Court allowed appeal against approval of multi-unit dwellings, finding conflicts with the Brisbane City Plan 2000 and insufficient grounds to justify an approval

In brief

The case of Kissane & Ors v Brisbane City Council [2016] QPEC 57 concerned a submitter appeal in the Planning and Environment Court against the decision of the Brisbane City Council to approve a development in Kuraby involving a development application for a development permit for a material change of use and preliminary approvals for building works for 68 multi-unit dwellings, together with a development permit for reconfiguring a lot to create a new road.

Mary Kissane, Arsil Nayyar Hussain and Shamile Hussain are neighbours of the site who commenced the appeal. The issues in dispute were narrowed during the appeal to the remaining issues of density, amenity and character impacts and bushfire risk. 

The Court found that the proposed development was in conflict with the Brisbane City Plan 2000, and that the extent of these conflicts were confirmed by the Brisbane City Plan 2014. In the absence of sufficient grounds to justify approving the proposed development despite the conflicts, the Court allowed the appeal.

Court found obvious and significant conflict with the Brisbane City Plan 2000 with respect to the density, form and scale of the proposed development 

The development application was lodged by Pacific Enterprises Pty Ltd and Noriba Pty Ltd with the Council under the Brisbane City Plan 2000, shortly before the Brisbane City Plan 2014 came into effect. Since the commencement of the appeal, the proposed development had changed and been reduced to 62 multi-unit dwellings of between two and three storeys, to be built over four stages.

Under the Brisbane City Plan 2000, the site was located in the Emerging community area, which was "generally suitable for urban purposes at some future time." Under the Brisbane City Plan 2000, the site was also included within a Potential Development Area in the Kuraby local plan, which relevantly provided that the site was generally intended for low density residential houses with dwelling densities of between 10 and 15 dwellings per hectare. The Kuraby local plan encouraged higher dwelling densities of up to 20 dwellings per hectare between 400 and 800 metres from Kuraby or Fruitgrove railway stations, where dwellings “must be designed to ensure compatibility with the form and scale of detached housing.” Within 400 metres of Kuraby or Fruitgrove railway stations, dwelling densities of up to 25 dwellings per hectare were encouraged. 

Kuraby railway station was the nearest station to the site, which was approximately one kilometre away. Pacific Enterprises and Noriba submitted that a flexible approach must be taken when considering the wording of the Kuraby local plan and that the strategic intent to provide increased housing densities close to public transport must be taken into account. Despite the site being located greater than 800 metres from Kuraby railway station, the Court accepted that it was within walking distance, albeit not comfortable walking distance. 

However, the Court found that the requirement that dwellings greater than 400 metres from Kuraby railway station “must be designed to ensure compatibility with the form and scale of detached housing” was a mandatory requirement under the Kuraby local plan. In considering the evidence from the town planning experts, the Court accepted the evidence of the town planning expert for the submitters that the proposed development was incompatible with detached housing, including the adjoining detached housing, in terms of its height, form and scale. The Court also accepted the submitters' town planning expert's evidence that there was no support for development of the density proposed within the Kuraby local plan area. The Court found that the nature and extent of the conflict with the Brisbane City Plan 2000 was obvious and significant.

Court gave significant weight to the Brisbane City Plan 2014 as it represented a contemporaneous statement of planning intent for the site

Section 495 of the Sustainable Planning Act 2009 relevantly provides that the Court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate. In hearing the appeal, the Court considered the appropriate weight to be given to the Brisbane City Plan 2014. 
As the development application was lodged ten days before the Brisbane City Plan 2014 came into effect, the Court was of the view that the Brisbane City Plan 2014 represented a contemporaneous statement of planning intent for the site, and so should be accorded significant weight. 

Under the Brisbane City Plan 2014, the site is located in the Emerging community zone and the purpose of the code for this zone is to "identify land that is suitable for urban purposes and conserve land that may be suitable for urban development in the future." The site is also subject to the Kuraby neighbourhood plan code, which the Court found was generally in accordance with the provisions in the Kuraby local plan, but relevantly provided the restrictions on dwelling densities within 800 metres of Kuraby railway station in more mandatory terms. With respect to the issues of density, form and scale, the Court was of the view "that the relevant provisions of City Plan 2014 confirm the extent of the conflict of the proposed development with the planning intent for the area."

Court gave significant weight to the Brisbane City Plan 2014 Bushfire overlay code as it represented a comprehensive response to a contemporary risk

The Brisbane City Plan 2000 did not include provisions to manage bushfire risk. At the time the development application was made, State Planning Policy 2013 applied and dealt with the issue of bushfire risk. Under the Brisbane City Plan 2014, the site is identified on the Bushfire overlay code map as being surrounded by predominantly medium hazard areas and some high hazard areas. The Bushfire code provides for a minimum building protection zone of 20 metres of reduced fuel and includes an inner 10 metre zone of very low fuel. 

The parties' three bushfire experts all undertook an assessment of the proposed development against the Bushfire overlay code. They all agreed that the Bushfire overlay code was part of “the most up-to-date instrument available.” The Court took this evidence into account in determining that significant weight should be given to the Bushfire overlay code as “it represents a comprehensive response to a contemporary risk in circumstances where City Plan 2000 did not address the issue.”

Court found part of the proposed development subject to unacceptable bushfire risk

The bushfire expert for Pacific Enterprises and Noriba downgraded the hazard level of the site from medium-high to low-medium based on his detailed site-specific analysis, including taking into account the low combustibility of Black Sheoak, which was found to be present in significant numbers adjoining the site to the south. Accordingly, the developers' bushfire expert was of the opinion that the use of fire retardant fencing and appropriate building design would provide “appropriate levels of safety for people and property” in those parts of the proposed development most at risk from bushfire threats.

The submitters asserted that the site was not suitable for the proposed development because it was subject to unacceptable bushfire risks. Their and the Council's bushfire experts maintained the position that "access and a total separation of at least 20 metres from the hazard to the nearest building are essential to provide a minimum acceptable risk position." The Court preferred this evidence to that of the bushfire expert of the developers and found that the Bushfire hazard overlay in the Brisbane City Plan 2014 was accurate. 

In applying this position, the Court found that some of the buildings in stage one and all of the buildings in stages three and four of the proposed development failed to comply with the minimum 20 metre separation from the bushfire hazard. The Court found that this risk could not be addressed through conditions and that only those parts of the proposed development not subject to unacceptable bushfire risks should be considered appropriate for approval. 

In considering whether there were sufficient grounds to justify approval of the proposed development, the Court found that there was need for the proposed development. However, in light of the significant conflicts with the Brisbane City Plan 2000, the Court found insufficient grounds to justify approving the proposed development despite the conflict.