[320]  That is evident from Exhibit 8.04.
  3. [349]
    The disagreement between the economic experts is reflective of the fact that their opinions were informed, in part, by uncertain information about which highly qualified and experienced experts might disagree. 
  4. [350]
    In this case, it is not necessary for me to resolve the key disputes between the economic experts.[321]  The matters about which there is little, or no, disagreement persuade me that there is a need for the proposed development.  They include the following five matters.
  1. [351]
    First, the economic experts agree that the New Farm Statistical Area 2 catchment is the relevant catchment for the assessment of need for the proposed development.  It encompasses an area that extends one kilometre around the subject land in most directions.  That catchment is limited in its extent as compared to a typical childcare centre catchment, which extends two to three kilometres from a proposed facility.  This reflects the peninsula nature of New Farm, which is bounded by the Brisbane River in the east, south and westerly directions and Fortitude Valley to the north.[322] 
  2. [352]
    Within the agreed catchment, there is only one childcare centre.  It is known as Jack & Jill Child Care Centre and offers 59 places.  It is an older style facility.  During cross-examination, Ms Meulman described the Jack & Jill Child Care Centre as a 29-year-old centre with an existing operator that has a long-term, captive market in the local community.  The economic experts agree that it has a National Quality Standard rating of “Meeting” across all categories except for the category of “Collaborative partnerships with families and communities”, where it rates as exceeding the standard.[323] 
  3. [353]
    During cross-examination, Ms Meulman accepted that, having regard to the socio-economic profile in New Farm, the local community would expect a childcare centre that exceeds the National Quality Standards for childcare centres.[324]  Mr Duane and Ms Meulman opine that the absence of a high-quality modern centre in the catchment is presently resulting in the residents of New Farm relying on childcare centres outside the catchment to address their needs.[325]  The extent to which the New Farm residents are reliant on services outside their local area is significant.  It is around 70 to 75 per cent of the likely demand for childcare places.[326] 
  4. [354]
    Ms Meulman accepts that the community expectations for a modern childcare centre that exceeds the National Quality Standards are not being met in New Farm.[327]  Mr Duane expresses similar opinions.[328] 
  5. [355]
    The above evidence supports a finding that there is a need for a contemporary facility such as is proposed by the Co-respondents in this case.
  1. [356]
    Second, approval of the proposed development would result in a childcare centre approximately 200 metres from the existing Holy Spirit Primary School, which had an enrolment in 2021 of 280 students.[329]  The proposed development will also be proximate to the New Farm State School.  There are no childcare centres in New Farm near the Holy Spirit Primary School or the New Farm State School.[330]  As such, the community is not afforded the benefit associated with a childcare centre located proximate to the local primary schools. 
  2. [357]
    Mr Duane and Ms Meulman both gave evidence that the provision of a childcare centre proximate to the local schools is an identifiable gap in the market.[331]  Mr Duane opines that the co-location of childcare centres with primary schools is a very important and growing part of an education community.  It provides options for parents with children at childcare and primary school ages, thereby benefiting the community through improved choice and convenience.[332]  Mr Duane’s opinion in this respect was not challenged and I accept it.  His evidence was supported by the evidence of Ms Meulman during cross-examination.  She explained that the location of a childcare centre close to a primary school offers convenience to parents.  Ms Meulman also explained that there are translational education benefits in terms of the social benefits to children who attend a childcare close to a school that they may later attend.[333]  Ms Meulman accepts that these are benefits that would be enjoyed were the proposed development approved given its proximity to Holy Spirit Primary School.[334]
  3. [358]
    Third, the proposed development would provide enhanced choice, competition, and convenience.[335]  This was acknowledged by Ms Meulman during cross-examination.  Ms Meulman accepted that:
    1. (a)
      under City Plan, the proposed development is a community facility;[336]
    2. (b)
      the proposed development would offer a modern facility, the likes of which is not presently available in the catchment;[337]
    3. (c)
      even if she is correct that the occupancy levels would be between 60 and 64 per cent, given the qualitative features of the proposed development, there is a need for the proposed development;[338]
    4. (d)
      the subject land is in a prominent position, being at the intersection of Brunswick Street and Merthyr Road, on a site that forms part of the commercial hub of New Farm where there is significant pedestrian activity;[339]
    5. (e)
      the subject land is a logical location at New Farm for a childcare centre offering 121 places given the subject land:
      1. is in the District centre zone;
      2. is part of the commercial hub of New Farm;
      3. is easily accessible on foot;
      4. will add to the village feel;
      5. is located at the juncture of two of the major roads in the suburb so that it is also well-located for those who would choose to access it by vehicle rather than on foot;[340] and
    6. (f)
      it is in the public interest to provide improved choice in childcare places in New Farm.[341]
  4. [359]
    Ms Meulman’s acceptance of these matters is hardly surprising given the available photographic evidence before me.
  1. [360]
    That the proposed development would provide choice, competition, and convenience is a matter that is relevant to, but not necessarily determinative by itself of, the need for the proposed development.  In a relative sense, it is of greater significance in this case as the proposed development provides a community use that has become a necessary incident of everyday life.  In contemporary times, the provision of appropriate childcare facilities is both required socially and economically for any properly functioning society.  As was explained by Mr Buckley, the provision of appropriate facilities for the out-of-home care of children is an essential aspect of society.[342]  His opinion in this respect was not challenged and I accept it.
  2. [361]
    This is significant in this case.  As was observed by His Honour Judge Wilson SC (as His Honour then was) in Luke & Ors v Maroochy Shire Council & Anor:[343]

“[55] The undeniable purpose of a town Planning Scheme is to regulate, within reasonable limits consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general wellbeing of the occupants of the relevant local government area. …”[344]

  1. [362]
    Fourth, the additional choice and convenience associated with the proposed development is not assured were the proposed development to be refused.  This is evident from the following exchange during Mr Duane’s cross-examination:

“In determining the benefits of choice, convenience and the like, your principal opinion is based upon the fact that this will be a modern, high quality centre and not the number of spaces per se?---That’s correct, but the number of spaces per se can have an influence on the type and quality of facilities provided, so if you’re putting the proposition to me that you could put a 50-place child care centre here, often, developers, as I understand – that doesn’t mean they can provide the full suite of extra playgrounds, extra facilities. So, often, they need certain numbers to provide their full suite of facilities, so I can’t comment specifically about – when you say, will there be great – you know, greater choice. There’ll be a greater choice of operators if you had two 50-child care centres, as an example, but whether they’ve got the range of facilities that are required to meet that market – in my understanding, the smaller the facility, the less range of items that can be provided and facilities or offerings within that childcare centre exist, depending on the operator.”[345]

  1. [363]
    During cross-examination Mr Schomburgk agreed with this evidence given by Mr Duane.  He added that, given the extent of regulation for childcare centres in terms of the number of staff and other factors, their viability is challenged if they are under 75 places.[346]  Having regard to Mr Schomburgk’s evidence, I infer that it is unlikely that the demand identified by Ms Meulman would be met by the provision of two smaller centres that provided a combined total of either 100 or 120 childcare places. 
  2. [364]
    Fifth, as was acknowledged by Ms Meulman during cross-examination, the fact that Sparrow Early Learning Group, an experienced operator in Queensland, has entered into an agreement to lease with the developer of the subject land[347] is an indication of the need for the proposed development.  It demonstrates that they are sufficiently confident that a childcare centre of the size proposed would be viable.[348]
  3. [365]
    For the above reasons, I am comfortably satisfied that there is a need for the proposed childcare centre with its proposed 121 places. 

Is there a need for the proposed development in its entirety?

  1. [366]
    As I have mentioned above, the Co-respondents allege that there is a need for the proposed development.  They submit that City Plan itself recognises that there is a need for the proposed development.  They also say that the need for the proposed development in its entirety is demonstrated by the evidence of Mr Duane.
  2. [367]
    I accept that City Plan recognises, in a town planning sense, the importance of providing development such as that proposed here.  The New Farm and Teneriffe Hill neighbourhood plan code permits larger tenancy sizes to facilitate a new community facility to serve the needs of local residents on land in the Mixed use precinct.  The proposed development furthers this outcome.  It provides a community service that is needed, namely a childcare centre of 121 places. 
  3. [368]
    In addition, City Plan expressly identifies the need for smaller tenancies that provide a diverse range of services that are centre activities.  It does so by including the subject land in the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use precinct in the New Farm and Teneriffe Hill neighbourhood plan area.  The proposed development delivers on that identified community need.  As much was acknowledged by Ms Meulman during cross-examination.  She accepted that the proposed development would further:
    1. (a)
      the overall outcome sought in s 7.2.14.1.2 7.a. of the New Farm and Teneriffe Hill neighbourhood plan code as the subject land is in the District centre, which does not presently contain a childcare centre, and, as such, the proposed development would increase the range of commercial uses in the centre;[349]
    2. (b)
      the overall outcome sought in s 7.2.14.1.2 7.b. of the New Farm and Teneriffe Hill neighbourhood plan code as the proposed development would provide a variety of tenancy types;[350]
    3. (c)
      the overall outcome sought in s 7.2.14.1.2 7.c. of the New Farm and Teneriffe Hill neighbourhood plan code as the proposed development would provide a new community facility to service the needs of local residents;[351] and
    4. (d)
      performance outcome PO18 of the New Farm and Teneriffe Hill neighbourhood plan code as the proposed development would provide a diverse range of services to serve a local community need.[352]
  4. [369]
    City Plan’s recognition of the need for the provision of a range of services that comprise centre activities, as are proposed in the ground floor tenancies of the proposed development, is also evident from:
    1. (a)
      specific outcome SO4 in Table 3.3.4.1 of the Strategic framework, which requires Brisbane’s district centres and neighbourhood centres to continue to service local population needs;[353]
    2. (b)
      land use strategy L4 in Table 3.3.4.1 of the Strategic framework, which requires that district centres and neighbourhood centres continue to evolve, offering an increasing range of local services and facilities;[354]
    3. (c)
      the strategic outcome in s 3.4.1(1)(p) of the Strategic framework, which indicates that the provision of a broad range of community facilities is considered necessary to support the community’s recreational, community and social activities, and promote the physical, cultural, and social wellbeing of the community;[355]
    4. (d)
      land use strategy L2.1 in Table 3.4.5.1 of the Strategic framework, which states:

“Potential amenity impacts from the development of community facilities or services in residential neighbourhoods will be considered in relation to the community benefit that the facility or service will provide to the broader community.”[356]

  1. (e)
    the overall outcome in s 6.2.2.3 4.a. of the District centre zone code, which states:

“Development provide a diverse range of centre activities comprising commercial, retail, government, service, community and cultural activities and level of economic and social activity to serve a district catchment, along with visitors, workers and residents in the centre.”[357]

  1. (f)
    the overall outcome in s 6.2.2.3 6.b. of the District centre zone code, which seeks development that creates a centre that provides localised access to goods and services;[358] and
  2. (g)
    performance outcome PO18 of the Centre or mixed use code, which calls for development to provide a land use mix that supports the intended function of the centre and includes complementary uses such as retail, employment, and community facilities and uses that provide for the everyday needs of the local community.[359]
  1. [370]
    In William McEwans Pty Ltd v Brisbane City Council, His Honour Judge Carter explained:[360]

“Any zoning scheme must have as its basis the desire to so order land use as to best satisfy the needs and the physical well being of the community for whose benefit the zoning scheme is constructed. The enormously difficult task confronting the framers of a town planning scheme is to try to control land use in such a way that the needs of the community and its ability to enjoy life within that community are best served. This involves the subjection of the individual will to the overall good of the community, as it is perceived to be by those who frame, and by those who ultimately adopt, the scheme thereby giving it legal efficacy. The scheme, once it becomes law, must be seen to be an expression of the will of the community that its various needs are best provided for in the manner, by which the scheme controls the use to which land might be put. The scheme, in turn seeks to serve the need in the community for an agreeable residential amenity, the need to ensure adequate and suitably located land for heavy and light industry and for the manufacture and the retailing of consumer goods, the need for open space, the need for facilities for public purposes and so on. In respect of the scheme in its final form, the assumption is that these various needs are provided for in such a way that the physical well being of the total community is guaranteed.”[361]

  1. [371]
    Although these observations were made with respect to planning schemes prepared under an earlier legislative regime, they remain apposite.  As such, once the proposed development is considered in the context of its compliance with the City Plan provisions referred to above, it is not difficult to conclude that a need for the proposed development has been comfortably demonstrated.[362] 
  1. [372]
    Leaving aside the need identified in City Plan, Mr Duane also gave evidence that there is a need for all components of the proposed development, including the commercial tenancies.  He says that there is a need for commercial tenancies of 410 square metres on the subject land in place of the 700 square metres that will be removed in the redevelopment.   
  2. [373]
    Mr Duane’s opinion is informed by the commitment from a proposed operator of an Italian restaurant, the population within the New Farm catchment, and an analysis of retail floorspace demand.  As Mr Duane explains, there is a growing population within the New Farm catchment with a resultant increase in demand for retail floorspace.  The redevelopment of the subject land will result in the loss of 700 square metres of retail and commercial floorspace.  A reduction in floorspace in a market that is increasingly demanding retail floorspace provides a clear indication of the need for the proposed ground floor tenancies.  Mr Duane also opines that there is a need to retain flexibility in the area designated for each tenancy so that the proposed development can accommodate a diverse range of tenants to meet market demand.[363]  This is addressed in the proposed development in that it nominates an indicative location only for the inter-tenancy wall. 
  3. [374]
    The explanations provided by Mr Duane are cogent.  I accept his evidence.
  4. [375]
    During cross-examination, Ms Meulman also recognised that there is evidence of a need for the proposed development.  She accepted that the expression of interest from an operator of an Italian restaurant to occupy one of the ground-level commercial tenancies[364] is an indicator that there is a need for further uses of that kind at this location in New Farm.[365]  She also acknowledged that the subject land is in a prominent position, being at the intersection of Brunswick Street and Merthyr Road, on a site that forms part of the commercial hub of New Farm where there is significant pedestrian activity.[366]  In those circumstances, Ms Meulman accepts that it is in the public interest for the subject land to be used in a way that fulfils its economic potential.[367] 
  5. [376]
    Ms Meulman also accepted that approval of the proposed development could provide meaningful economic benefits to the traders in the District centre.  For example, parents who attend the subject land to collect their children might also fill a prescription at the chemist or grab groceries for dinner.[368]  As such, it is reasonable to infer that the proposed development will, in this way, improve the ease and efficient lifestyle of the community.
  6. [377]
    Having regard to the evidence referred to above, which I accept, I am satisfied that there is a need for the proposed development in its entirety on the subject land.  It will improve the ease, comfort, convenience, and efficient lifestyle of the community in a manner encouraged by City Plan.  This is a relevant matter that lends support to approval of the proposed development. 

What is the significance of the need to the exercise of the discretion?

  1. [378]
    The existence of a community need and an economic need for development is a matter of significance for development in the New Farm and Teneriffe Hill neighbourhood plan code.  That is apparent from the overall outcome in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code, which states:

“m. Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”

  1. [379]
    As I have already found, the proposed development complies with this overall outcome because it is of a height, scale and form that is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct, and the subject land.  As such, it is unnecessary to have resort to the proviso that permits greater height, scale, and form to establish compliance. 
  2. [380]
    In those circumstances, the relevance of the existence of a need for the proposed development is not limited to the question of compliance with the assessment benchmarks.  It a relevant matter to be considered under s 45(5)(b) of the Planning Act 2016.  This was conceded by the Appellants, through their counsel Mr Wylie, during the hearing.[369]
  3. [381]
    The weight that should be attributed to the existence of a need in the exercise of the planning discretion was addressed by Mr Buckley.  In his individual report, Mr Buckley opines that the need for the childcare centre should have the highest priority in the balancing exercise.  He explains that the provision of appropriate facilities for the out-of-home care of children is an essential aspect of society.  In his opinion, it is remarkable that, notwithstanding the demographic changes (including population growth) that have occurred across New Farm in the past 20 years, there is an obvious gap in the provision of childcare facilities in this suburb.  Having regard to the growth in the number of childcare centres across South-east Queensland, including within the central business district and other inner suburbs, and the increase in the placement capacity of centres overall, Mr Buckley considers that the gap is an extraordinary planning phenomenon and is unacceptable.[370] 
  4. [382]
    Mr Buckley opines that a benefit of a childcare centre being located on the subject land is the strong likelihood of regular walking access to the childcare centre by parents and guardians.  He considers this benefit to be greater than that provided by the non-centre based and non-inner suburban based childcare facilities which predominate across Brisbane.[371]
  5. [383]
    In Mr Buckley’s opinion, the planning purpose behind the centre activities defined activity group of uses, which are encouraged in centres within City Plan, is to facilitate diverse centres and provide economic opportunities for owners to provide facilities that respond to identified needs.  He says that the approval of the proposed development will assist in the achievement of this planning outcome.[372]
  6. [384]
    Mr Buckley opines that the community and economic need for the childcare centre component of the proposed development is strong.  He also says that there is planning need for all the uses considering the zoning and use expectations of the subject land.[373]
  7. [385]
    Mr Buhmann agrees with Mr Buckley about the accessibility benefit associated with the location of the proposed development on the subject land.  In addition, he opines that the whole New Farm district centre will benefit from the introduction of the childcare community use on the subject land.  He explains that the proposed development will add diversity to the New Farm district centre and create a strong incentive for cross-utilisation of other centre services and shopping options.[374]  Mr Buhmann’s evidence in this regard is supported by the evidence of Ms Meulman to which I refer in paragraph [376] above.[375]  Mr Buhmann also opines that the benefits of fulfilling the need for a childcare centre as an “in-centre” development is relevant, as is the benefits derived from adding location diversity to childcare services.  It provides additional choice to suit the lifestyle circumstances of New Farm residents.[376]
  8. [386]
    Neither Mr Buckley nor Mr Buhmann were challenged about these opinions.  They each provide cogent explanations for their opinions.  Mr Buckley’s opinions are also supported by provisions throughout City Plan that demonstrate the importance of providing community facilities, which include childcare centres.[377]  Those provisions include those that I have identified in paragraphs [368] and [369] above.
  9. [387]
    During cross-examination, Mr Schomburgk accepted that provisions such as land use strategy L2.1 in Table 3.4.5.1 of the Strategic framework indicate that City Plan calls for a balance to be struck between the potential of adverse amenity impact on residential development caused by the development of community facilities and the community benefit to be derived from the provision of community facilities that will service the broader community.[378]  City Plan does not prescribe how the balance is to be struck.  Rather, provisions such as those identified demonstrate that City Plan provides a degree of flexibility to determine whether a development achieves the appropriate balance having regard to the individual situation that pertains in each case.
  10. [388]
    Having regard to the evidence referred to above, which I accept, I am satisfied that the need for the proposed development is a matter that weighs strongly in favour of its approval.  It is a need that City Plan seeks to have fulfilled for the benefit of the community.

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

  1. [389]
    The appropriate approach to the exercise of the planning discretion is explained in paragraphs [6] to [10] above.
  2. [390]
    As I have found above, there is a substantial degree of compliance with the assessment benchmarks.  The only non-compliance relates to the failure to provide deep planting in accordance with performance outcomes PO4 and PO5 of the Childcare centre code.
  3. [391]
    Each of the non-compliances tells against approval.  That said, the Appellants do not contend that these non-compliances, by themselves, warrant refusal of the proposed development.  I agree.  As I have explained in paragraph [280] above, the weight to be attributed to these non-compliances is ameliorated to an extent because:
    1. (a)
      the proposed landscaping outcome is a substantial improvement to that which exists at present, which could lawfully persist;[379]
    2. (b)
      the proposed landscaping complements the character of the area;
    3. (c)
      the design of the landscaping will enhance the public’s appreciation of a visual connection between built form and landscape; and
    4. (d)
      by providing elevated planters immediately adjoining the outdoor playscapes, the proposed development will provide landscaping that can be appreciated by the children.
  4. [392]
    I must also have regard to those relevant matters that favour approval, each of which I have already identified in my reasons above.  They include that the proposed development:
    1. (a)
      involves land uses that are appropriate to, and intended for, the District centre zone and the relevant precinct and sub-precinct of the New Farm and Teneriffe Hill neighbourhood plan area in which the subject land is located;
    2. (b)
      there is a need for a childcare centre with 121 places, as is proposed; and
    3. (c)
      there is a need for the proposed development.
  5. [393]
    On balance, I am satisfied that the extent to which the proposed development does not comply with the assessment benchmarks should not stand in the way of an approval given:
    1. (a)
      the matters that I have identified that temper the significance of the non-compliances; and
    2. (b)
      the relevant matters that I have identified that support approval.
  6. [394]
    The proposed development delivers that which the City Plan identifies is needed for the community.  It provides a new community facility in the New Farm district centre that is required to serve the needs of the local residents.  It also delivers on the identified need for land in the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use precinct in the New Farm and Teneriffe Hill neighbourhood plan area to provide a diverse range of centre activities, including a range of retailing and commercial uses.   The proposed development provides a diverse range of centre activities in a building that complies with the height, bulk, scale, character, visual amenity, and interface requirements in City Plan.  It does so without unacceptable amenity impacts, and while meeting City Plan’s carparking requirements.  This is a matter of town planning importance favouring approval. 
  7. [395]
    Overall, the proposed development is meritorious and should be approved, subject to the imposition of reasonable and relevant conditions.

Conclusion

  1. [396]
    The Co-respondents have discharged the onus.
  2. [397]
    In due course, the appeal will be dismissed, and the development application approved subject to conditions.  To that end, I will adjourn the appeal for further review on 12 April 2023.  I direct that the Council prepare a document that includes proposed conditions for that review and provide a copy to the other parties for their consideration in advance of the review.

Footnotes

[1]Subject to ss 45(2) to (5) of the Planning and Environment Court Act 2016 (Qld).

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

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

[4]Planning and Environment Court Act 2016 s 47.  The type of decision that may be made is also governed by s 60 of the Planning Act 2016 (Qld).

[5]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20. 

[6]Planning Act 2016 ss 45(5) and 59.

[7]City Plan version 19 was in effect at the time the development application was properly made on 15 October 2020: see Exhibit 2.01.  It is a categorising instrument containing assessment benchmarks relevant to the assessment called for under s 45 of the Planning Act 2016.  The parties did not put any other categorising instrument in issue, nor did they put in issue any amendment to City Plan or any new statutory instrument for the purpose of s 45(8) of the Planning Act 2016.

[8]Planning Regulation 2017 (Qld) s 31 and sch 24.  The regulations prescribe additional matters, but they have not been put in issue in this appeal.

[9][2020] QCA 253; [2021] QPELR 987.

[10][2020] QCA 257; [2021] QPELR 1003.

[11][2020] QCA 273; [2021] QPELR 1321.

[12][2021] QCA 95; [2022] QPELR 309.

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

[14][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

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

[16]Exhibit 6.05.  See also Exhibit 6.06.

[17]Exhibit 2.03.

[18]City Plan s 6.1 4: Exhibit 2.01 p 79.

[19]Exhibit 2.03.

[20]City Plan s 7.2.1.1.1 1: Exhibit 2.01 p 93.

[21]The Appellants abandoned several their allegations during the hearing.  They also abandoned some of the submissions originally made in writing.

[22]City Plan s 6.2.2.3 1: Exhibit 2.01 p 86.

[23]Exhibit 6.06.

[24]City Plan s 7.2.14.1.2 1. and 2: Exhibit 2.01 p 93.

[25]Exhibit 6.06.

[26]Exhibit 6.06.

[27]Exhibit 6.05.

[28]Exhibits 6.01 and 8.01. 

[29]Exhibit 8.01.

[30]Exhibit 5.01.

[31]Exhibit 8.08.

[32]Exhibits 3.03 and 4.07 and oral testimony by the experts.

[33]Exhibits 3.03 and 4.07 and oral testimony by the experts.

[34]Exhibits 3.04 and 4.03 and oral testimony by the experts.

[35]For ease of reference, in these reasons for judgment, the subject land’s frontage to Brunswick Street will be referred to as the northern boundary, the frontage to Merthyr Road will be referred to as the eastern boundary; the boundary shared with 78 and 78b Merthyr Road will be referred to as the southern boundary (and those properties will be regarded as the neighbouring properties to the south), and the boundary shared with 835 Brunswick Street will be referred to as the western boundary (and that property will be described as the neighbouring property to the west).

[36]Exhibit 3.02 p 12; Exhibit 3.03 p 6; Exhibit 3.04 p 6.

[37]Exhibit 3.04 p 6.

[38]Exhibit 3.03 p 6.

[39]Exhibit 3.04 p 6.

[40]Exhibit 3.03 p 6.

[41]Exhibit 3.04 p 6.

[42]Exhibit 3.03 pp 11, 29, 33.

[43]Exhibit 3.03 pp 11, 29, 33.

[44]Exhibit 3.03 p 11.

[45]Exhibit 3.03 p 11; Exhibit 3.04 p 8.

[46]Exhibit 3.04 p 8; Exhibit 3.03 pp 11-3.

[47]Exhibit 3.03 pp 11, 29 and 33.

[48]Exhibit 3.03 p 11; Exhibit 3.04 p 8.

[49]Exhibit 3.03 p 11.

[50]Exhibit 3.03 p 20; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).

[51]Exhibit 3.03 p 20.

[52]Exhibit 3.03 p 20.

[53]Exhibit 3.03 p 21.

[54]Exhibit 3.03 p 18; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).

[55]Exhibit 3.03 p 18.

[56]Exhibit 3.03 pp 18-9; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).

[57]Exhibit 3.03 p 20.

[58]Exhibit 3.03 p 15; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).

[59]Exhibit 3.03 pp 15-6.

[60]Exhibit 3.03 p 17.

[61]Exhibit 3.03 p 18.

[62]Exhibit 3.03 p 14; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).

[63]Exhibit 3.03 pp 14-5.

[64]Exhibit 3.03 p 14.

[65]Exhibit 3.03 pp 14-5.

[66]Exhibit 3.03 p 29.

[67]Exhibit 3.03 pp 20-2 figures 18, 19 and 21 and p 29.

[68]Exhibit 3.03 p 33.

[69]Exhibit 3.03 pp 33-4 and figure NP1.

[70]Exhibit 3.03 pp 38-9.

[71]Exhibit 3.03 p 39.

[72]Exhibit 3.03 p 39.

[73]Exhibit 3.04 p 19.

[74]Exhibit 3.04 p 21.

[75]Exhibit 6.01.

[76]Exhibit 3.03 p 8.

[77]Exhibit 3.03 p 8.

[78]Exhibit 3.03 p 8.

[79]Exhibit 3.03 p 22.

[80]Exhibit 3.03 p 22.

[81]Exhibit 3.03 p 22.

[82]Exhibit 3.03 p 22.

[83]Exhibit 3.03 pp 22-3.

[84]There appears to be differences between the dimensions on different plans.  Compare, for example, Exhibit 8.01 p 6 and Exhibit 6.01 p 2.  See also the differences between Exhibit 3.03 p 8 and p 22.

[85]Exhibit 3.03 pp 22-3 and Exhibit 8.01.  Some of the dimensions in Exhibits  8.01.

[86]Exhibit 3.03 p 23.

[87]Exhibit 3.03 p 23.

[88]Exhibit 3.03 p 23.

[89]Exhibit 3.03 p 8; Exhibit 8.01; Exhibit 6.01.

[90]Exhibit 3.03 p 8.

[91]Exhibit 3.03 p 23.

[92]Exhibit 3.03 p 30.

[93]Exhibit 3.03 p 64.

[94]Exhibit 3.03 p 35.

[95]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 44-5 and 49-50.

[96]Exhibit 3.03 p 38.

[97]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 61.

[98]Exhibit 3.03 p 38.

[99]In considering the perspective images and the elevations, I am mindful of the evidence of Mr Curtis, Mr Powell, and Dr McGowan about the limitations of those images, particularly those at Exhibit 8.01 pp 15-7 – see Exhibit 3.03 pp 25 and 38 and Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 45-6.  I am also cognisant of the evidence of Mr Powell about the choice of an equivalent 27-millimetre lens - Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 47-8.

[100]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023) 3-4.

[101]Exhibit 3.03 pp 6 and 43; Exhibit 8.01 pp 23-7.

[102]Exhibit 6.06 [4(a)].

[103]Exhibit 3.03 pp 43-4.

[104]Exhibit 3.03 p 44.

[105]Exhibit 3.03 p 51.

[106]Exhibit 3.03 p 31.

[107]City Plan s 9.3.3.3 Table 9.3.3.3.A AO26: Exhibit 2.01 pp 117 and 138.

[108]Exhibit 3.03 p 55.

[109]Exhibit 3.03 p 57.

[110]Exhibit 3.03 p 31.

[111]Exhibit 6.06 [4(b)].

[112]Exhibit 6.06 [4(c)].

[113]Outline of Argument for the Appellants pp 8-9 [23], pp 11-2 [27] and [28], and pp 13-6 [31]-[38].

[114]Exhibit 3.3 p 6.

[115]Exhibit 3.3 p 6.

[116]Exhibit 3.03 p 11.

[117]Exhibit 3.03 p 27.

[118]Exhibit 3.03 p 27.

[119]Exhibit 3.03 p 27.

[120]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 9-11.  The extract and summary of the effect of the evidence in the Outline of Argument for the Appellants at pp 11-2 [27] and [28] is not an entirely fair representation of the effect of the evidence.

[121]Exhibit 3.03 pp 29-30.

[122]Exhibit 3.03 pp 31-2.

[123]Exhibit 3.03 p 37.

[124]Exhibit 3.03 p 39.

[125]Exhibit 6.06 [4(d)].

[126]Outline of Argument for the Appellants p 17 [42]

[127]Planning Act 2016 s 45(5)(a)(ii) and Planning Regulation 2017 s 31.

[128]Exhibit 5.01.

[129]Exhibit 5.01 p 22.

[130]Exhibit 1.06.

[131][2022] QPEC 39, [83]-[91].

[132]City Plan ss 5.3.3 and 7.1 6: Exhibit 2.01 pp 37 and 89.

[133][2021] QCA 95; [2022] QPELR 309.

[134]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, 345 [110] with reference to WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 at [35]-[38] per Fryber J with whom McMurdo P and Atkinson J agreed; and Bell v Brisbane City Council [2018] QCA 84; (2018) 230 LGERA 374 at [20] and [70] per McMurdo JA with whom Sofronoff P and Philippides JA agreed. 

[135]City Plan ss 6.2.2.3 1 and 4.a. and s 7.2.14.1.2 7.a. and e.: Exhibit 2.01 pp 86 and 95.

[136]City Plan Table 5.5.9: Exhibit 2.01 pp 46-7.

[137]City Plan s 5.3.3: Exhibit 2.01 p 37.

[138]Exhibit 2.01 p 86.

[139]Exhibit 2.01 p 87.

[140]See, for example, City Plan s 9.3.3.2 2.b.: Exhibit 2.01 p 105.

[141]Northern Properties Pty Ltd v Brisbane City Council & Anor [2019] QPEC 66; [2020] QPELR 877, 884 [27]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 983-4 [45].

[142]Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, 414 [54]–[56]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 984 [49].

[143]City Plan s 7.2.14.1.2 3.m.: Exhibit 2.01 p 94.

[144]Exhibit 3.03 p 27 [85] and [86].

[145]Exhibit 3.03 p 6.

[146]Exhibit 3.03 pp 12-3 Figures 4 and 5.

[147]Exhibit 3.03 p 6.

[148]Exhibit 3.04 pp 8 and 19.

[149]Exhibit 3.03 p 34.

[150]Exhibit 4.03 p 3; Exhibit 3.04 pp 8-9.

[151]Exhibit 3.04 p 8.

[152]Exhibit 3.04 p 19.

[153]Exhibit 3.03 pp 29-30.

[154]Exhibit 3.03 p 30.

[155]Exhibit 3.03 pp 35-6.

[156]Exhibit 3.03 pp 39 and 41.

[157]Exhibit 6.06 [4(b)].

[158]Although this might well explain the lack of assistance, it in no way excuses it.  It is contrary to professional obligations to maintain issues that are not genuinely in dispute or do not represent real issues.  See, for example, rr 39, 41, 42, 57 of the Barristers’ Conduct Rules dated 23 February 2018.

[159]Exhibit 4.07 p 4.

[160]Exhibit 3.03 p 31.

[161]Exhibit 3.03 pp 35-7.

[162]Robert Cowan, The Dictionary of Urbanism (Streetwise Press, 2005).

[163]Reid H Ewing et al, Measuring Urban Design: Metrics for Livable Places (Island Press, 2013) vol 200, 103.

[164]They explain “Alexander et al (1977) state that any building over four stories tall are out of human scale. Lennard and Lennard (1987) set the limit at six stories. Hans Blumenfeld (1953) sets it at 3 storeys”.

[165]Jan Gehl, Cities for People (Island Press, 2010),203-5 (citing examples from Vancouver).  

[166]Exhibit 3.03 p 40.

[167]Jan Gehl, Cities for People (Island Press 2010), 43-4.  

[168]Exhibit 3.03 p 40.

[169]Exhibit 3.03 p 40.

[170]Exhibit 3.03 pp 53 and 55.

[171]Exhibit 6.06 [4(d)].

[172]Exhibit 3.03 pp 30 and 32.

[173]Exhibit 3.03 p 36.

[174]Exhibit 6.06 [5(a)].

[175]Exhibit 6.06 [5][d].

[176]Exhibit 3.3 p 6.

[177]Exhibit 3.04 p 21.

[178]Exhibit 3.03 p 31.

[179]Exhibit 3.03 p 40.

[180]Exhibit 6.06 [5].

[181]Outline of Argument for the Appellants pp 18-21 [44]-[52].

[182]Outline of Argument for the Appellants p 21 [53].

[183]Exhibit 3.03 p 59.

[184]Exhibit 3.03 p 59.

[185]Exhibit 3.03 p 59.

[186]Exhibit 3.03 p 59.

[187]Exhibit 3.03 p 59.

[188]Exhibit 3.03 pp 63-4.

[189]Exhibit 3.03 p 13 figure 5 and p 16 figure 10.

[190]Exhibit 3.04 p 25.

[191]Exhibit 3.04 p 19.

[192]Exhibit 3.03 p 61.

[193]Exhibit 3.03 p 61.

[194]Exhibit 3.03 pp 61-2.

[195]Exhibit 3.03 p 62.

[196]Exhibit 3.03 p 62.

[197]Exhibit 3.03 p 62.

[198]Exhibit 3.03 p 62.

[199]Exhibit 3.03 p 62.

[200]Exhibit 3.03 p 62.

[201]Exhibit 3.03 p 64.

[202]Exhibit 3.03 p 64.

[203]Exhibit 6.06 [5(d)].

[204]Exhibit 6.06.

[205]Outline of Argument for the Appellants p 24 [57(e)].

[206]Exhibit 6.06 [4(d)(iii)].

[207]Exhibit 6.06 [5(e)].

[208]Outline of Argument for the Appellants pp 23-4 [56].

[209]City Plan s 1.3.1: Exhibit 2.01 p 23.

[210][2021] QCA 95; [2022] QPELR 309.

[211]The Australian Oxford Dictionary (2nd ed, 2004) ‘small scale’.

[212]Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[213](2014) 201 LGERA 82 at [52], followed in Gerhardt v Brisbane City Council (2017) 226 LGERA 257 and Wilhelm v Logan City Council [2020] QCA 273, at [54].

[214](1998) 194 CLR 355 at [69] – [71].

[215][2013] 1 Qd R 1.

[216]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[217](1997) 187 CLR 384 at 408.

[218]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors [2021] QCA 95, [2022] QPELR 309, 336-8 [75]-[78] (original footnotes).

[219]Exhibit 3.02 p 13 Map 1.

[220]Exhibit 3.03 p 12 Figure 4 and p 14 Figure 7.

[221]Exhibit 3.03 p 13 Figure 5 and p 14 Figure 7

[222]Exhibit 3.02 p 39.

[223]Exhibit 3.03 p 12 Figure 4 and p 13 Figure 6..

[224]See paragraphs [338] to [388] below.

[225]See paragraphs [338] to [388] below.

[226]Exhibit 6.06 [6(a)].

[227]Outline of Argument for the Appellants p 24 [58].

[228]Outline of Argument for the Appellants p 26 [62].

[229]Outline of Argument for the Appellants pp 25-6 [59]-[61].

[230]Exhibit 3.03 p 49.

[231]Exhibit 3.03 p 47.

[232]Exhibit 3.03 p 47.

[233]Exhibit 3.03 p 47.

[234]Exhibit 3.03 p 49.

[235]Exhibit 3.04 p 26.

[236]Exhibit 3.03 p 51; Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 74-5.

[237]Exhibit 3.03 p 52.

[238]Exhibit 3.03 pp 53-4.

[239]Exhibit 3.03 pp 53-4.

[240]Exhibit 3.03 p 53.

[241]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 53-4.

[242]Exhibit 3.03 p 56.

[243]Exhibit 3.04 p 20.

[244]Exhibit 3.04 p 7.

[245]Exhibit 3.04 p 20.

[246]Exhibit 6.06 [4(d)(ii)].

[247]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 48-9.

[248]Exhibit 6.06 [7].

[249]Outline of Argument of the Appellants p 34 [92].

[250]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 20-1.

[251]Exhibit 8.01 p 3.

[252]Outline of Argument of the Appellants p 35 [95].

[253]Exhibit 8.02 [5].

[254]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023) 6-7.

[255]See paragraphs [338] to [388] below.

[256]Exhibit 6.06 [8].

[257]Exhibit 3.03 pp 67-8.

[258]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 79.

[259]Exhibit 3.03 p 67.

[260]Exhibit 3.03 pp 67-8.

[261]Exhibit 3.03 p 68.

[262]Exhibit 3.03 p 68.

[263]Exhibit 3.03 p 68.

[264]Exhibit 8.01 pp 8-14.

[265]The existing lawful use of the subject land is a matter to which regard must be had: Planning Act 2016 s 45(5)(a) and Planning Regulation 2017 s 31(f).

[266]Exhibit 6.06 [9]

[267]Exhibit 2.01 p 175.

[268]City Plan sch 6 s1.1: Exhibit 2.01 pp 233 and 235.

[269]Exhibit 2.01 pp 263-4.

[270]Exhibit 2.01 p 266.

[271]Exhibit 2.01 pp 267-70.

[272]Exhibit 2.01 p 205.

[273]Exhibits 6.01 and 8.01. 

[274]Exhibit 8.11.

[275]Exhibits 3.01, 4.02, 4.06 and 4.08 and oral testimony by the experts.

[276]City Plan ss 5.3.3: Exhibit 2.01 p 37.

[277]City Plan sch 6 s1.1: Exhibit 2.01 pp 233 and 235.

[278]Exhibit 2.01 p 237.

[279]Although this point of agreement is not explicitly stated, it is implicit from the statements made by the experts in Exhibit 3.01 p 2 [13], [14], [19] and [20] and p 3 [24]; Exhibit 4.06 p 4 [10] and [11]; Exhibit 4.02 p 1 [5(e)]; Exhibit 4.08 p 8 [29].  This is acknowledged by the Appellants in their written submissions: Outline of Argument for the Appellants p 27 [65] and p 28 [72].

[280]Exhibit 4.06 p 4.

[281]Exhibit 4.06 p 5.

[282]Exhibit 4.06 p 4.

[283]Exhibit 4.06 pp 15-9.

[284]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 54.

[285]Exhibit 2.01 p 93.

[286]Exhibit 2.01 p 94.

[287]Exhibit 2.01 p 94.

[288]Exhibit 2.01 p 99.

[289]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 54.

[290]The importance of disclosing, and proving, assumed facts is explained in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 729-33 [59]-[68]. and Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, 738-41 [127]-[130].

[291]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 47.

[292]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 54 and 64.

[293]Exhibit 3.01 pp 2-3; Exhibit 4.06 p 4; Exhibit 4.02 p 1; Exhibit 4.08 p 8. 

[294]Exhibit 4.08 p 9.

[295]Exhibit 3.01 pp 2-3.

[296]Exhibit 4.08 pp 11-2.

[297]Exhibit 4.08 p 12.

[298]Exhibit 4.08 p 13.

[299]Exhibit 4.08 p 10; Exhibit 4.02 p 1.

[300]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 62.

[301]Outline of Argument for the Appellants p 28 [69]. 

[302]Exhibit 4.08 pp 5-6.

[303]See, for example, Exhibit 3.03 pp 12, and 15-22.

[304]Exhibit 8.11.

[305]Exhibit 6.05.

[306]Exhibit 3.04 pp 19 and 29.

[307]Outline of Argument for the Appellants p 39 [110].

[308]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 49 and 51.

[309]Exhibit 4.08 pp 5-6.

[310]Exhibit 4.03 p 3 and the many photographs in evidence before me.

[311][2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

[312][2003] QPEC 2; [2003] QPELR 414, 418 [21].

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

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

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

[316][2020] QCA 257; [2021] QPELR 1003.

[317]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1018 [51].

[318]Exhibit 3.02 p 39

[319]Exhibit 3.02 p 39.

[320]Exhibit 3.02 p 26.

[321]That said, I prefer the evidence of Mr Duane to that of Ms Meulman with respect to the results of a supply and demand analysis for the reasons outlined in the Written Submissions of the Co-respondents at pp 44-5 [177]-[180].  In addition, I do not accept the Appellants’ submissions that Ms Meulman’s opinions about the reduction in outflow were premised on an assumption that there would be two new centres rather than one.  On my review of Ms Meulman’s evidence, it is not apparent that the assumption to which the submissions refer underpinned Ms Meulman’s demand analysis.  Rather, it is a matter that appears to have informed her supply analysis only.

[322]Exhibit 3.02 p 17.

[323]Exhibit 4.04 p 5; Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 37.

[324]Exhibit 4.04 p 5; Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 37.

[325]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 38; Exhibit 3.02 p 34.

[326]Exhibit 3.02 pp 34 and 36.

[327]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 38.

[328]Exhibit 4.04 p 5.

[329]Exhibit 3.02 p 12.

[330]Exhibit 3.02 p 25; Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 38.

[331]Exhibit 3.02 p 25; Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 38.

[332]Exhibit 3.02 p 38.

[333]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 33.

[334]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 32-3.

[335]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 29-32.

[336]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.  See City Plan Table SC1.1.2.B—Defined activity groups: Exhibit 2.01 p 207.

[337]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 29.

[338]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 29-30.

[339]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.

[340]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31-2.

[341]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 32.

[342]Exhibit 4.03 p 3.

[343][2003] QPEC 5; [2003] QPELR 447.

[344]Luke & Os v Maroochy Shire Council & Anor 2003] QPEC 5; [2003] QPELR 447, 459, [55].

[345]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 27 June 2022) 42.

[346]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 82-3.

[347]Exhibit 8.02.

[348]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 30.

[349]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 34.

[350]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 34.

[351]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 34.

[352]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 35.

[353]Exhibit 2.02 p 45.

[354]Exhibit 2.02 p 45.

[355]Exhibit 2.02 p 48.

[356]Exhibit 2.02 p 59.

[357]Exhibit 2.01 p 86.

[358]Exhibit 2.01 p 88.

[359]Exhibit 2.01 p 114.

[360][1981] QPLR 33.

[361]William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35.

[362]The significance of compliance with the planning scheme as demonstrative of need for a proposed development was similarly recognised in Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, 15; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 413 [469] and 419 [508]; and Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 325, 272 [185]-[186].

[363]Exhibit 4.04 pp 8-10.

[364]Exhibit 8.02.

[365]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.

[366]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.

[367]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.

[368]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 32.

[369]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 27 June 2022) 45-7.

[370]Exhibit 4.03 p 3. 

[371]Exhibit 3.04 p 28.

[372]Exhibit 4.03 p 3. 

[373]Exhibit 4.03 p 3. 

[374]Exhibit 3.04 p 28.

[375]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 32.

[376]Exhibit 3.04 p 28.

[377]City Plan Table SC1.1.2.B—Defined activity groups: Exhibit 2.01 p 207.

[378]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 81.

[379]The existing lawful use of the subject land is a matter to which I must have regard: Planning Act 2016 s 45(5)(a) and Planning Regulation 2017 s 31(f).

Close

Editorial Notes

  • Published Case Name:

    Jezreel Pty Ltd & Anor v Brisbane City Council & Anor

  • Shortened Case Name:

    Jezreel Pty Ltd v Brisbane City Council

  • MNC:

    [2023] QPEC 7

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    27 Mar 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
1 citation
Jump To
Cite 1 - [2013] 1 Qd R 1
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
4 citations
Jump To
Cite 1 - [2021] QPELR 1003
Cite 2 - [2021] QPELR 1003
Cite 3 - [2021] QPELR 1003
Cite 4 - [2021] QPELR 1003
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
4 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Cite 3 - [2020] QCA 257
Cite 4 - [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
2 citations
Jump To
Cite 1 - [2019] QPEC 16
Cite 2 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 325
2 citations
Jump To
Cite 1 - [2022] QPELR 325
Cite 2 - [2022] QPELR 325
Bell v Brisbane City Council [2018] QCA 84
1 citation
Jump To
Cite 1 - [2018] QCA 84
Bell v Brisbane City Council (2018) 230 LGERA 374
1 citation
Jump To
Cite 1 - (2018) 230 LGERA 374
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
1 citation
Jump To
Cite 1 - (1997) 187 CLR 384
Gerhardt v Brisbane City Council (2017) 226 LGERA 257
1 citation
Jump To
Cite 1 - (2017) 226 LGERA 257
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council [2021] QPEC 33
1 citation
Jump To
Cite 1 - [2021] QPEC 33
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2022] QPELR 705
1 citation
Jump To
Cite 1 - [2022] QPELR 705
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
2 citations
Jump To
Cite 1 - [2001] QCA 116
Cite 2 - [2001] QCA 116
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
2 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Isgro v Gold Coast City Council [2003] QPEC 2
5 citations
Jump To
Cite 1 - [2003] QPEC 2
Cite 2 - [2003] QPEC 2
Cite 3 - [2003] QPEC 2
Cite 4 - [2003] QPEC 2
Cite 5 - [2003] QPEC 2
Isgro v Gold Coast City Council (2003) QPELR 414
5 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Cite 3 - (2003) QPELR 414
Cite 4 - (2003) QPELR 414
Cite 5 - (2003) QPELR 414
Jensen v Brisbane City Council & Anor [2022] QPELR 963
3 citations
Jump To
Cite 1 - [2022] QPELR 963
Cite 2 - [2022] QPELR 963
Cite 3 - [2022] QPELR 963
K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1
2 citations
Jump To
Cite 1 - [2011] QPEC 1
Cite 2 - [2011] QPEC 1
K Page Main Beach Pty Ltd v Gold Coast City Council & Ors (2011) 180 LGERA 278
2 citations
Jump To
Cite 1 - (2011) 180 LGERA 278
Cite 2 - (2011) 180 LGERA 278
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
2 citations
Jump To
Cite 1 - (1992) 174 CLR 178
Cite 2 - (1992) 174 CLR 178
Knight v FP Special Assets Ltd [1992] HCA 28
2 citations
Jump To
Cite 1 - [1992] HCA 28
Cite 2 - [1992] HCA 28
Luke v Maroochy Shire Council [2003] QPEC 5
3 citations
Jump To
Cite 1 - [2003] QPEC 5
Cite 2 - [2003] QPEC 5
Cite 3 - [2003] QPEC 5
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
3 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Cite 3 - (2003) QPELR 447
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 705
Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305
1 citation
Jump To
Cite 1 - (2001) NSWCA 305
McKay v Brisbane City Council [2021] QPEC 42
3 citations
Jump To
Cite 1 - [2021] QPEC 42
Cite 2 - [2021] QPEC 42
Cite 3 - [2021] QPEC 42
Murphy v Moreton Bay Regional Council [2019] QPEC 46
3 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Cite 3 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
3 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Cite 3 - [2020] QPELR 328
Northern Properties Pty Ltd v Brisbane City Council [2019] QPEC 66
2 citations
Jump To
Cite 1 - [2019] QPEC 66
Cite 2 - [2019] QPEC 66
Northern Properties Pty Ltd v Brisbane City Council [2020] QPELR 877
2 citations
Jump To
Cite 1 - [2020] QPELR 877
Cite 2 - [2020] QPELR 877
Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404
2 citations
Jump To
Cite 1 - (1994) 181 CLR 404
Cite 2 - (1994) 181 CLR 404
Page Main Beach Pty Ltd v Gold Coast City Council (2011) QPELR 406
2 citations
Jump To
Cite 1 - (2011) QPELR 406
Cite 2 - (2011) QPELR 406
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Purcell Family v Gold Coast City Council & Ors (2004) QPELR 521
2 citations
Jump To
Cite 1 - (2004) QPELR 521
Cite 2 - (2004) QPELR 521
SDA Property Nominees Pty Ltd v Scenic Rim Regional Council [2022] QPEC 39
2 citations
Jump To
Cite 1 - [2022] QPEC 39
Cite 2 - [2022] QPEC 39
Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12
2 citations
Jump To
Cite 1 - [1988] QPLR 12
Cite 2 - [1988] QPLR 12
Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54
2 citations
Jump To
Cite 1 - [1994] HCA 54
Cite 2 - [1994] HCA 54
The Purcell Family v Gold Coast City Council [2004] QPEC 9
2 citations
Jump To
Cite 1 - [2004] QPEC 9
Cite 2 - [2004] QPEC 9
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
6 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Cite 3 - [2021] QCA 95
Cite 4 - [2021] QCA 95
Cite 5 - [2021] QCA 95
Cite 6 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
6 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Cite 3 - [2022] QPELR 309
Cite 4 - [2022] QPELR 309
Cite 5 - [2022] QPELR 309
Cite 6 - [2022] QPELR 309
WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126
1 citation
Jump To
Cite 1 - [2010] QCA 126
Weinstock v Beck (2013) 251 CLR 396
2 citations
Jump To
Cite 1 - (2013) 251 CLR 396
Cite 2 - (2013) 251 CLR 396
Weinstock v Beck [2013] HCA 14
2 citations
Jump To
Cite 1 - [2013] HCA 14
Cite 2 - [2013] HCA 14
Wilhelm v Logan City Council [2020] QCA 273
3 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Cite 3 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Williams McEwans Pty Ltd v Brisbane City Council (1981) QPLR 33
2 citations
Jump To
Cite 1 - (1981) QPLR 33
Cite 2 - (1981) QPLR 33
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
Jump To
Cite 1 - (2014) 201 LGERA 82

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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