In Brief

The case of Fortress Freeholds Pty Ltd v Brisbane City Council & Ors [2016] QPEC 63 concerned an appeal in the Planning and Environment Court commenced by Fortress Freeholds Pty Ltd against the decision of the Brisbane City Council to refuse a development application for a development permit for a material change of use for a warehouse (self-storage facility) and a reconfiguring of a lot.

The site the subject of the appeal was located on Gympie Road, Carseldine, and was improved by the Carseldine Palms Motel, which had existed since 1996 but was no longer operational. The site was surrounded by predominantly residential lots to the east and west, Carseldine police station to the south and a proposed Energex substation to the north. The Council opposed the material change of use but not the reconfiguring a lot aspect of the development application.

The Court found that the proposed development was in "serious and major" conflict with the planning scheme and that there were no grounds established to justify approval of the development despite the conflict.

Court found that the proposed use was in conflict with the relevant provisions of the Brisbane City Plan 2014

The alleged conflicts with the Brisbane City Plan 2014 arose from the proposed use of the site for a warehouse in circumstances where the site was included in the suburban living area  under the Strategic Framework and the low density residential zone.

Fortress Freeholds conceded that the proposed development was in conflict with a number of provisions of the planning scheme since it would cater for more than a local need but denied conflict with any other provisions.
With regards to the Strategic Framework, the Court agreed with the Council's submissions and found that whilst the proposed use was not expressly discouraged and some non-residential uses were contemplated in the area, such uses did not include warehousing. On the other hand, the Court recognised that the proposed storage and warehousing use was expressly contemplated within industrial areas.

With regards to the low density residential zone code, Fortress Freeholds contended that this code also did not discourage the proposed use and that the proposed development was appropriate on the site having regard to the surrounding locality.

The town planning expert for Fortress Freeholds observed that the existing use of the land for a motel and the surrounding non-residential uses consisting of a police station and a proposed Energex substation, meant that the area did not have a character that is "predominantly dwelling houses supported by community uses and small-scale services and facilities which cater for local residents" (at [37]).

The Court found, however, that the purpose of the low density residential zone code was clear and that the proposed development could not be said to be "harmonious" with the planning scheme in circumstances where the types of non-residential uses contemplated, being community uses and small-scale services and facilities that cater for local residents, were expressly articulated.

Court found that the built form of the proposed development was in conflict with the relevant provisions of the Brisbane City Plan 2014

In respect of the built form, the Council contended that the proposed development was in conflict with the provisions of the low density residential zone code and the Bracken Ridge and district neighbourhood plan code.

The applicable codes relevantly required development to be "of a form and scale that reinforces a distinctive subtropical character of low rise, low density buildings set in green landscaped areas" and "of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the … site and is only developed at a greater height, scale and form where there is both a community need and economic need for the development". The applicable codes also required development for non-residential uses to be "small-scale" and to "cater for local residents".

In respect of the scale of the built form, the Court described the proposed development as "substantial and significant" and considered that it would be "out of place in a low density residential zoned area". The Court also considered that the proposed development was of a greater scale than what could be considered consistent with the amenity and character of the site, community expectations and also the infrastructure assumptions intended for the site and that Fortress Freeholds had not established a need for the proposed development in this location.

Court found no sufficient grounds existed to justify approval despite the conflict

The town planning expert for Fortress Freeholds conceded that the only ground sufficient to overcome the conflict was the potential need for the proposed development, such that if it was found that there was no demonstrated need for the proposed development, there were not sufficient grounds to approve despite the conflict.

The Court considered evidence from the need experts for both parties in relation to the self-storage industry. In considering the evidence, the Court found the evidence of the need expert for Fortress Freeholds unsatisfactory and unpersuasive and preferred the evidence of the need expert for the Council.
The experts identified a self-storage facility customer catchment area defined by reference to a 7km radius of the land (being equivalent to a 20 minute travel time) for the purposes of carrying out a supply and demand analysis.

The analysis identified an estimated demand of 5,225 units based on the 2016 population figure and a demand rate per capita. The analysis also identified 16 competing self-storage facilities within the catchment area providing a total supply of 7,545 storage units. This number was reduced significantly after taking into account discounts for the average occupancy level of 84.1% and the amount of that supply that would be used by people from within the catchment area. This number was then increased when accounting for people within the catchment area using storage facilities outside of the catchment area before arriving at a total existing supply of 5,145 storage units.

The analysis showed that in the "most likely case", there would be an estimated shortfall of 101 units which the Court found was not evidence of a demonstrable need.

The Court also accepted that any need for such a facility could be accommodated on appropriately zoned land within the catchment area.

The Court ultimately found that there was not a community or economic need for the facility in the proposed location to justify its approval despite the conflict. It consequently dismissed the appeal in so far as it related to the material change of use aspect of the proposed development.

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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