Planning and Environment Court of Queensland focuses on the proposed primary activity to determine the appropriate use category, and declines to make a declaration that a development application for a brewery is impact assessable rather than code assessable

In brief

The case of Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QPEC 30 concerned an originating application to the Planning and Environment Court of Queensland (Court) seeking a declaration that a development application lodged with the Brisbane City Council (Council) by Malt Brewing Company Pty Ltd (Malt Brewing) for a brewery and associated restaurant was impact assessable rather than code assessable.

The Court dismissed the originating application on the basis that the applicant, Cannon Hill Investments Pty Ltd (CHI Pty Ltd), had not demonstrated any error in the categorisation of the proposed use.

Background

Malt Brewing lodged a development application for a development permit for a material change of use for High Impact Industry and a Food and Drink Outlet over land located at 82 Colmslie Road, Morningside (Application). The subject land is in the Industry Zone (General Industry B Precinct) of the Brisbane City Council City Plan 2014 (version 20) (City Plan).

The Application proposed to repurpose a portion of a State Heritage listed building into a brewery with a gross floor area (GFA) of 538m² and a restaurant with a GFA of 250m². 

The Council accepted the Application as properly made and confirmed that public notification was not applicable to the Application. Despite the Application not being publicly notified, CHI Pty Ltd became aware of it and made representations to the Council that the Application ought to be impact assessable. On 18 December 2020, CHI Pty Ltd filed an originating application with the Court seeking a declaration to that effect.

On 23 February 2021, the Council, by its delegate, approved the Application. The development approval contained the following conditions (our underlined emphasis):

• "Maintain the approved development in accordance with the approved DRAWINGS AND DOCUMENTS, and any other relevant Council approval required by the conditions" (Condition 1).

• "Carry out the approved development in accordance with the approved DRAWINGS AND DOCUMENTS" (Condition 3).

• "The approved Food and drink outlet must remain less than 250m² gross floor area (excluding the unroofed outdoor dining areas shown on the APPROVED DRAWINGS AND DOCUMENTS)" (Condition 4).

The approved plans included a floor plan which identified in red the "Area Primarily used for Brewery production purposes" and the "Area Primarily used for Food and Beverage Purposes".

Issue in dispute

The issue for determination by the Court was whether the Application was impact assessable either because the Application was for a Hotel, and not for a Food and Drink Outlet, or because the Food and Drink Outlet was 250m² GFA or more.

Requirements under the City Plan 

In order to be code assessable under the City Plan, a Food and Drink Outlet had to be "less than 250m² gross floor area".

The City Plan adopts the following definition of Food and Drink Outlet under the Planning Regulation 2017 (Qld):

"food and drink outlet means the use of premises for—

(a) preparing and selling food and drink for consumption on or off the premises; or

(b) providing liquor for consumption on the premises, if the use is ancillary to the use in paragraph (a)."

In contrast, Hotel is defined as follows:

"hotel—

(a) means the use of premises for—

(i) selling liquor for consumption on the premises; or

(ii) a dining or entertainment activity, or providing accommodation to tourists or travellers, if the use is ancillary to the use in subparagraph (i); but

(b) does not include a bar."

Use was appropriately categorised as code assessable

The Court accepted evidence given by a director of Malt Brewing that the primary activity in the restaurant would be the selling of food and that the sale of alcohol, including products from the co-located brewery, would be a secondary activity. Given that the primary activity was not the sale of alcohol, the Court accepted that the use was correctly classified as a Food and Drink Outlet.

The Court also found that it was always Malt Brewing's intention to conduct a Food and Drink Outlet use of less than 250m² GFA.

The Court ultimately declined to make the declaration sought given the finding that it was always intended that the Food and Drink Outlet would operate below the code assessable threshold of 250m², the plans submitted with the development application were ambiguous, and the Council conditioned the development approval to ensure that it was not approving a use beyond the code assessable development threshold.