In brief

The case of Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2017] QPEC 13 concerned an Applicant appeal against the decision of the Council to refuse an application for a development permit for a material change of use for a warehouse with an ancillary office and preliminary approval for building work on land at 101 Medway Street, Rocklea in Brisbane.

The development application sought to retrospectively approve the unlawful use of the land, for which the Applicant had been issued with a show cause notice by the Council on 24 January 2014. 

The disputed issues in the appeal were the following:
  • whether the proposed development was in conflict with the Council's planning scheme and in particular the strategic framework and the low density residential zone code;
  • whether the proposed development would result in any unacceptable amenity impacts; 
  • whether there were sufficient grounds to justify approval of the proposed development despite any conflict with the Council's planning scheme.
The Court found in favour of the Council and dismissed the appeal, finding that the proposed development roused significant land-use conflicts, amenity impacts and constituted a major conflict with the Council's planning scheme.

Land-use designation 

The Applicant contended that the land "appears to be within, but at the edge of a Major Industry Area" under the strategic framework mapping of the Brisbane City Plan 2014, which provided that the relevant land-use strategy of the Major Industry Area was to ensure that "development for industrial uses is prioritised in the Major Industry Areas … which are zoned to maximise the industrial land use potential of these areas."

The Council argued that other mapping clearly depicted the land within the low-density residential zone.

The Court found (at [11]) that the "[land] was unquestionably within the low density residential zone" and there was therefore "absolutely no support for the proposed development in the low density residential zone code", which "provide[s] for predominantly dwelling houses supported by community uses and small-scale services and facilities which cater for local residents.

The Court, having regard to the Brisbane City Plan 2014 as a whole and recent developments on, and contiguous to, the land concluded that the proposed development "significantly conflicts with the obvious residential intent for the land" (Ibid).

Amenity impacts 

The Court, having determined that the land was included within the low-density residential zone, considered whether the proposed development would result in any unacceptable amenity impacts should it be approved.

The Applicant asserted that the following conditions could be imposed upon the proposed development to limit amenity impacts on adjoining residential land:
  • acoustic barriers along the western and northern boundaries measuring 3.5 and 4.8 metres in height, respectively;
  • limiting the number of heavy vehicle movements to two per week; 
  • severe restrictions on the hours of operation of the proposed development and the manner in which it may be carried out; and 
  • buffering and other attenuation works. 
The Court, in considering the efficacy of these conditions in sufficiently mitigating the potential impacts of the proposed development, referenced the following cases:
  • Elan Capital Corporation Pty Ltd and Anor v Brisbane City Council [1990] QPLR 209, in which the Planning and Environment Court relevantly stated:
"It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane. It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper [manner] has chosen to adopt."
  • Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, in which the Supreme Court relevantly stated:
"There is no doubt that the concept of amenity is wide and flexible. In my view, it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality."

The Court affirmed (at [15]) that what these authorities indicated was that it was not the place of the Court to move the boundaries of zones which delineated separate uses unless "there are very good reasons for doing so and, further, that in determining what amenity consequences may follow, it is necessary not to construe potential amenity impacts too narrowly".

In applying this reasoning to the present case, the Court held (at [12]) that "there [was] no basis for asserting that it is appropriate to move the residential/industry interface to within the residential precinct with the result being that the industrial activities the subject of the proposed development would occur immediately adjacent to residential uses". The Court also held that the boundary of the industrial zone was clear and well defined and that the encroachment of the proposed development into the distinct residential precinct would bring about unacceptable amenity impacts. 

Moreover, the Court found (at [16]) that the conditions were "patently unenforceable in circumstances where an approval runs with the land and is binding on successors in title" and that "restricting a use of this type in this manner [was] unrealistic.

Sufficient grounds to justify approval despite the conflict 

The Court then considered whether or not there were sufficient grounds to justify approving the proposed development despite the identified conflicts and applied the established 'three-stage test' established in Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302:

" 1. examine the nature and extent of the conflict;
  2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; and 
  3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
"

The Court found that the nature and extent of the conflict between the proposed development and the relevant planning provisions of the Council's planning scheme were major. The Court was therefore satisfied that there were insufficient grounds to justify approving the proposed development notwithstanding the conflict and dismissed the appeal. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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