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CITE

Unreported Judgment
Appeal Pending

Ramsay Health Care Australia Pty Limited v Brisbane City Council[2024] QPEC 49McDonnell DCJ
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Ramsay Health Care Australia Pty Limited v Brisbane City Council[2024] QPEC 49

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Ramsay Health Care Australia Pty Limited v Brisbane City Council & Anor [2024] QPEC 49
PARTIES:	RAMSAY HEALTH CARE AUSTRALIA PTY LIMITED (ACN 003 184 889) (Appellant) v BRISBANE CITY COUNCIL (Respondent) and RON BUILD PTY LTD (ACN 122 509 479) (Co-Respondent)
FILE NO/S:	3130/23
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	21 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2024 – 25 September 2024
JUDGE:	McDonnell DCJ
ORDER:	The appeal is adjourned to 10 December 2024 for final orders
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where the submitter Appellant appeals against the Respondent’s decision to approve the Co-respondent’s development application for a Material Change of Use for Centre activities (Community care centre and Health care services) on Neighbourhood centre zoned land – where the Appellant operates the Greenslopes Private Hospital located directly opposite the Land the subject of the appeal – whether the Co-respondent was required to identify the particular services and tenants proposed in the development – whether the proposed development is an appropriate use of the Land – whether the proposed development provides “a mix of centre and community activities that is complementary to the Greenslopes Private Hospital” – whether the built form of the proposed development results in overdevelopment of the Land and is unacceptable – whether there is a need for the proposed development – whether the development application should be approved in the exercise of the planning discretion
CASES:	AB (a pseudonym) v Independent Broad-based Anti-Corruption Commission [2024] HCA 10 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6 Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 Inkerman Station Pty Ltd as Trustee for the Inkerman Station Trust v Allan & Ors (No. 2) [2017] QSC 243 Isgro v Gold Coast City Council & Anor [2003] QPEC 2 Luke v Maroochy Shire Council & Watpac Developments Pty Ltd [2003] QPEC 5 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Shun Pty Ltd v Logan City Council & Anor [2020] QPEC 31 Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor [2024] QPEC 44 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2021] QCA 95 Wilhelm v Logan City Council & Ors [2020] QCA 273 Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
LEGISLATION:	Planning Act 2016 (Qld) ss 45, 45(5), 45(7), 60(3) Planning and Environment Court Act 2016 (Qld) ss 43, 45(1), 46(2), 47(1) Planning Regulation 2017 (Qld) s 31(1)
COUNSEL:	G Thompson KC and N Batty for the Appellant K Buckley for the Respondent B Job KC and S Hedge for the Co-Respondent
SOLICITORS:	MacDonnells Law for the Appellant City Legal – Brisbane City Council for the Respondent Connor O'Meara Solicitors for the Co-Respondent

Introduction

[1]
Brisbane City Council (the Council) approved a development application by Ron Build Pty Ltd (Ron Build) for a Development Permit for a Material Change of Use for Centre activities (Community care centre and Health care services) on Neighbourhood centre zoned land, subject to conditions. The site is situated at 68 – 72 Hunter Street, Greenslopes (the Land). Ramsay Health Care Australia Pty Limited (Ramsay) operates the Greenslopes Private Hospital at Newdegate Street, Greenslopes, directly opposite the Land. It lodged a properly made submission opposing the development application. Following approval of the development application, Ramsay commenced this appeal.
[2]
A central issue in the appeal is whether the proposed development for Centre activities satisfies the requirements of the Coorparoo and districts neighbourhood plan code, and particularly OO3(i), by providing “... a mix of centre and community activities that is complementary to the Greenslopes Private Hospital.”

The Land and surrounding locality

[3]
The Land comprises three parcels having a total area of approximately 1,919m² and is located at the south-eastern corner of the T-intersection of Newdegate Street and Hunter Street. It has a frontage to Newdegate Street of approximately 39m and to Hunter Street of approximately 47m. It slopes from a highpoint in the south-eastern corner to a low point in the north-western corner. It is improved by three partly demolished residential dwellings.
[4]
Adjoining the Land to the south are vacant parcels which previously accommodated the Queensland Red Cross headquarters (the Legacy land). The buildings of between two and four storeys have been demolished. A recent approval has been granted on part of those parcels. Adjoining the Land to the east, at 64 – 66 Hunter Street, is a two storey multiple dwelling. It is typically set back from the common side boundary between 4.5m and 6.2m. At its closest point, it sits 1.8m from the side setback at the rear of that property.^[1] North of the Land, across Hunter Street, is a mix of one to three storey attached and detached dwellings.
[5]
The Greenslopes Private Hospital, Queensland’s largest private hospital, is located west of the Land, across Newdegate Street. It is a large development containing buildings up to six storeys. The land on which the Greenslopes Private Hospital is located is included in the Community facilities (Major health care) zone and has approval for the following uses: Hospital, Community care centre, Emergency services, Health care services and Child care centre.^[2] Mr Greenwell, the CEO of Greenslopes Private Hospital, confirmed that in addition to these uses, there are also two coffee shops and a pharmacy located at the Greenslopes Private Hospital. It provides a range of services including, but not limited to, emergency medicine, mental health services, allied health, intensive care, oncology, cardiology, dermatology, general surgery, gynaecology and fertility, immunology, neurology, obstetrics, pharmacy, radiology and rehabilitation.^[3] Greenslopes Private Hospital provides permanent and sessional doctors’ consulting suites and employs 2,335 staff across various departments. In addition to these staff, there are also 1,587 doctors recognised as credentialled visiting medical officers (VMO).^[4] These VMOs are not employed by Greenslopes Private Hospital, but are granted privileges to admit, consult and care for patients at the Greenslopes Private Hospital. If they wish to see patients onsite, the VMOs may utilise their own or a colleague’s purchased consulting suite, a leased suite or a sessional suite.^[5]

The planning context

[6]
When the development application was properly made, Version 26 of the Council’s City Plan 2014 (City Plan) was in force.^[6] Version 29 of the City Plan is now in effect. The designation and zoning of the Land is unchanged.
[7]
The City Plan includes the Land in the Neighbourhood centre zone and the Coorparoo and districts neighbourhood plan,^[7] but it is not contained within a neighbourhood plan precinct. The Land and the surrounding locality is mapped in the Suburban Living Area category.
[8]
The Land forms part of a larger area of land along Newdegate Street, opposite the Greenslopes Private Hospital, included in the Neighbourhood centre zone. The Neighbourhood centre zone extends along the eastern side of Newdegate Street, from Denman Street to the north, to Headfort Street to the south, including the Legacy land. The Land comprises approximately 30% of this Neighbourhood centre zoned land. Some of the Legacy land is mapped for park acquisition. This acquisition would reduce the total area available for Centre activities in this Neighbourhood centre.^[8]
[9]
The Infill housing precinct of the Character residential zone (CR2) applies to most of the land to the north, east and south-east of the Land. Other land in the locality is included in the Low-medium density residential zone, two or three storey mixed precinct (LMR2), the Low-medium density residential zone, up to three storey precinct (LMR3), and the Low-density residential zone.
[10]
The Greenslopes Private Hospital is included in the Greenslopes Private Hospital precinct of the Coorparoo and districts neighbourhood plan.
[11]
The City Plan provides that the applicable hierarchy of assessment benchmarks where there is inconsistency between provisions in the City Plan is that:
1. the Strategic framework prevails over all other components, to the extent of the inconsistency for impact assessment;
2. the Coorparoo and districts neighbourhood plan code prevails over zone codes, use codes and other development codes, to the extent of the inconsistency; and
3. the Neighbourhood centre zone code prevails over use codes and other development codes to the extent of any inconsistency.^[9]
[12]
Compliance with a code will only be achieved if the proposed development complies with either:
1. the purpose, overall outcomes, and performance outcomes of the code; or
2. the purpose, overall outcomes, and acceptable outcomes of the code.^[10]
[13]
“Centre activities” (where not Caretaker’s accommodation) in the Neighbourhood centre zone is:
1. accepted development, if involving an existing premises with no increase in gross floor area; and
2. subject to code assessment, if involving a new premises or an existing premises with an increase in gross floor area.^[11]
[14]
This sets community expectations as to uses which might occur on Neighbourhood centre zoned land. The trigger for the proposed development being impact assessable is that it is a new premises which exceeds 45% site cover.^[12]

The principles of statutory construction

[15]
The principles which apply to statutory construction similarly apply to the construction of planning documents.^[13] It is convenient to set these principles out.
[16]
In Project Blue Sky Inc v Australian Broadcasting Authority,^[14] McHugh, Gummow, Kirby and Hayne JJ said:

“[69]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71]
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.

[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 …” (Footnotes omitted)

[17]
Recently, the High Court in AB (a pseudonym) v Independent Broad-based Anti-Corruption Commission^[15] said:

“The interpretation of [a statutory provision] must “begin with a consideration of the text itself”, that is, the text of the statute as a whole. That said, ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy.” (Footnotes omitted)

[18]
As observed by Mullins P in Clarry & Anor v Brisbane City Council & Anor,^[16] the nature of planning instruments remains relevant to the task of construction, as there can be multiple codes or provisions applicable to the same site. They must be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.^[17]
[19]
As observed by Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council:^[18]

“[55]
The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the

“modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense …”

[56]
The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.

[57]
As was said by Chesterman JA in AAD Design:

“Planning schemes, and the definitions found in them, often lack clarity, contain ambiguities and sometimes appear contradictory. The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation. Nevertheless, Mr Hinson submits that the court should approach the task of construction in the manner described by Thomas J (with whom Ryan and McKenzie JJ agreed) in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360:

“To arrive at the so-called proper construction of such provisions involves a good deal of guess-work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well as obscure (cf. Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157, 162; Brown v Idofill Pty Ltd (1987) 64 LGRA 218, 227; Tainui Pty Ltd v Brown (1988) 65 LGRA 22, 27).”

[58]
However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC.” (Footnotes omitted)

Existing character of the locality

[20]
The local area has two predominant character types: the residential character east of Newdegate Street and the commercial and health care related built form comprising the Greenslopes Private Hospital, west of Newdegate Street. Newdegate Street acts as a “visual separator” between the residential and hospital uses.^[19]
[21]
The residential streetscapes are generally leafy, well vegetated and informed by a diverse range of detached and attached residential built form types set within these streetscapes. These include detached one to two storey residential dwellings, with some having a “traditional character” appearance, some contemporary detached dwellings and a number of two and three storey multiple dwellings with larger overall bulk, scale and form.^[20] The mixture of built form is evidenced in NP5, NP6 and NP7 of Exhibit 3, the Visual Amenity Joint Experts’ Report (VA JER). The effect of this is that the residential character is mixed and diverse.
[22]
When considering the existing local character, Mr Curtis opined that the visual impact of the built form of the Greenslopes Private Hospital precinct is “effectively mitigated by the setback of the built form from the street frontage and the partial screening provided by the landscaping along the Newdegate Street frontage”.^[21] This does not accord with the evidence of Mr Butcher, which I accept, that:

“[86]
The central hospital building presents as the largest structure within the Greenslopes Private Hospital and is highly visible from most areas within the local area. From Newdegate Street it is generally screened by other commercial built form such as the Ramsay Specialist Centre and the Greenslopes Specialist Centre. I consider these to be the most visible built form elements along the western side of Newdegate Street significantly impacting its streetscape character.

[87]
Whilst the landscaping along the frontage of the Greenslopes Private Hospital contributes to the leafy green character of Newdegate Street, I consider it does little to mitigate the visual impacts of or reduce the visibility of the more prominent buildings.”^[22]

[23]
Mr Butcher’s evidence is supported by the images LC08, LC09, LC20 and LC22 of the VA JER, and the photographs in Exhibit 27. The built form of the various components of the Greenslopes Private Hospital use is the most prominent form in and around the Land. These contemporary buildings are readily observable from Newdegate Street. The level of activity at the Greenslopes Private Hospital also influences character. The Greenslopes Private Hospital creates a commercial and non-residential character.
[24]
Mr Curtis agreed, and I accept, that:
1. the existing character of the Land and the immediate streetscape within 50m to 100m of the Land is best described as mixed. At present, the eastern side of Newdegate Street contains some traditional character elements; and
2. the Newdegate Street end of Hunter Street is in transition, with the traditional character improving as one moves away from the Greenslopes Private Hospital.^[23]
[25]
Mr Butcher identified the visual catchment as the local area where the development can be seen, and the local character perceived. He identified a localised ridgeline to the north-east and south of the Land defining the visual catchment of the local area in that direction and the Greenslopes Private Hospital defining the limit to the west of the Land.^[24] The Land cannot be seen from most of Hunter Street. Mr Powell and Mr Butcher agreed that the Land is not particularly prominent beyond the immediate locality. I accept this evidence because the Land is in the lowest part of Hunter Street, resulting in a low level of visibility within the visual catchment, despite its location at a T-intersection.^[25] This is apparent from Figures LCO2 and LC21 of the VA JER. A number of large trees block views to the Land from Hunter and Newdegate Streets.^[26] This proposal will obscure some of the views of the Greenslopes Private Hospital from Hunter Street, but the hospital will remain visible. Within the visual catchment, the Greenslopes Private Hospital will continue to have a dominant visual influence and remain the most prominent built form.^[27]

Future character of the locality

[26]
The City Plan envisages that the traditional character streetscapes will be protected and retained,^[28] but that an intensification of the Greenslopes Private Hospital is anticipated within the Greenslopes Private Hospital precinct.^[29] The Neighbourhood centre zoned land is to provide a mix of centre and community activities.^[30] A range of Centre activities^[31] is to be interspersed within residential neighbourhoods,^[32] in a form that reflects the neighbourhood role of the centre and the surrounding residential areas.^[33] Thus, the residential areas are reasonably expected to retain their residential character. However, this part of Newdegate Street, including the Land and the Greenslopes Private Hospital, is expected to continue to develop and intensify.
[27]
At present, the Neighbourhood centre zone is not reflected in the uses on the Neighbourhood centre zoned land. The land to the south is presently vacant, the Land contains partially demolished residential dwellings, and the land to the north contains residential dwellings and vacant land. Thus, the intended land use and character are not currently reflected on the Neighbourhood centre zoned land. This is likely to change, which in turn is likely to have the greatest impact upon the existing local character.^[34]
[28]
The future character is also informed by the recent Council approval for the Legacy land for:
1. Reconfiguring a Lot (3 into 2), with Lot 1 comprising 112m² for the new proposed park and Lot 2 comprising 813m² for the Office use; and
2. Material Change of Use for an Office and Building Works on a Local Heritage Place.
[29]
The office, a three storey building, will be located on the eastern most portion fronting Headfort Street. It is intended to “provide support to Legacy Clubs across Queensland and house several key veterans’ support services”. It is expected that the balance of the site will be acquired for a park. From the Headfort Street frontage, the pitched roof will be evident. However, from the proposed park, the office building will present as commercial in character.^[35]

The proposal

[30]
The application is for a Development Permit for a Material Change of Use for Centre activities (Community care centre and Health care service). Those uses are defined in Table SC1.1.1B of the City Plan:

“Community care centre—

(a)
means the use of premises for—

(i)
providing social support to members of the public; or

(ii)
providing medical care to members of the public, if the use is ancillary to the use in subparagraph (i); but

(b)
does not include the use of premises for providing accommodation to members of the public.

Examples of a Community care centre—disability support service, drop-in centre, respite centre, indigenous support centre.

Health care service means the use of premises for medical purposes, paramedical purposes, alternative health therapies or general health care, if overnight accommodation is not provided on the premises.

Examples of a Health care service—dental clinic, medical centre, physiotherapy clinic.”

[31]
“Health care service” expressly excludes “Hospital”, which is separately defined.
[32]
The uses fall within the “Centre activities” defined activity group. Defined activity groups represent a clustering of defined use terms, which are in turn applied to Part 5 of the City Plan (Tables of Assessment).^[36]
[33]
Ramsay said that while Ron Build is not required by any legislative or City Plan provision to identify the particular services and tenants proposed in the development, by failing to do so, Ron Build must address all of the potential services and tenancies. Further, it says because Ron Build has not done so, the Court cannot be satisfied that:
1. the proposed development is complementary to Greenslopes Private Hospital as required by the City Plan; and
2. the potential services and tenancies are appropriate from a town planning, economic need and medical perspective.
[34]
Ron Build identified the expected tenancies in Exhibit 38, but maintains that the proposal, if approved, will not include uses beyond those the subject of the development application.
[35]
I do not accept Ramsay’s submissions for the following reasons.
[36]
First, there is no requirement in the City Plan, the Development Assessment Rules, nor the applicable legislation to do other than identify the uses for which a development permit is sought. Mr Perkins’ evidence is that there is no requirement under the City Plan to provide greater details of the particular defined land use term proposed, except if necessary to satisfy particular City Plan requirements, for example, car parking rates. That is not a requirement that arises in the present circumstances.
[37]
Second, the City Plan intends that land in the Neighbourhood centre zone has land use flexibility and expects there to be changes over time. That flexibility is demonstrated by the large number of material changes of uses that are accepted development if in an existing building, and subject to certain requirements.
[38]
Third, to identify and assess each potential service and tenancy is not practical. Column 3 of the use definition tables of the City Plan identifies examples of types of activities that are consistent with the use identified in column 1. Column 4 identifies examples of activities that are not consistent with the column 1 use. However, these lists are expressly stated not to be exhaustive. The uses listed in columns 3 and 4, which are not listed in column 1, do not form part of the definition.^[37] There is no exhaustive list of potential activities that are consistent or inconsistent with the intended use. Nor can there be. The uses for which approval is sought are defined in the City Plan. Those are the uses proposed. It is the development application which must be assessed. The approach by Ron Build in its development application as to the specificity of the uses is entirely orthodox.
[39]
Fourth, I accept that for the purposes of assessing the development application, this level of detail is not required. The experts did not require that the tenancies and services be identified. Mr Perkins, Mr Ryan, Mr Duane and Mr Brown said that it was not necessary to know the exact tenancy mix or size to undertake their assessment. Mr Musk accepted that it is the orthodox approach to apply for uses, rather than tenancies. That Mr Adamson was concerned there was insufficient detail, where that information would not ordinarily be included in a development application, causes me to place less weight on Mr Adamson’s evidence.
[40]
The proposed development comprises a single building of three storeys above ground and three basement levels of car parking, with 114 car parking spaces and 6 motorcycle spaces. Pedestrian and vehicular access is proposed from Newdegate Street. The height of the top of the roof is approximately 14.75m and 16.4m to the highest point on the top of the lift overrun. The building’s horizontal dimensions are approximately 33m by 40m.^[38] The building is contemporary in appearance. Approximately 20.6% of the site area will be landscaped. It incorporates:
1. a variable setback to the Newdegate Street frontage of a minimum of 950mm to the central lobby, adjacent lift and stair cores, and a 3.2m setback to the flanking building walls extending to the north and south;
2. a 4.3m setback to the Hunter Street frontage, increasing to 5m in the north-east corner;
3. a 4m – 11.1m setback at ground level to the eastern side boundary and a 4m – 4.1m setback above ground level;
4. a minimum 11.3m setback at ground level to the southern side boundary, and a minimum 2m setback above ground (increasing to 3m in the south-west corner); and
5. separation from the two storey multiple dwelling at 64 – 66 Hunter Street, to the east, by a minimum of 5.9m.

What is the statutory assessment and decision-making framework?

[41]
The appeal is to be determined under the Planning Act 2016 (Qld) (Planning Act) and the Planning and Environment Court Act 2016 (Qld) (PECA), and proceeds by way of hearing anew.^[39] The Court assesses the development application under s 45 of the Planning Act as if it were the assessment manager.^[40] In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.^[41] Ron Build bears the onus in the appeal.^[42]
[42]
As the development application was subject to impact assessment,^[43] the assessment:

(a)
must be carried out:

(i)
against the relevant assessment benchmarks in a categorising instrument that was in effect when the development application was properly made, relevantly the City Plan;^[44] and

(ii)
having regard to any matters prescribed by the Planning Regulation 2017 (Qld);^[45] and

(b)
may be carried out against, or having regard to, any relevant matter, other than a person’s personal circumstances, financial or otherwise.^[46]

[43]
The assessment and decision making process is to be approached consistently with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,^[47] Abeleda & Anor v Brisbane City Council & Anor,^[48] Wilhelm v Logan City Council & Ors,^[49] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors.^[50] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.^[51] 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.^[52]
[44]
Section 60(3) of the Planning Act confers a broad discretion in deciding an impact assessable application. The decision-maker is to balance the factors to which consideration may be given. The factors in favour of approval and the factors in favour of refusal have to be balanced and the weight to be attributed to each factor is a matter for the decision-maker. Non-compliance with an assessment benchmark does not necessarily dictate refusal of a development application. The Planning Act does not alter the characterisation of the City Plan as a reflection of the public interest. The extent to which a flexible approach to the exercise of discretion will prevail will turn on the facts and circumstances of each case, including the nature and extent of the non-compliance, if any, identified with an assessment benchmark.

Properly made submissions

[45]
Five properly made submissions were received by the Council.^[53] All submissions opposed the development. Apart from the submission by Ramsay, three of the submitters are located close to the Land, in Hunter Street, Nicholson Street and Headfort Street. No submission was received from the neighbour located closest to the boundary of the Land, at 66A Hunter Street.^[54] The submissions raise the following areas of concern:
1. use and its compatibility with the zoning, that it does not provide a variety of services, is not of a small scale and will service more than the local community;
2. bulk, height (including obstruction of sunlight) and scale, is incompatible with the residential zoning of the neighbourhood;
3. design; and
4. traffic and parking.
[46]
The City Plan informs the community’s reasonable expectations as to the development that may occur on the Land. These objections are a credible source of evidence as to the expectations of the local community.^[55] The built form concerns expressed in the submissions are that the building is out of scale with the largely one to two storey buildings in the area, and exceeds the allowable site cover. For the reasons below, these expectations are not reasonable as they are not consistent with the City Plan. Traffic and parking are no longer in issue in the appeal. The other issues were the subject of expert consideration and cross-examination in the course of the appeal. I am satisfied that they have been analysed extensively. In the course of dealing with the issues in dispute, I have been conscious of the submitters’ concerns.

What are the issues requiring determination?

[47]
The appeal proceeded on the basis of a Consolidated List of Issues, which had been particularised.^[56] These issues require the following questions to be determined:
1. whether the proposed development is an appropriate use of the Land;
2. whether the built form of the proposed development will result in overdevelopment of the Land and be unacceptable;
3. whether there is a need for the proposed development; and
4. whether there are relevant matters that support approval or refusal of the application.
[48]
Need arises in two ways:
1. whether there is compliance with the assessment benchmarks that the proposal “service local residents”, “directly support local residents” and “service local population needs”; and
2. as a relevant matter.

Is the proposed development an appropriate use of the Land?

[49]
Ramsay contends that the proposed development is an unacceptable land use having regard to the following assessment benchmarks:
1. Strategic framework – 3.3 Theme 1: Brisbane’s globally competitive economy, Element 1.3 – Brisbane’s population serving economy – Specific outcome SO4 and Land use strategy L4, 3.7 Theme 5: Brisbane’s CityShape, Element 5.5 – Brisbane’s Suburban Living Areas – Specific outcomes SO1, SO2 and SO6 (and associated Land use strategies);
2. Coorparoo and districts neighbourhood plan code – 7.2.3.10 Purpose (1), Overall outcomes 3(i) and 5(a); and
3. Neighbourhood centre zone code – 6.2.2.4 Purpose 1(a) and 1(b), Overall outcomes 3(a), 4(a), (c) and (f).^[57]
[50]
The appropriateness of the use requires consideration of the following questions:
1. whether the proposal complies with the benchmarks in the Strategic framework and Neighbourhood centre zone code that it service local population needs and support local residents;
2. whether the proposal is appropriate for the zone and is small scale; and
3. whether the proposed development satisfies the requirements of the Coorparoo and districts neighbourhood plan code, and particularly OO3(i) by providing “... a mix of centre and community activities that is complementary to the Greenslopes Private Hospital”.

Context of the City Plan intent for the land use

[51]
The Strategic framework “sets the policy direction” for the City Plan and “forms the basis for ensuring appropriate development occurs”.^[58] The “Land use strategies” include:

“L2.1 Element 1.1 – Brisbane as a centre for global business

Development around … hospitals … supports these locations as clusters of related innovative enterprises with easily accessible associated professional and personal services.

L9 Element 1.3 – Brisbane’s population-serving economy

Professional, business and other associated and supporting services and facilities cluster around larger scale public and private health, … and other community facilities.”^[59]

[52]
At the Strategic framework level, the City Plan recognises the importance of the provision and co-location of health uses:
1. Brisbane is renowned for the quality of its health services, with a strong economy that will continue to expand and diversify;^[60]
2. Brisbane is a city where world-leading health services are supported to grow;^[61]
3. development around hospitals supports these locations as clusters, with easily accessible associated professional and personal services;^[62] and
4. professional, business and other associated and supporting services and facilities cluster around larger scale public and private health and other community facilities.^[63]
[53]
The Strategic framework also contains objectives related to centres including that:
1. district centres and neighbourhood centres service local population needs and continue to evolve offering an “increasing range of local services and facilities”;^[64] and
2. in the Suburban Living Areas centres, community facilities (including Community care centre)^[65] are located as indicated in neighbourhood plans and the zoning pattern, and there is to be a range of non-residential land uses that “generally” support the needs of the surrounding residential area.^[66]
[54]
Due to the nature and location of the proposal, it will be an associated or supporting service that will be part of a cluster, in the Neighbourhood centre zone, around a hospital as intended by the Strategic Framework.
[55]
Zones organise the City Plan area in a way that “facilitates the location of preferred or acceptable land uses”. Inclusion of the Land in the Neighbourhood centre zone indicates an intention that a broad range of “Centre activities” are anticipated.
[56]
The Neighbourhood centre zone code purpose, role Overall outcomes and location and use Overall outcomes support the policy direction of the Strategic Framework. The built form and scale of proposed development is to respond to its local context. As built form (height and site cover) are the triggers for Centre activities being impact assessable in the Neighbourhood centre zone, this suggests that it is not the uses, but the built form, that is the focus of the City Plan.
[57]
In respect of the Neighbourhood centre zone code:

(a)
the purpose of the zone is to “provide for” … “a small variety of uses and activities to service local residents”, and “other small-scale uses and activities that directly support local residents, including … community services … or offices”. Although not defined, “Community services” include “Community care centre”.^[67] An “Office” is the use of premises for, relevantly, “the practice of a profession”;

(b)
zone role outcomes intend that development in the zone “supports the implementation of the policy direction” set out in nominated Strategic framework provisions;^[68]

(i)
provides “a range of centre activities” comprising commercial, retail, services and community functions with “a level of economic and social activity that serves the convenience needs of the local neighbourhood catchment”;^[69]

(ii)
is “tailored to its specific location” and to the “role of the individual centre” and is consistent with the location specific provisions in the relevant neighbourhood plan;^[70] and

(iii)
“serves” local resident needs, rather than local residents “only”;^[71] and

(d)
development form Overall outcomes intend that development reflect the “district function” of the zone.

[58]
The purpose of the Coorparoo and districts neighbourhood plan code is to “provide finer-grained planning at a local level for the Coorparoo and districts neighbourhood plan area”. The Coorparoo and districts neighbourhood plan code provides:
1. development on the land on Newdegate Street between Denman and Headfort Streets is to provide “a mix of centre and community activities that is complementary to the Greenslopes Private Hospital”;^[72]
2. the Land is in the Neighbourhood centre zone, rather than the Community facilities zone, which is the precinct that applies to the Greenslopes Private Hospital; and
3. the expansion of the Greenslopes Private Hospital and associated medical activities into the surrounding residential area is not supported.
[59]
Pursuant to the Centre or mixed use code, development is intended to be “tailored to the location of the site” and is to provide a land use mix which includes “complementary uses such as retail, employment, residential and community facilities”.^[73]

Local need

[60]
A number of assessment benchmarks call for a consideration of the development’s capacity to serve and support a local need.
[61]
At a Strategic framework level, it is intended that both district and neighbourhood centres “continue to service local population needs”^[74] and “continue to evolve, offering an increasing range of local services and facilities”.^[75] Proposals are to “offers small-scale, low-impact local convenience services”^[76] and “function as local neighbourhood service providers.”^[77]
[62]
The purpose of the Neighbourhood centre zone is to “provide for” … “a small variety of uses and activities to service local residents” and “other small-scale uses and activities that directly support local residents, including … community services … ”.^[78] This is achieved through Overall outcomes including the location and use Overall outcomes, which require development “provides a range of centre activities comprising commercial, retail, service and community function, with a level of economic and social activity that serves the convenience needs of the local neighbourhood catchment”.^[79] Development is to be “tailored to its specific location” and to the “role of the individual centre”, consistent with the location specific provisions of the Coorparoo and districts neighbourhood plan, and also “serves local resident needs”.^[80]
[63]
These provisions do not require that development should only service a local need. That the use must serve or support local needs does not mean that a development serving a wider catchment, or non-local residents, is not supported by the provisions.
[64]
As observed by Mr Ryan:

“… the planning scheme controls the type and intensity of uses through a combination of built form controls (height/setbacks/car parking) and the extent of zoned land (i.e. typically smaller land parcels are unable to accommodate higher intensity uses due to the inability to accommodate the use and parking/servicing). Having established the centre, and built form controls, City Plan does not actively seek to limit the intensity of land use (or the catchment it serves).”^[81]

[65]
The City Plan indicates that there is a need for Health care services and Community care centres in the local area because the Land is included in the Neighbourhood centre zone and the zone contemplates the uses. It makes Health care services and Community care centre accepted development in the zone with minimal requirements, if in an existing premises with no increase in gross floor area and complying with the Acceptable outcomes in Section A of the Centre or mixed use code.
[66]
Having regard to the nature of the uses, the convenient location of the Land opposite the Greenslopes Private Hospital in the Neighbourhood centre zone, and that the proposal will serve a local need,^[82] I am satisfied that the proposal complies with the relevant assessment benchmarks requiring that it services and directly supports local residents and their needs. For these reasons, there is compliance with SO4 of Element 1.3, Theme 1 of the Strategic framework, and Purpose 1(a) and (b) and OO4(f) of the Neighbourhood centre zone code.

Small scale

[67]
The issue of the scale of the development arises in both Specific outcome 6 of Theme 5, Element 5.5 of the Strategic framework and the purpose of the Neighbourhood centre zone code. SO6 provides “Neighbourhood centres offer small-scale, low impact local convenience services”. The purpose of the Neighbourhood centre zone code states:

“The purpose of the neighbourhood centre zone is to provide for:

a.
a small variety of uses and activities to service local residents; and

b.
other small-scale uses and activities that directly support local residents, including, for example, community services, convenience shops or offices.”

[68]
The Acceptable outcomes of the Centre or mixed use code provide an acceptable building envelope for development in the zone. As discussed below, the building is almost entirely contained within the building envelope set by the Acceptable outcomes. The building is compliant with the City Plan height requirements. In that context, the development is of the scale intended by the City Plan. I am satisfied that the proposal is small scale as it is of a height, scale and form envisaged in the local catchment.
[69]
The evidence establishes that the use will serve a local need.^[83] The need experts agreed that the proposal will service need beyond the local community. To the extent this causes the proposal to not be small scale, I am satisfied that any non-compliance does not weigh in favour of refusal. This is because there is an absence of material adverse consequences arising from the Community care centre and Health care services in this location. Traffic and acoustic matters are not in issue. Visual amenity impacts do not suggest other than that the proposal is low impact. From the perspective of amenity, the proposal is low impact. There is a public benefit arising from the uses in this location.
[70]
For these reasons, I am satisfied that the purpose of the Neighbourhood centre zone code and SO6 of Theme 5, Element 5.5 of the Strategic framework are satisfied.

A mix of centre and community activities that is complementary to the Greenslopes Private Hospital

[71]
Overall outcome 3(i) of the Coorparoo and districts neighbourhood plan code provides that:

“The overall outcomes for the Neighbourhood plan area are … [d]evelopment on Newdegate Street between Denman Street and Headfort Street provides a mix of centre and community activities that is complementary to the Greenslopes Private Hospital.”

[72]
There is some ambiguity in OO3(i). Interpreted strictly, it includes the Greenslopes Private Hospital land and only land on Newdegate Street. However, reading the City Plan as a whole, this provision applies to the land in the Neighbourhood centre zone, including those parcels in that zone, but not fronting Newdegate Street, and does not apply to the land in the Greenslopes Private Hospital precinct. This is because there are specific provisions in the Coorparoo and districts neighbourhood plan code which address development in the Greenslopes Private Hospital precinct. This construction gives meaning to the inclusion of the parcels in the Neighbourhood centre zone which do not front Newdegate Street.
[73]
Not every Neighbourhood centre is expected to have the same mix of land uses. Development in the Neighbourhood centre zone is to be tailored to the location and role of the specific centre, consistently with the location specific provisions of the Coorparoo and districts neighbourhood plan. As the use is for Centre activities, and the proposal will serve a local need, I am satisfied that the proposal provides a range and mix of centre activities that serves the convenience needs of the local neighbourhood catchment in compliance with OO4(a) of the Neighbourhood centre zone code.
[74]
The City Plan does not define “complementary”.
[75]
The primary submission of Ron Build and the Council is that “complementary” is used in the provision in a technical town planning sense because:
1. it is in the City Plan, which is a town planning instrument, and a document written and used by town planners to assess development applications; and
2. what must be “complementary” is the “mix of centre and community activities”, which calls for a consideration of how a mix of activities or uses work together. This interaction of land uses, in the context of seeking to advance the public interest, is fundamentally a town planning issue.
[76]
I am not persuaded that the word has been used in a technical town planning sense. While it is used in a planning scheme, it is a common word in the English language. In the absence of a definition in the City Plan, the word should be given its ordinary meaning, consistent with the context in which it appears, consistently with the settled principles of statutory interpretation set out above.
[77]
The Macquarie Dictionary defines “complementary” as “forming a complement; completing”. “Complement” is defined as “that which completes or makes perfect”.^[84] The context includes that what must be “complementary” is the “mix of centre and community activities”.
[78]
There are several bases upon which Ramsay submits that the proposal will not complete or make perfect the Greenslopes Private Hospital, and so is not “complementary”:
1. that the use is not envisaged on the Land as expansion of the Greenslopes Private Hospital and “associated medical activities” are limited to the Greenslopes Private Hospital precinct;
2. that the proposal would hinder the continued operation and further expansion of the Greenslopes Private Hospital; and
3. that the proposal would compete with, or duplicate medical activities at, the Greenslopes Private Hospital.
[79]
The meaning of “complementary” has been considered in Inkerman Station Pty Ltd as Trustee for the Inkerman Station Trust v Allan & Ors (No. 2) (Inkerman),^[85] Shun Pty Ltd v Logan City Council & Anor,^[86] and most recently in Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor.^[87] These authorities confirm the importance of the context. Henry J in Inkerman considered complementary in the context of completing something that is already whole or complete in its own right. However, the provision there under consideration included the words “and does not interfere with”. In those circumstances, his Honour concluded that a use will be “complementary” if it enhances or adds something beneficial to the original purpose.
[80]
I am not persuaded that the present context requires that the use not interfere with the Greenslopes Private Hospital (whether by hindering its continued operation or its further expansion, or by competing with it). However, even if, consistently with Ramsay’s submission, this was also required, I am satisfied that the proposal is “complementary” for the reasons which follow.
[81]
Ramsay relies upon OO5(a) and (b) to support its submission that when the Coorparoo and districts neighbourhood plan code is read as a whole, there is a clear planning intent to restrict not only the Greenslopes Private Hospital, but also “associated medical activities”, from expanding out of the Greenslopes Private Hospital precinct. I do not accept this construction. OO5(a) and (b) provide:

“Greenslopes Private Hospital precinct (Coorparoo and district neighbourhood plan/NPP-002) overall outcomes are:

Development in the Greenslopes Private Hospital precinct allows for the continued operation and intensification of the hospital within its current site area.

The expansion of the hospital and associated medical activities into the surrounding residential area is not supported.”

[82]
Ramsay’s approach requires the “surrounding residential area” to be construed to include the Land. In support of this, reliance is placed upon PO6 and Figure b of the Coorparoo and districts neighbourhood plan code. PO6 applies to land in the Greenslopes Private Hospital precinct and provides:

“Development is designed to provide a transition from larger buildings in the interior of the site to a height, scale and form around the periphery of the site that is compatible with future development envisaged in surrounding residential areas as indicated in Figure b.”

[83]
The Land does not form part of the “surrounding residential area”. Properly construed, PO6 refers to Figure b to identify the transition, not the surrounding residential area. This is consistent with what is depicted in Figure b. Figure b depicts the Greenslopes Private Hospital precinct and the building heights within that precinct which will achieve the transition. It does not depict or seek to define the “surrounding residential area”. This construction gives meaning to Figure b and PO6, which is consistent with the zoning of the locality, and the future intent for the area. OO5(b) construed in this manner is consistent with OO3(i), which provides that a mix of centre and community activities will occur on the Land. It is also consistent with the zoning of the Land.
[84]
The particulars of the issue of the “use” proposed provide the development would “hinder the continued operation and future expansion of the Greenslopes Private Hospital to the extent it includes tenancies which are not already accommodated”, relying upon OO5(a). It was suggested that this hindrance may take the form of delaying further development of the Greenslopes Private Hospital, including for its consulting suites, or otherwise adversely impact upon the Greenslopes Private Hospital.
[85]
OO5(a) does not apply to the Land. Rather, it applies to land in the Greenslopes Private Hospital precinct. The City Plan provides that development in that precinct is to allow for the continued operation and intensification of the Greenslopes Private Hospital. This is different to precluding particular development from occurring outside the precinct.
[86]
This provision of the City Plan does not use the word “hinder”. It arises from Ramsay’s construction of “complementary”, that for the development to “allow” for the continued operation and intensification of the hospital, the development must not hinder its future expansion, and because the proposal is not needed, it would hinder that expansion. However, if the construction for which Ramsay contends is correct, I am not persuaded that development on the Land would hinder the continued operation and future expansion of the Greenslopes Private Hospital for the following reasons.
[87]
First, Mr Greenwell submitted an internal application in August 2024 for approval for additional consulting suites at Greenslopes Private Hospital. No mention is made of the proposal the subject of this appeal in this application to the Ramsay committee. This suggests that the development application is not relevant to the decision to progress the expansion of consulting suites at the Greenslopes Private Hospital. Thus, I am not persuaded that approval of this development application would significantly impact on Mr Greenwell’s ability to obtain final approval from the relevant Ramsay committees for expansion of the onsite consulting suites at Greenslopes Private Hospital. I accept the evidence of Ms Favelle that the proposal poses little threat to Greenslopes Private Hospital, due to its market share of the private hospital activity in Queensland.^[88]
[88]
Second, while there are times available in the sessional suites, there are limited suites available for permanent lease and no suites available for purchase at the Greenslopes Private Hospital.^[89] Mr Greenwell is in discussions with someone to lease approximately half of the 300m² private suite space presently available for lease, although no lease has yet been signed.
[89]
Third, Mr Rowley, Dr Boothroyd and Dr Bach, practitioners at the Greenslopes Private Hospital, expressed concerns about the ensuing competition from businesses opening in the proposal, and possible patient confusion between the proposal and the Greenslopes Private Hospital, which might lead to reputational harm.
[90]
The concerns expressed about competition were largely about private interests, rather than a threat to the viability of the Greenslopes Private Hospital or the practices of the practitioners. The risk of patient confusion is addressed by advertising. Dr Boothroyd markets two different practices in a manner designed to ensure patients are not confused. As Ms Favelle said, a patient would be able to tell the difference between Ramsay branded services and services that are not so branded.
[91]
Reputational concerns can be addressed by public and private regulation. There is significant regulation of medical practitioners in Australia to ensure quality standards and patient safety are maintained, including by registration with specialist colleges and by the Australian Health Practitioner Regulation Agency. An additional layer of protection afforded the reputation of medical practitioners at the Greenslopes Private Hospital is the hospital’s accreditation. A medical practitioner may only use the Greenslopes Private Hospital consulting or sessional suites if they are accredited. Accreditation is also required for a VMO, whether they have a suite on site or not. Accreditation at Greenslopes Private Hospital requires that Ramsay determine: (a) there is a need for a doctor of that speciality at Greenslopes Private Hospital; and (b) the doctor meets Ramsay’s criteria.
[92]
Fourth, there is an economic and community need for the proposal.
[93]
The evidence which I accept demonstrates that the Greenslopes Private Hospital will continue to function and provide services to the community, including the local community, and possible expansion will not be delayed. The proposal satisfies OO5(a) of the Coorparoo and districts neighbourhood plan code as the Greenslopes Private Hospital will be allowed to continue to operate and intensify.
[94]
I do not accept that to be “complementary”, development should not compete with, or duplicate medical activities offered at, the Greenslopes Private Hospital. OO3(i) requires the “mix of centre and community activities” be complementary to the Greenslopes Private Hospital. It is not about individual uses within the Greenslopes Private Hospital. This might be viewed differently if the services offered by the Greenslopes Private Hospital were impacted such that they might close. This would be a disbenefit to the community. However, that was not the evidence. The City Plan contemplates uses that compete with the Greenslopes Private Hospital offer would occur on the Land as they are accepted development or code assessable development if they comply with certain requirements. Flexibility is envisaged in the Neighbourhood centre zone, as evidenced by the City Plan treatment of the uses if occurring within an existing building, and the expectation that Neighbourhood centres continue to evolve. Further, as Mr Greenwell observed, Greenslopes Private Hospital is constantly evolving. There is no mechanism in the City Plan requiring a point in time assessment of the particular uses or tenancies within the Greenslopes Private Hospital to be undertaken in advance of the making of a development application over land in the Neighbourhood centre zone. Such an approach is not supported by the City Plan. Nor is it practical, as it suggests that each time a use changes on the Greenslopes Private Hospital, uses on the neighbouring Neighbourhood centre zoned land must also change.
[95]
The evidence does not establish that the Greenslopes Private Hospital will fail if this proposal proceeds. Nor do I accept that the function of the Greenslopes Private Hospital will be impacted if this development application is approved. This suggests that the proposal is “complementary to the Greenslopes Private Hospital”.
[96]
The Greenslopes Private Hospital has approval for Community care centre and Health care service. To the extent the hospital presently includes these uses, the proposal will address a local need as it will have a higher proportion of visits from the local area than the Greenslopes Private Hospital, providing a mix of Centre activities in the form of Health care service and Community care centre uses complementary to the Greenslopes Private Hospital. For these reasons, I am satisfied that the proposal complies with OO3(i). This is a factor which weighs heavily in favour of approval.
[97]
Even if the proposal is not “complementary”, and so is not compliant with OO3(i), I would not afford significant weight to this non-compliance because:
1. the Strategic framework envisages that professional, associated and supporting services cluster around larger scale health facilities;
2. Neighbourhood centres are expected to continue to evolve, offering an increasing range of local services and facilities;
3. the Land is in the Neighbourhood centre zone. If the proposed use were to take place on the Land and the site cover were less than 45%, the application for the use would be code assessable;
4. the non-compliance will not cause public disbenefit. The proposal groups uses that can sit comfortably with the Greenslopes Private Hospital. The co-location of the proposal with the Greenslopes Private Hospital will be a public benefit, offering convenience and choice, which is supported by the provisions of the Strategic framework; and
5. the proposal will not give rise to adverse amenity impacts.
[98]
Further, any non-compliance arises only in the sense that the uses are not “complementary”. For the reasons contained at [73], I am satisfied that the proposal provides a mix of uses and activities. Such uses are envisaged by the Strategic framework, in particular L2.1 and L9. The Strategic framework also contains objectives related to centres including that:
1. they provide for “a diverse mix of highly accessible retail and commercial locations to service a growing population”, and that retail and commercial uses accord with the CityShape Theme 5 and the zoning pattern;^[90]
2. both district centres and neighbourhood centres service local population needs and continue to evolve offering “an increasing range of local services and facilities”;^[91]
3. In Suburban Living Areas, centres and community facilities, including Community care centre, are located as indicated in neighbourhood plans and the zoning pattern, and there is to be a range of non-residential land uses that “generally” support the needs of the surrounding residential area;^[92] and
4. the zoning pattern shows the development intent that is “consistent with local values, constraints and opportunities” in the Suburban Living Areas.^[93]
[99]
Compliance with OO3(i) of the Coorparoo and districts neighbourhood plan demonstrates compliance with OO4(c)(i) and (ii) of the Neighbourhood centre zone code. As I am satisfied that the land use is appropriate having regard to the benchmarks in issue, the proposal complies with SO1 and SO2 of Theme 5, Element 5.5 of the Strategic framework. As the Strategic framework provisions in dispute are satisfied, OO3(a) of the Neighbourhood centre zone code is satisfied. That the proposed development is an appropriate use of the Land is a matter which weighs in favour of approval.

Will the built form of the proposed development result in overdevelopment of the Land and be unacceptable?

[100]
Ramsay contends that the proposed development should be refused for reasons of overdevelopment and unacceptable built form, having regard to the following assessment benchmarks:
1. Strategic Framework – 3.7 Theme 5: Brisbane’s CityShape, Element 5.5 – Brisbane’s Suburban Living Areas – Specific outcome SO6 and associated Land use strategies;
2. Coorparoo and districts neighbourhood plan code – 7.2.3.10 Purpose (1), Overall outcomes 3(e), (i) and (j), PO1 and AO1, PO3 and AO3;
3. Neighbourhood centre zone code – 6.2.2.4 Purpose 1(b), Overall outcomes 3 and 5(a), (b) and (c);^[94] and
4. Centre or mixed use code – 9.3.3 Overall outcomes 2(d), (g)(i) and (p), PO21 and AO21, PO23 and AO23, PO24 and AO24, PO26 and AO26, PO27 and AO27.1, PO28 and AO28, PO29 and AO29, PO56 and AO56.^[95]
[101]
Ramsay relies upon the height, bulk, scale, dimensions, site cover, floor area, setbacks, transitions and separations to say it is a visually dominant building and is an unacceptable overdevelopment of the Land. It says that the bulk and form of the proposal is inconsistent and incompatible with the existing and intended character of the locality.
[102]
The Court had the benefit of expert evidence from Mr Curtis, Mr Powell and Mr Butcher, experts nominated in the areas of visual amenity, and Mr Perkins, Mr Ryan and Mr Adamson, the town planners, to address these issues. Regard was also had to the plans, elevations and renders in evidence.
[103]
Ramsay was critical of the failure to provide photomontages, and said that in their absence, there was no evidence of the proposed built form in context with neighbouring buildings. Mr Curtis, Mr Powell and Mr Butcher each said they were able to form their views about the proposal absent photomontages. They relied upon the plans, elevations and renders of the proposal and photographs of the area to form their opinions. Given their expertise and experience, I am comfortably satisfied that the absence of photomontages did not hinder the visual amenity experts in forming their opinions and assisting the Court.
[104]
The relevant assessment benchmarks call for a consideration of the following matters:
1. what is the relevant visual catchment in which to assess the proposal;
2. does the bulk and form of the proposal comply with the existing and intended character of the locality;
3. does the visual transition of the proposal comply with the relevant assessment benchmarks, including whether the proposed landscaping mitigates the bulk and scale of the development and complements the existing streetscape; and
4. what is the impact of any non-compliance on the amenity and character of the visual catchment.
[105]
The existing and intended character of the locality and the relevant visual catchment are identified above.

Bulk and form

[106]
The Centre or mixed use code provides quantitative benchmarks relevant to built form.

PO21/AO21

[107]
AO21 sets a permitted building envelope governed by site cover, height and setbacks/separation distances. The site cover and height are compliant with the Acceptable outcome.^[96] The setback and separation are non-compliant such that the built form exceeds the Acceptable outcome compliant building envelope by 1.09% of the site area at ground level and 2.85% of the site area above ground level.^[97] Thus, there is a non-compliance with the front and side setback requirements (AO21(c)) and building separation requirements (AO21(d)).^[98] PO21 is directed towards the building bulk and scale being consistent with the intended form and character of the centre, mixed use or local area. These marginal exceedances are not indicative of overdevelopment. As dealt with below, the proposal contributes to the creation of a cohesive and high-quality streetscape by its built form and proposed landscaping, and the Land is an area of transition to the residential area. As such, I am satisfied that the form of the proposed building is consistent with the intended form and character of a Neighbourhood centre, and so is compliant with PO21.

PO24/AO24

[108]
The setback proposed at ground level at Newdegate Street is 950mm to the entrance and lift tower, 2.65m to the slab edge/screening and 3.35m to the wall glazing. There is non-compliance at the front setbacks to Newdegate Street at ground level and above ground level, and on Hunter Street above ground level.^[99] Ramsay’s concern is the requirement that the front setbacks “relate to the existing streetscape and setback pattern and reinforce the preferred character and form intent”. Mr Curtis’s primary concern with respect to the Newdegate Street frontage was the external wall, as he did not consider the landscaping trellis would be effective. However, he accepted that the building on the Newdegate Street frontage will be superior to anything that exists on Newdegate Street from Denman Street to Nicholson Street, other than one residential building and the proposed park on the Legacy land.^[100] Conditions can be imposed requiring the maintenance of the landscaping on the trellis. The proposed landscaping on the Hunter Street frontage will provide consistency with the generally leafy streetscape. The setback will relate to the existing mixed streetscape and reinforce the preferred character. For these reasons, and because I am satisfied that the proposal is consistent with the mixed character of the locality, PO24 is satisfied.

PO26/AO26

[109]
The ground floor’s southern side setback, to the Legacy land, is compliant with AO26. There is a non-compliance for the floors above ground level, with the setback of 1.4m to the slab edge, and 2.1m to the wall/glazing less than the 3m required.^[101] As the Acceptable outcomes provide an alternative method of compliance which is a 0m setback to a blank wall, this non-compliance is minimal. Mr Curtis accepted that he had no real concerns about this interface. The articulated setback provides the potential future use of the Legacy land with an attractive interface. The treatment of the façade will contribute to the rhythm and pattern of the streetscape, particularly where it adjoins the proposed park. I am satisfied that the proposal complies with PO26.

PO27/AO27

[110]
There is a non-compliance with AO27 because the building separation to the eastern adjoining neighbour on the floors above ground level is 100mm less than the 6m required, for an 8m long portion of the Level 1 eastern glazing line.^[102] As confined by the particulars, PO27 calls for a consideration of consistency with character and the provision of visual amenity to the adjoining neighbours.
[111]
I am satisfied that the extent of the non-compliance will be imperceptible for the purposes of considering impacts of bulk, scale and appearance. In this location, the adjoining residential façade has high window sills,^[103] and there is substantial deep planting and landscaping on that side of the development which will mitigate any impacts. This landscaping is apparent from the approved landscaping plans.^[104] For the reasons set out in relation to PO23, I am satisfied that the proposed development complies with PO27.

PO28/AO28

[112]
As demonstrated in Exhibit 26, the proposed development does not comply with AO28 because it is not contained within the Acceptable outcome building envelope for the Land. PO28 requires development to be of an intensity that supports both the strategic and local role and function of the centre and the development of a vibrant public realm. As the height and site cover are appropriate and the setback exceedances are minimal, I am satisfied that the intensity is acceptable, and so PO28 is satisfied.

PO29/AO29

[113]
As the site cover is less than 90%, the proposal complies with AO29.

PO56/AO56

[114]
Mr Curtis calculates that the deep planting proposed is 8.23%. In undertaking this calculation, he relied upon approved Drawing AO3.03 Revision E. While this is an approved drawing, it is not the approved landscape drawing. Mr Butcher and Mr Powell calculated the on-site deep planting as 10.46%, by reference to the approved landscape drawings. This drawing depicts an area of deep planting in addition to those depicted on Drawing AO3.03 Revision E. I proceed on the basis that landscaping will be provided in accordance with the approved landscaping drawings.
[115]
There remains a non-compliance with AO56.2(b) because the stormwater pipe, through a portion of the area proposed for deep planting, means there is not a minimum of 4m in any direction. I accept the evidence that the presence of this pipe would not physically affect the growth of trees above or below the ground. I am satisfied that this technical non-compliance will not impact on the provision and maintenance of the requisite deep planting.
[116]
The deep planting areas are sufficient to meet the requirements of PO56, establishing vegetation to contribute to landscape character, planting large subtropical trees complementary in scale and height to the building form, and providing effective shade or screening to building outdoor spaces and adjoining uses. I accept the evidence of Mr Powell and Mr Butcher that the trees planted over the basement on the northern side of the proposed development facing Hunter Street can be supported with minor mounding of the soil. The proposed landscaping is appropriate for the proposal including the built form and the protection of the amenity of adjoining uses. For these reasons, and the reasons concerning PO27, I am satisfied that the proposal is compliant with PO3 of the Coorparoo and districts neighbourhood plan code.

Features of the building

[117]
The visual amenity experts agreed that the proposed building was high quality and attractive. The projecting floor slabs at the first and second floor levels and the roof level provide expression, and the extensive floor to ceiling fenestration provides transparency that assists to mitigate visual bulk.^[105]
[118]
Mr Curtis considered the Newdegate Street frontage to be dominated by the projecting full height external wall to the service core. He opined that the proposed trellis landscaping would not effectively mitigate the overbearing impact of this wall. The Newdegate Street façade contains the lift core and undercroft. The wall will be treated with climbing landscaping. The renders demonstrate detailing on the building including screens, fenestration, stepping of the Newdegate Street setback, landscaping in the setbacks and on the Newdegate Street façade. The Hunter Street façade will include screening and fenestration. I accept Mr Powell’s evidence that this finer-grained detailing across the building will maintain a human scale and ensure a positive streetscape outcome on these frontages.^[106] This is supported by the renders.
[119]
The Land is not visible, or is barely visible, from those areas where the character is strongest. This is because of the topography, with the Land being at the lower end of Hunter Street, and that the strongest traditional character is away from the Land. Mr Curtis agreed with Mr Powell regarding the features of the building and that they broke down the built form. The effect of the built form will be further mitigated by the existing street trees and proposed landscaping.
[120]
Ultimately, Ramsay accepted the proposed building is three storeys in height. This height is similar to that in the surrounding residential area, which ranges between one and three storeys. I am satisfied that the proposal is of a height similar to, and can co-exist with, the surrounding low density residential area in compliance with OO5(b) of the Neighbourhood centre zone code because:
1. the City Plan anticipates buildings of up to three storeys on the Land;
2. that area includes residential buildings up to three storeys;
3. the proposal will be the same height as the proposed office on the Legacy land; and
4. the Land is located between the residential area and the Greenslopes Private Hospital, offering transition in height, built form and character.
[121]
The non-compliances with the setback and separation distance benchmarks do not weigh in favour of refusal of the development application. This is because the height, bulk, scale and character of the building respects and reflects the mixed character and partly commercial, partly residential streetscape of the area and the intended character of the locality.

Visual transition and streetscape

[122]
Whether the visual transition of the proposal is appropriate will be informed by an assessment of benchmarks dealing with deep planting, transitions and setbacks. While the key interface is the eastern interface of the proposed building to the Character residential zoned land, the transition of the building to its surrounds, more broadly, must also be considered.
[123]
The building will be set 3.6m above the highest point of the adjoining residential building at 64 – 66A Hunter Street. The surrounding residential area contains attached and detached dwellings of between one and three storeys in height. The land adjoining to the south will be developed with a three storey commercial building. The residential building adjoining the Land is a two storey modern building, with a pitched roof on one side and a rectilinear western façade to the proposed development. The rear unit in that complex is the most likely to be impacted. Figure 12 in Exhibit 4, Mr Powell’s Separate Report, shows this side of the building. The building separation is discussed at PO27/AO27.
[124]
I am satisfied that the proposed development achieves a sensitive transition to the surrounding lower density residential areas because it:
1. has only three storeys;
2. is only 3.6m higher than the highest point of the adjoining residential dwelling;
3. is at a lower elevation than the eastern end of Hunter Street, so sits lower in the street; and
4. provides setbacks and landscaping to the eastern interface.
[125]
The Land is in an area of transition between the large rectilinear built form of the Greenslopes Private Hospital and the mix of traditional and contemporary built form of the residential uses. The setbacks allow for generous landscaping which integrate and soften the built form. The vegetated setbacks, in combination with the built form transition, contribute to the cohesive streetscape of Hunter Street and Newdegate Street. The proposal provides a sensitive transition in terms of built form, character and intensity between the Greenslopes Private Hospital and the residential area. This is achieved by the use of rectilinear building forms, softened by screening and battens to articulate the façades and mitigate impacts. This transitional built form contributes to the creation of a cohesive streetscape by uniting the built forms to the east and west. For these reasons, the proposal is compliant with OO5(c) of the Neighbourhood centre zone code.
[126]
The setbacks to the north and east boundaries are compliant. I am satisfied that the development complies with AO23.1 because no building height transition requirements are stated in the Coorparoo and districts neighbourhood plan, and the building height within 10m of the common boundary is no more than one storey greater than the maximum Acceptable outcome for building height on the adjoining site. Ron Build concedes a non-compliance with AO23.2(b)(iii) because there are not variations in the wall and roof plane every 10m on each side of the building. Ramsay’s concerns with respect to PO23 relate to the stepping down in height and scale, and minimising visual impacts.
[127]
Mr Curtis and Mr Powell adopted consistent meanings of articulation and modulation when considering this provision. They said “modulation” refers to varied setbacks and “articulation” to secondary visual fragmentation of a building’s appearance by smaller elements such as windows, external finishes and colours, and the application of screens or shading devices. These words are not defined in the City Plan. I did not find the Macquarie Dictionary definitions helpful in the context of this provision. As the parties did not take issue with these meanings adopted by the experts, I adopt these meanings for the purpose of considering this provision.
[128]
The modulation and articulation of the building is demonstrated in the renders. These demonstrate that there is significant articulation and interest on each side of the building. The built form and landscaping combined are shown in Figures 10, 11 and 12 of Mr Powell’s Separate Report, Exhibit 4.
[129]
While I accept there is a loose rhythm established by the lot sizes and driveways in Hunter Street, it is disrupted by the different sizes of the buildings on those parcels. This is because the older style houses are generally smaller, but the redeveloped houses, contemporary dwellings and multiple dwellings exhibit a larger built form. The detailing on the building including screens, fenestration, stepping of the western setbacks, and landscaping on the façade and in the setbacks, respects the existing character.
[130]
The proposal will constitute a “stepping down” from the large built forms of the Greenslopes Private Hospital where the built form is up to six storeys and the site is more elevated than the Land. Within the proposal itself, the built form steps down in scale and height due to building features and topography as illustrated in Figure 8 of Exhibit 4, the Separate Report of Mr Powell. For these reasons, I am satisfied that the building steps down within the Land and provides for a transition in height from the Greenslopes Private Hospital to the surrounding residential area. This transitioning is also assisted by the modulation and articulation of the building and the proposed landscaping.
[131]
For the reasons already given, I am satisfied that the building height is appropriate and due to the topography in the locality, the proposal will not be visually dominant. Accordingly, I am satisfied that the proposal complies with PO23.
[132]
The proposal is consistent with the intended amenity and character for the Land. It will contribute to the creation of a cohesive and high-quality streetscape given the design, the proposed vegetation and the location of the Land between the Greenslopes Private Hospital precinct and the residential neighbourhood on Neighbourhood centre zoned land. The proposed landscaping and the street trees provide additional screening and support the transitional role of the Land. The built form of the proposal, including its transition and contribution to the streetscape, is appropriate having regard to the assessment benchmarks. It will not result in overdevelopment of the Land. The Land has only one residential neighbour and any impacts on this neighbour are effectively mitigated by the design.
[133]
For these reasons, the proposal complies with OO2(d), (g)(i) and (p) of the Centre or mixed use code, and OO5(a) of the Neighbourhood centre zone code. There is compliance with Purpose 1 and OO3(e) and (f) of the Coorparoo and districts neighbourhood plan code. While the Land is not in a precinct under the Coorparoo and districts neighbourhood plan code, the proposal is of a height, scale and form that contributes to a cohesive streetscape and built form character, and is otherwise compliant with PO1. Compliance with these provisions is a matter which weighs in favour of approval.

Is there a need for the proposed development?

[134]
Ramsay says there is no need for the proposed development. Further, it says that the Court could not be satisfied that there is a need for the proposed development because there is uncertainty surrounding the scope and nature of the proposed development, and that Mr Duane and Mr Brown have placed reliance on the ‘likely’ tenancy makeup of the proposal.
[135]
For the reasons set out at [33] to [39], I am satisfied that the proposal is sufficiently certain to enable assessment of the development application. It is apparent that Exhibit 38 as to the possible composition of tenancies in the proposal, was a factor the need experts relied upon to inform their analysis. However, it was simply one factor. I am satisfied that the experts, having accepted that a tenancy schedule was not required to enable assessment, formed their opinions based on a consideration of the development application.
[136]
Before turning to the evidence, it is helpful to identify the well-established principles which inform and guide an assessment of need. They are conveniently summarised in Isgro v Gold Coast City Council & Anor:^[107]
1. a use is needed if it would, on balance, improve the services and facilities available in the locality;
2. need, in planning terms, does not mean pressing or critical need, or even a widespread desire;
3. the question of need is decided from the perspective of the community, and not that of an applicant, commercial competitor or those who make adverse submissions;
4. providing competition in choice can be a matter which provides for a need;
5. any possible adverse effect on existing business will only be relevant to the extent there is a risk of a reduction in the level of services enjoyed by the community by depressing one provider, and not replacing it with another; and
6. need is a relative concept to be given greater or lesser weight depending on all of the circumstances.
[137]
In that decision, his Honour Judge Wilson SC (as his Honour then was) stated:

“[21]
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 is not being adequately met …”^[108] (References omitted)

[138]
Planning need is not limited to the need for the proposed development on the particular site in question and no other site. The existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter, depending on all the circumstances of the case.^[109]
[139]
In Luke v Maroochy Shire Council & Watpac Developments Pty Ltd,^[110] the Court observed:

“[35]
The question whether need exists is to be decided from the perspective of a community and not that of the applicant for development, its competitors or objectors. Otherwise, the weight to be afforded to it is not fixed and where, as here, the apparent public or community need for the proposed facility is strong and relates to a basic requirement of the resident population it is, plainly, a matter to which considerable weight must be given.”^[111] (Footnotes omitted)

[140]
These are general statements of principle that inform and guide an assessment of need. They are not a checklist that must be established in every case. Rather, the assessment of need is a flexible process. This has long been recognised and was confirmed by the Court of Appeal in Yorkeys Knob BP Pty Ltd v Cairns Regional Council.^[112]
[141]
As previously observed by the Court, “when … the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high …”.^[113] This Court has previously observed, in the context of the consideration of need, that a significant benefit that a proposal would bring to a community was the provision for the co-location of Health care services within a short walk to a private hospital.^[114] A similar approach to the provision of Health care services and Community care centres is appropriate where, as here, the City Plan indicates a deliberate intention to make provision for such uses on the Land.
[142]
The Court was assisted in the consideration of need by the evidence of Mr Musk, Mr Duane and Mr Brown. Mr White and Ms Favelle gave evidence about medical/clinical demand for the proposal.
[143]
In forming their opinions, Mr Musk, Mr Duane and Mr Brown each determined a different local catchment. Despite this, there were areas of agreement in their evidence.
[144]
They agreed that there were more medical practitioners per capita in the local catchment surrounding the Greenslopes Private Hospital (whichever catchment was used) than the greater Brisbane average.^[115] Mr Duane and Mr Brown observed that this was a consequence of the clustering of health services in the nearby area, at Greenslopes around the Greenslopes Private Hospital, around the Princess Alexandra Hospital, and around the cluster of hospitals at South Brisbane, including the Mater Hospital and the Queensland Children’s Hospital.^[116] They considered that the higher than average provision did not mean that the area had no further need of Health care services or Community care centres. Only 12% to 13% of Greenslopes Private Hospital patients come from the area identified by Mr Duane as his local catchment area.^[117] Mr Duane opined that as a smaller development with a more limited provision of services, the proposal would have a higher proportion of visits from the local area.^[118] I accept the evidence of Mr Duane and Mr Brown that “the presence and proximity of these major health facilities drives the demand for health and medical practitioner and related floor space within areas close to those hospitals”.^[119] One of the reasons for the concentration of health services in the area is the location of the various hospitals.
[145]
For those reasons, I am satisfied that the higher than average provision of medical practitioners does not mean that the area has no further need of Health care services or Community care centres. This is because the distribution of health and medical practitioners is not uniform across a city or region.
[146]
The need experts each anticipate a significant increase in the number of persons within their respective local catchment area, indicating that demand will increase significantly over time.^[120] Mr White and Ms Favelle, the medical demand experts, agreed that the expected population increase would drive a demand for all types of medical services.^[121] Mr White was concerned that a shortage of general practitioners would mean that there is less demand for health care floor space. I accept Mr Duane’s evidence that workforce shortages are predicted to occur in about 20 to 30 years, not in the short term. Further, I accept that the market will likely respond to this shortage of general practitioners. The economists agreed that the population of their identified catchments is ageing. The growing population, as well as the ageing of those populations, will add to demand for a range of Health care services.
[147]
Ramsay says that any existing and future need for the proposed uses can be accommodated in the vacant and approved Health care services floor space. Mr Musk’s supply analysis took into account premises that are not appropriate for medical uses, and also premises that have been partly or fully leased. For this reason, I prefer the evidence of Mr Duane that with around 5,000m² to 6,000m² of potential Health care services floor space, there was still substantial demand for Health care services in the local area. To the extent that some of the floor space is approved for potential Health care services, or may be used for Health care services, those services will not have the same locational benefits as are enjoyed by the Land.
[148]
Mr Duane identifies the need for further medical professional floorspace by 2046, and the following additional features that indicate that the demand for medical and healthcare services is growing in Australia:
1. the employment category of healthcare and social assistance is growing quickly and is expected to rise 25% over the next ten years, compared to general employment growth of 14.2%; and
2. within that category, general practitioners and specialists are projected to grow by 29% over ten years.
[149]
I accept Mr Duane’s evidence that there is a particular demand for medical professional floorspace in the area given its proximity to the Greenslopes Private Hospital. That there is demand for further medical facilities is evidenced by Ramsay’s plans for expansion and its receipt of unsolicited expressions of interest for more than 1,700m² of clinical suite floorspace.
[150]
There are indicia of need in this locality including that there is limited availability of private consulting suites at the Greenslopes Private Hospital, there is expressed interest in investing in the area, there have been expressions of interest to occupy suites in this proposal and proposed suites at Greenslopes Private Hospital, and there is a willingness for the market to build near hospitals.
[151]
There is community benefit in the clustering of these uses around hospitals. The proposal will add to choice and competition. The evidence establishes that there is an economic and community need for the proposed development, which is appropriately located to serve the needs of local residents.^[122]

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

[152]
I am satisfied that the issues in dispute do not call for refusal of the development application. This is the significant matter which weighs in favour of approval.
[153]
The following relevant matters were raised in support of refusal of the proposed development:

(a)
it has not been demonstrated that the proposed use will complement Greenslopes Private Hospital;

(b)
it has not been demonstrated that impacts associated with the proposed development can be appropriately and acceptably managed as follows:

(i)
bulk and scale; and

(ii)
visual amenity;

(d)
the proposed development will not serve the convenience needs of the local neighbourhood catchment;

(e)
the properly made submissions advance compelling reasons for refusal and should be given significant weight, and that those reasons include:

(i)
the proposed development constitutes an inappropriate and unacceptable use of the Land;

(ii)
the proposed development would hinder, and possibly prevent, the future expansion of Greenslopes Private Hospital;

(iii)
the commercial nature and built form of the proposed development would give rise to unacceptable impacts and is beyond reasonable community expectations; and

(iv)
the proposal does not provide a mix of centre and community activities that are complementary to the existing Greenslopes Private Hospital;

(f)
there are no conditions that could be imposed to remedy non-compliance with the relevant assessment benchmarks;

(g)
there are no other relevant matters that support approval; and

(h)
the non-compliances are meaningful. The proposal is inconsistent with the planning intent for the Land. The proposed development would cause meaningful and unacceptable planning and amenity impacts.

[154]
These matters are dealt with in the course of these reasons and do not weigh in support of refusal. To the extent there is non-compliance with the assessment benchmarks, I am satisfied that these non-compliances do not warrant refusal of the development application. There are a number of positive factors which persuade me of the merits of the proposal. The proposal has a high-quality built form, consistent with the surrounding character, which will contribute positively to developing a high-quality Neighbourhood centre. This high-quality built form and the proposed landscaping ensure the proposal sensitively transitions to surrounding low density areas. It provides a mix of centre and community activities that are complementary to the Greenslopes Private Hospital. The Centre activities will cater for a local need for Health care services and Community care centres and will benefit the community by its location in a Neighbourhood centre opposite the Greenslopes Private Hospital. In the circumstances, I am satisfied that the development application ought be approved subject to conditions.

Conclusion

[155]
Ron Build has discharged the onus. When final orders are made, the appeal should be allowed in part and the development application should be approved subject to conditions. The Council is to prepare a draft conditions package and provide it to the other parties for their consideration. The appeal is adjourned to 10 December 2024 for the making of final orders.

Annexure A

[156]
The provisions of the City Plan in issue relevant to the issue of use are set out below.
[157]
Specific outcome SO4 and the associated Land use strategy L4 from Theme 1: Brisbane’s globally competitive economy, Element 1.3 – Brisbane’s population-serving economy from the Strategic framework provides:

Specific outcomes

Land use strategies

SO4

Brisbane’s district centres and neighbourhood centres continue to service local population needs.

District centres and neighbourhood centres continue to evolve, offering an increasing range of local services and facilities.

[158]
Specific outcomes SO1, SO2 and SO6 and the associated Land use strategies from Theme 5: Brisbane’s CityShape, Element 5.5 – Brisbane’s Suburban Living Areas of the Strategic framework provide:

Specific outcomes

Land use strategies

SO1

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

The zoning pattern shows the development intent that is consistent with local values, constraints and opportunities in the Suburban Living Areas.

SO2

Suburban Living Areas experience limited growth, providing predominantly detached housing for residents.

L2.1

Development for housing is restricted to detached housing and any on-site secondary dwelling in the majority of Suburban Living Areas.

L2.2

Development is restricted in terms of the lot sizes, configurations and circumstances suitable for subdivision and small-scale housing infill development.

…

SO6

Neighbourhood centres offer small-scale, low-impact local convenience services.

L6.1

Neighbourhood centres are interspersed within residential neighbourhoods and function as local neighbourhood service providers.

L6.2

Neighbourhood centres are of a scale which is consistent with surrounding detached housing.

L6.3

A new neighbourhood centre which is not in a location provided for in a zone, zone precinct, or neighbourhood plan is to:

a.
have a gross floor area of 2,500m² or less and a maximum tenancy size of 2,000m² or less;

b.
have a frontage predominantly to a major road;

c.
have vehicle site access from a suburban road, a district road or a neighbourhood road;

d.
be 400m or less walking distance from a dedicated public pedestrian access point of a public transport stop or station with a service frequency of 3 or more services per hour in peak periods;

e.
be more than 400m from an existing retail based centre;

f.
manage the impact on the amenity and character of adjacent uses and the locality consistent with the overall outcomes for the zone, zone precinct and neighbourhood plan for the surrounding uses and locality.

[159]
Purposes 1(a) and 1(b) of the Neighbourhood centre zone code provide that:

“1.
The purpose of the neighbourhood centre zone is to provide for:

a.
a small variety of uses and activities to service local residents; and

b.
other small-scale uses and activities that directly support local residents, including, for example, community services, convenience shops or offices.”

[160]
The Neighbourhood centre zone code role Overall outcome 3(a) provides:

“a.
Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular:

i.
Theme 1: Brisbane’s globally competitive economy and Element 1.3 – Brisbane’s population-serving economy;

ii.
Theme 5: Brisbane’s CityShape and Element 5.5 – Brisbane’s Suburban Living Areas.”

[161]
The Neighbourhood centre zone code development location and uses Overall outcomes 4(a), (c) and (f) provide:

“a.
Development provides a range of centre activities, comprising commercial, retail, service and community functions, with a level of economic and social activity that serves the convenience needs of the local neighbourhood catchment.

c.
Development is:

i.
tailored to its specific location and to the role of the individual centre;

ii.
consistent with the location-specific provisions in the relevant neighbourhood plan.

f.
Development serves local resident needs and complements the surrounding lower density residential environment.”

[162]
Purpose (1) of the Coorparoo and districts neighbourhood plan code is to “provide finer-grained planning at a local level for the Coorparoo and districts neighbourhood plan area”.
[163]
Overall outcome 3(i) for the Coorparoo and districts neighbourhood plan area is:

“i.
Development on Newdegate Street between Denman Street and Headfort Street provides a mix of centre and community activities that is complementary to the Greenslopes Private Hospital.”

[164]
Overall outcome 5(a) of the Coorparoo and districts neighbourhood plan code provides:

“Greenslopes Private Hospital precinct (Coorparoo and district neighbourhood plan/NPP-002) overall outcomes are:

a.
Development in the Greenslopes Private Hospital precinct allows for the continued operation and intensification of the hospital within its current site area.”

[165]
The provisions of the City Plan in issue relevant to the issue of built form are set out below.
[166]
Specific outcome SO6 and the associated Land use strategy from Theme 5: Brisbane’s CityShape, Element 5.5 – Brisbane’s Suburban Living Areas of the Strategic framework provides:

Specific outcomes

Land use strategies

SO6

Neighbourhood centres offer small-scale, low-impact local convenience services.

L6.1

Neighbourhood centres are interspersed within residential neighbourhoods and function as local neighbourhood service providers.

L6.2

Neighbourhood centres are of a scale which is consistent with surrounding detached housing.

L6.3

A new neighbourhood centre which is not in a location provided for in a zone, zone precinct, or neighbourhood plan is to:

a.
have a gross floor area of 2,500m² or less and a maximum tenancy size of 2,000m² or less;

b.
have a frontage predominantly to a major road;

c.
have vehicle site access from a suburban road, a district road or a neighbourhood road;

d.
be 400m or less walking distance from a dedicated public pedestrian access point of a public transport stop or station with a service frequency of 3 or more services per hour in peak periods;

e.
be more than 400m from an existing retail based centre;

f.
manage the impact on the amenity and character of adjacent uses and the locality consistent with the overall outcomes for the zone, zone precinct and neighbourhood plan for the surrounding uses and locality.

[167]
Purpose 1(b) of the Neighbourhood centre zone code provides that:

“1.
The purpose of the neighbourhood centre zone is to provide for:

b.
other small-scale uses and activities that directly support local residents, including, for example, community services, convenience shops or offices.”

[168]
The Neighbourhood centre zone code role Overall outcome 3(a) provides:

“a.
Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular:

i.
Theme 1: Brisbane’s globally competitive economy and Element 1.3 – Brisbane’s population-serving economy;

ii.
Theme 5: Brisbane’s CityShape and Element 5.5 – Brisbane’s Suburban Living Areas.”

[169]
Development form Overall outcomes 5(a), (b) and (c) of the Neighbourhood centre zone code provide:

“a.
Development is of a scale and intensity that reflects the neighbourhood role of the centre and surrounding low density residential areas, maintains a human scale, and respects existing heritage, character and grain.

b.
Development provides for a low rise built form of up to 3 storeys, reflective of the district function of the Neighbourhood centre zone and is of a height similar to and able to co-exist with surrounding low density residential areas.

c.
Development incorporates a height and setback that sensitively transitions to surrounding low density areas.

[170]
Purpose (1) of the Coorparoo and districts neighbourhood plan code is to “provide finer-grained planning at a local level for the Coorparoo and districts neighbourhood plan area”.

[171]
Overall outcomes 3(e), (i) and (j) for the neighbourhood plan area of the Coorparoo and districts neighbourhood plan code are:

“e.
Development demonstrates high-quality built form and public realm outcomes that contribute to a strong sense of place and the creation of high quality streetscapes.

i.
Development on Newdegate Street between Denman Street and Headfort Street provides a mix of centre and community activities that is complementary to the Greenslopes Private Hospital.

j.
Development is of a height, scale and form which is consistent with the amenity, character and infrastructure assumptions intended for the relevant precinct, sub-precinct or site.”

[172]
Performance outcomes PO1 and PO3 (and the associated Acceptable outcomes) of the Coorparoo and districts neighbourhood plan code are:

Performance outcomes

Acceptable outcomes

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:

a.
consistent with the anticipated density and assumed infrastructure demand;

b.
aligned to community expectations about the number of storeys to be built;

c.
proportionate to and commensurate with the utility of the site area and frontage width;

d.
designed so as not to cause a significant and undue adverse amenity impact to adjoining development.

AO1

Development complies with the number of storeys in Table 7.2.3.10.3.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.

Note—Council’s Independent Design Advisory Panel may be invited to provide advice on development, to facilitate high quality development, in accordance with the provisions of the independent design advisory panel planning scheme policy.

PO3

Development provides a high level of amenity for adjoining residential buildings and incorporates subtropical design principles to support healthy, energy efficient living.

AO3.1

Development incorporates the following subtropical design principles:

a.
cross-ventilation in and around buildings by use of building forms, breezeways, open courtyards and landscaped areas;

b.
sun shading of openings;

c.
suitable building orientation;

d.
building form that maximises amenity, street activity and pedestrian connectivity;

e.
deep planting within setbacks along common boundaries and frontages.

AO3.2

Development is designed to ensure that adjoining residential buildings:

a.
retain access to natural light, sunlight and breeze;

b.
maintain privacy through the positioning of balconies or habitable rooms.

[173]
Overall outcomes 2(d), (g)(i) and (p) of the Centre or mixed use code provide:

“2.
The purpose of the code will be achieved through the following overall outcomes:

d.
Development ensures that the site area and frontage is sufficient for the scale and form of development and is sufficient to manage the impacts to a lower intensity use or a sensitive use in and adjoining the development.

g.
Development intensity, bulk, scale and form is:

i.
consistent with the intended function, spatial arrangement and type of centre or corridor, as expressed in the zone, zone precinct and neighbourhood plan outcomes;

p.
Development uses side boundary setbacks and built form height transitions in or adjoining a low density residential area to manage the interface with those areas and reflect the amenity, privacy, form and character of those areas.

[174]
PO21, PO23, PO24, PO26, PO27, PO28, PO29 and PO56 (and the associated Acceptable outcomes) of the Centre or mixed use code are:

PO21

Development ensures that the building bulk and scale is consistent with the intended form and character of the centre, mixed use or local area considering:

a.
existing buildings to be retained;

b.
existing significant vegetation;

c.
significant infrastructure constraints;

d.
adjoining existing and proposed building height;

e.
adjoining existing and proposed building setbacks and separation of buildings necessary to ensure impacts on amenity and privacy are minimised;

f.
building height transitions where required.

AO21

Development is contained within the building envelope for the site by applying:

a.
the maximum building height;

b.
building height transition requirements, where required;

c.
front, rear and side setback requirements;

d.
building separation requirements;

e.
car parking setback requirements;

f.
active frontage requirements for stand-alone shopping centres or shops or for development in traditional strip centres or corridors.

Refer to Figure c and Figure d examples.

Note—The building envelope must include all requirements from any applicable overlay codes or a neighbourhood plan.

Note—This can be demonstrated by a building envelope plan, elevations and sections.

…

PO23

Development where identified in a neighbourhood plan as a building height transitions, or where sharing a common boundary with, or located fronting a minor road that is opposite, premises in the Low-medium density residential zone, Low density residential zone or Character residential zone provides buildings that are reduced in bulk and form to provide a transitional built form of a compatible scale which protects the amenity of lower density residential areas bordering centre or mixed use areas by:

a.
stepping down in height and scale;

b.
minimising impacts including those from overlooking and visual dominance;

c.
maintaining adequate levels of natural ventilation and light penetration to a habitable room, balcony and private open space.

AO23.1

Development where identified in a neighbourhood plan as a building height transitions or where sharing a common boundary with premises in the Low-medium density residential zone, Low density residential zone or Character residential zone provides a building height transition which complies with:

a.
a neighbourhood plan; or;

b.
if no neighbourhood plan applies, or no requirements are specified in the neighbourhood plan, the following:

i.
the building height within 10m of the common boundary is no more than 1 storey greater than the maximum acceptable outcome for building height on the adjoining site;

ii.
the building height within 20m of the common boundary is no more than 2 storeys greater than the maximum acceptable outcome for building height on the adjoining site;

iii.
all structures, except adjoining boundary fences, are set back a minimum of 4m from the common boundary;

iv.
an acoustic and visual screen fence of 2m height is provided on the common boundary.

AO23.2

Development where located fronting a minor road that is opposite premises in the Low—medium density residential zone, Low density residential zone or Character residential zone provides a building height transition which complies with:

a.
a neighbourhood plan; or

b.
if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the following:

i.
the building height within 10m of the front boundary is no more than 2 storeys greater than the maximum acceptable outcome for building height on a site located on the opposite side of the minor road;

ii.
all structures, except boundary fences are set back a minimum of 4m from the front boundary;

iii.
buildings are provided with modulation and articulation with variations in the wall and roof plane every 10m.

Note—Minor road is defined in the Transport, access, parking and servicing planning scheme policy. Where mixed residential and non-residential development, site access may be provided from a minor road for the residential component of the development

PO24

Development ensures that the front boundary setbacks:

a.
positively define the street edge;

b.
relate to the existing streetscape and setback pattern and reinforce the preferred character and form intent;

c.
provide for connections between footpaths, public spaces and private entries where level differences are proposed;

d.
provide for the queuing of patrons at entertainment venues;

e.
consider waiting areas at bus stops, taxi ranks and display windows;

f.
where a residential use and outside the core of a centre, takes on a more residential interface with the street;

g.
where facing lower intensity development or a residential neighbourhood provide for an appropriate interface and transition;

h.
provide for deep-planting areas and landscaping where a built to the front boundary edge is not required.

AO24

Development ensures that the front boundary setback for non-residential and residential development in a zone in the centre zones category or the Mixed use zone are in compliance with:

a.
a neighbourhood plan; or

b.
if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements in Table 9.3.3.3.C.

…

PO26

Development ensures that the side boundary setbacks:

a.
minimise the impact of development on the amenity and privacy of adjoining existing residents;

b.
contribute to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character;

c.
provide for breezes and sunlight where a residential use is included on upper levels above podium levels;

d.
consider future development.

AO26

Development ensures that side boundary setbacks for non-residential and residential development in a centre or mixed use or for a centre activity or mix of uses are in accordance with:

a.
a neighbourhood plan; or

b.
if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements in Table 9.3.3.3.C.

PO27

Development ensures that the separation of buildings within a site and to an adjoining existing or future building which includes a residential dwelling:

a.
is consistent with the form and character intent for the local area;

b.
is located to provide residential amenity including access to natural light, sunlight and breeze;

c.
provides a degree of visual privacy via site planning and design without a reliance on fixed screening;

d.
reasonably addresses and considers the amenity of adjoining residents and future development potential.

AO27.1

Development ensures that the building separation within a site and to adjoining buildings is in compliance with Table 9.3.3.3.E.

Note—This is demonstrated by a site context plan that includes adjoining and adjacent buildings and strategies to address separation issues.

…

PO28

Development is of an intensity that supports both the strategic and local role and function of the centre or mixed use area and the development of a vibrant public realm considering the capacity of infrastructure.

AO28

Development has a gross floor area or plot ratio which:

a.
complies with a neighbourhood plan; or

b.
if no neighbourhood plan applies or a neighbourhood plan does not specify a gross floor area or plot ratio, is provided for in a building contained within the building envelope that does not exceed the maximum building footprint for the site.

PO29

Development has a building footprint or site cover which:

a.
is of an appropriate form and intensity for the activity centre or mixed use location;

b.
balances built form with open space, parking and landscaping at ground level;

c.
limits areas of external surface car parking;

d.
provides for landscaping and deep planting areas.

AO29

Development provides a maximum building footprint or site cover which:

a.
complies with the requirements in a neighbourhood plan;

b.
if no neighbourhood plan applies or no requirements are specified in a neighbourhood plan, the maximum building footprint or site cover is 90%.

Note—The building footprint or site cover includes at-grade car parking areas that are covered with shelter. Enclosed car parking areas are included if they protrude more than 1m above ground level.

…

PO56

Development incorporates deep planting which:

a.
supports the retention and protection of existing significant vegetation and large subtropical shade trees;

b.
provides for the establishment of vegetation to contribute to the landscape character of the centre or mixed use area;

c.
is grouped with deep-planting areas on adjacent sites to maximise contiguous areas of deep planting;

d.
is open to the sky with access to light and rainfall and into the natural ground with no underground development;

e.
is planted with large subtropical tree species that at maturity are complementary in scale and height to the building form;

f.
is capable and supported to grow and at maturity provide effective shade or screening to buildings, outdoor spaces or adjoining uses;

g.
balances hard-stand areas and provides shade and informal recreation spaces that are directly accessible from residences, building tenancies or the street frontage.

AO56.1

Development locates deep-planting areas:

a.
to retain and protect existing significant vegetation and large subtropical shade trees;

b.
to buffer adjacent residential areas;

c.
to support building height transitions, where required;

d.
to provide an entry statement;

e.
to shade publicly accessible areas, private outdoor and communal open space.

AO56.2

Development:

a.
provides for a minimum 10% of the site area for deep planting;

b.
ensures that each deep-planting area has a minimum area of 25m² and a minimum dimension of 4m in any direction.

AO56.3

Development provides deep-planting areas that are:

a.
exclusively for landscaping;

b.
not containing vehicle manoeuvring areas, pedestrian paths, surface structures or infrastructure, sub-surface structures or infrastructure;

c.
able to accommodate trees planted in natural ground with no development underneath;

d.
100% open to the sky;

e.
able to be accessed for maintenance purposes.

AO56.4

Development provides trees in deep-planting areas which:

a.
are capable of growing to a minimum canopy diameter of 5m and/or a minimum height of 5m within 5 years of planting;

b.
are subtropical tree species consistent with the Planting species planning scheme policy.

Note—Tree species should be chosen to respond to particular site location or

design needs. Where site circumstances permit, tree species that are

complementary in scale and height to the building form should be selected.

Note—Tree height and canopy spread will be dependent on species.

AO56.5

Development provides a minimum of 25% of all trees as advanced stock.

Footnotes

[1] Ex. 3, Visual Amenity Joint Experts’ Report (VA JER), [9], Fig 1, p 4.

[2] Ex. 8, Joint Expert Report of Town Planners (TP JER), [53]–[56], p 20.

[3] Ex. 17, First Statement of Mr Greenwell, [15], pp 3–4.

[4] Ex. 17, First Statement of Mr Greenwell, [16]–[17], pp 4–5.

[5] Ex. 17, First Statement of Mr Greenwell, [19]– [20], p 7.

[6] Ex. 12, CEO Certificate, [10(c)], p 2.

[7] Ex. 12, CEO Certificate, [11], p 2.

[8] Ex. 8, TP JER, [22], p 8.

[9] Ex. 12, CEO Certificate, City Plan Extracts, s 1.5, p 64.

[10] Ex. 12, CEO Certificate, City Plan Extracts, s 5.3.3(4)(c), p 130; Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13, [70].

[11] Ex. 12A, Table 5.5.10 – Neighbourhood centre zone, p 2.

[12] Ex. 12, CEO Certificate, City Plan Extracts, Table 5.9.82.A – Coorparoo and districts neighbourhood plan: material change of use, p 150.

[13] Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, [38] (Mullins P); Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147, [52].

[14] (1998) 194 CLR 355, 381, 382, 384.

[15] [2024] HCA 10, [21].

[16] [2024] QCA 39, [38].

[17] Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147.

[18] Ibid, [55]–[58].

[19] Ex. 3, VA JER, [82], p 25.

[20] Ex. 3, VA JER, [77], p 25.

[21] Ex. 3, VA JER, [172], p 47.

[22] Ex. 3, VA JER, [86]–[87], p 26.

[23] T3–14.

[24] Ex. 3, VA JER, Figs DB4–DB7, pp 29–30.

[25] Ex. 3, VA JER, [89], [91], p 28.

[26] Ex. 4, Separate Report of Mr Powell, Figs 10–11, p 17.

[27] Ex. 3, VA JER, [24(d)], p 9.

[28] Ex. 12, CEO Certificate, City Plan Extracts, Coorparoo and districts neighbourhood plan code, OO3(b), p 181.

[29] Ex. 12, CEO Certificate, City Plan Extracts, Coorparoo and districts neighbourhood plan code, OO5(a), p 181.

[30] Ex. 12, CEO Certificate, City Plan Extracts, Coorparoo and districts neighbourhood plan code, OO3(i), p 181.

[31] Ex. 12, CEO Certificate, City Plan Extracts, Neighbourhood centre zone code, OO4(a), p 172.

[32] Ex. 12, CEO Certificate, City Plan Extracts, Neighbourhood centre zone code, OO4(b), p 172.

[33] Ex. 12, CEO Certificate, City Plan Extracts, Neighbourhood centre zone code, OO5(a), p 173.

[34] Ex. 8, VA JER, [190], p 57.

[35] T2–79, ll 39–40.

[36] Ex. 12, CEO Certificate, City Plan Extracts, Table SC1.1.2.B – Defined activity groups, p 390.

[37] Ex. 12, CEO Certificate, City Plan Extracts, SC1.1.1(5)–(8), p 358.

[38] Ex. 3, VA JER, [14(a)], p 5.

[39] Planning and Environment Court Act 2016 (Qld), s 43 (PECA).

[40] Ibid, s 46(2).

[41] Ibid, s 47(1).

[42] Ibid, s 45(1).

[43] Ex. 12, CEO Certificate, [4], p 1.

[44] Planning Act 2016 (Qld), s 45(7) (Planning Act).

[45] Planning Regulation 2017 (Qld), s 31(1).

[46] Planning Act, s 45(5).

[47] [2020] QCA 253.

[48] [2020] QCA 257.

[49] [2020] QCA 273.

[50] [2021] QCA 95.

[51] [2019] QPEC 16, [35]–[86].

[52] [2019] QPEC 46, [12]–[22].

[53] Ex. 24, CEO Certificate.

[54] Confirmed by Ex. 40.

[55] Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6, [46].

[56] Court Document No. 15, Second Further and Better Particulars of the Notice of Appeal dated 25 January 2024.

[57] The relevant provisions of the City Plan are contained in Annexure A to these reasons.

[58] Ex. 12, CEO Certificate, City Plan Extracts, s 3.1(1), p 77.

[59] Ex. 12, CEO Certificate, City Plan Extracts, pp 84, 89.

[60] Ex. 12, CEO Certificate, City Plan Extracts, s 3.3.1(1)(o), p 84.

[61] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 1, Element 1.1, SO2, p 84.

[62] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 1, Element 1.1, L2.1, p 84.

[63] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 1, Element 1.3, L9, p 89.

[64] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 1, Element 1.3, SO4, L4, p 89.

[65] Ex. 12, CEO Certificate, City Plan Extracts, Table SC1.1.2.B – Defined activity groups, Community facilities, p 392.

[66] Ex. 12, CEO Certificate, City Plan Extracts, s 3.7.1(1)(g)(ii), (iv), p 95.

[67] As is confirmed by the Emerging community zone code, s. 6.2.6.2(2)(f)(iii)(A).

[68] Ex. 12, CEO Certificate, City Plan Extracts, s. 6.2.2.4(3), p 172.

[69] Ex. 12, CEO Certificate, City Plan Extracts, s. 6.2.2.4(4)(a), p 172.

[70] Ex. 12, CEO Certificate, City Plan Extracts, s. 6.2.2.4(4)(c), p 172.

[71] Ex. 12, CEO Certificate, City Plan Extracts, s. 6.2.2.4(4)(f), p 172.

[72] Ex. 12, CEO Certificate, City Plan Extracts, s. 7.2.3.10.2(3)(i), p 181.

[73] Ex. 12, CEO Certificate, City Plan Extracts, PO18(c)(i), p 248.

[74] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 1, Element 1.3, SO4, p 89.

[75] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 1, Element 1.3, L4, p 89.

[76] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 5, Element 5.5, SO6, p 110.

[77] Ex. 12, CEO Certificate, City Plan Extracts, Strategic framework, Theme 5, Element 5.5, L6.1, p 110.

[78] Ex. 12, CEO Certificate, City Plan Extracts, Neighbourhood centre zone code, Purpose 1(a)–(b), p 172.

[79] Ex. 12, CEO Certificate, City Plan Extracts, Neighbourhood centre zone code, OO4(a), p 172.

[80] Ex. 12, CEO Certificate, City Plan Extracts, Neighbourhood centre zone code, OO4(f), p 172.

[81] Ex. 8, TP JER, [65], p 22.

[82] See [151] of these reasons.

[83] See [151] of these reasons.

[84] Macquarie Dictionary, 8^th Edition.

[85] [2017] QSC 243.

[86] [2020] QPEC 31.

[87] [2024] QPEC 44.

[88] T5–18, ll 33–37.

[89] T7–45, ll 1–2.

[90] Ex. 12, CEO Certificate, City Plan Extracts, SO1, L1, p 88.

[91] Ex. 12, CEO Certificate, City Plan Extracts, SO4, L4, p 89.

[92] Ex. 12, CEO Certificate, City Plan Extracts, s 3.7.1(1)(g)(ii), (vi), p 95.

[93] Ex. 12, CEO Certificate, City Plan Extracts, s 3.7.6, L1, p 108.

[94] While the Consolidated List of Issues refers to Purpose (3), I have taken this to be a reference to Overall outcome 3.

[95] The relevant provisions of the City Plan are contained in Annexure A to these reasons.

[96] Ex 12, CEO Certificate, City Plan Extracts, AO29(b), p 254, AO22, p 250, Table 9.3.3.3.B, pp 275–276.

[97] Ex. 26, AO Building Envelope Utilisation.

[98] Court Document No. 56, Co-respondent’s Written Submissions dated 25 September 2024, Annexure A, Item 25.

[99] Ex. 9, Separate Report of Mr Perkins, Attachment A, p 16.

[100] T3–34, l 23 – T3–35, l 36.

[101] Ex. 9, Separate Report of Mr Perkins, Attachment A, p 16; See also Ex. 26.

[102] Ex. 3, VA JER, [45], p 18.

[103] Ex. 3, VA JER, Fig NP14, p 19.

[104] Ex. 2, Book of Plans, pp 20–24.

[105] Ex. 3, VA JER, [199(c)], p 58.

[106] Ex. 3, VA JER, [53], p 20.

[107] [2003] QPEC 2, [20]–[26].

[108] Ibid, [21].

[109] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [51].

[110] [2003] QPEC 5.

[111] Ibid, [35].

[112] [2022] QCA 168, [30].

[113] Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7, [30].

[114] Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22, [182].

[115] Ex. 5, Joint Economic Need Report (Need JER), [124], p 43, [159], p 59.

[116] Ex. 5, Need JER, [124], p 43, [159], p 59.

[117] Ex. 5, Need JER, [117], p 37.

[118] Ex. 5, Need JER, [117], p 37.

[119] Ex. 25, Separate Report of Mr Brown, [26], p 5.

[120] Ex. 5, Need JER, [225], p 102.

[121] Ex. 7, Hospital/Medical Demand Report, [60], p 18.

[122] Ex. 5, Need JER, [246], p 104.

Editorial Notes

Published Case Name:
Ramsay Health Care Australia Pty Limited v Brisbane City Council & Anor
Shortened Case Name:
Ramsay Health Care Australia Pty Limited v Brisbane City Council
MNC:
[2024] QPEC 49
Court:
QPEC
Judge(s):
McDonnell DCJ
Date:
21 Nov 2024

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2024] QPEC 49	21 Nov 2024	-
Notice of Appeal Filed	File Number: CA 484/25	03 Feb 2025	-

Appeal Status

Appeal Pending

Cases Cited List of Cases Cited by this judgment

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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
Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council	[2017] QPEC 22	2 citations Jump To Cite 1 - [2017] QPEC 22 Cite 2 - [2017] QPEC 22
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
Brown v Idofill Pty Ltd	(1987) 64 LGRA 218	1 citation Jump To Cite 1 - (1987) 64 LGRA 218
Clarry v Brisbane City Council	[2024] QCA 39	3 citations Jump To Cite 1 - [2024] QCA 39 Cite 2 - [2024] QCA 39 Cite 3 - [2024] QCA 39
Development Watch Inc v Sunshine Coast Regional Council	[2022] QCA 6	2 citations Jump To Cite 1 - [2022] QCA 6 Cite 2 - [2022] QCA 6
Dreamline Development Corporation Pty Ltd v Brisbane City Council	[2021] QPEC 13	2 citations Jump To Cite 1 - [2021] QPEC 13 Cite 2 - [2021] QPEC 13
Inkerman Station Pty Ltd v Allan (No 2)	[2017] QSC 243	2 citations Jump To Cite 1 - [2017] QSC 243 Cite 2 - [2017] QSC 243
Isgro v Gold Coast City Council	[2003] QPEC 2	2 citations Jump To Cite 1 - [2003] QPEC 2 Cite 2 - [2003] QPEC 2
Luke v Maroochy Shire Council	[2003] QPEC 5	2 citations Jump To Cite 1 - [2003] QPEC 5 Cite 2 - [2003] QPEC 5
Murphy v Moreton Bay Regional Council	[2019] QPEC 46	2 citations Jump To Cite 1 - [2019] QPEC 46 Cite 2 - [2019] QPEC 46
Pacific Seven Pty Ltd v City of Sandringham	View on:VR(1982) V. R. 157	1 citation Jump To Cite 1 - (1982) V. R. 157
Parmac Investments Pty Ltd v Brisbane City Council	[2008] QPEC 7	2 citations Jump To Cite 1 - [2008] QPEC 7 Cite 2 - [2008] QPEC 7
Project Blue Sky v Australian Broadcasting Authority	View on:JADE(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
Shun Pty Ltd v Logan City Council	[2020] QPEC 31	2 citations Jump To Cite 1 - [2020] QPEC 31 Cite 2 - [2020] QPEC 31
Stockwell Development Group Pty Ltd v Bundaberg Regional Council	[2024] QPEC 44	2 citations Jump To Cite 1 - [2024] QPEC 44 Cite 2 - [2024] QPEC 44
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Trinity Park Investments Pty Ltd v Cairns Regional Council	[2021] QCA 95	2 citations Jump To Cite 1 - [2021] QCA 95 Cite 2 - [2021] QCA 95
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Yorkeys Knob BP Pty Ltd v Cairns Regional Council	[2022] QCA 168	2 citations Jump To Cite 1 - [2022] QCA 168 Cite 2 - [2022] QCA 168
Zappala Family Co Pty Ltd v Brisbane City Council	[2014] QCA 147	3 citations Jump To Cite 1 - [2014] QCA 147 Cite 2 - [2014] QCA 147 Cite 3 - [2014] QCA 147
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd	[1992] 1 Qd R 352; [1991] QSCFC 123	1 citation Jump To Cite 1 - [1992] 1 Qd R 352

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Charters Towers Operations Pty Ltd v Charters Towers Regional Council	[2025] QPEC 12	2 citations

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