Insights

In brief

The case of Ko v Brisbane City Council & Anor [2018] QPEC 35 concerned an appeal to the Planning and Environment Court regarding the Brisbane City Council's (Council) decision to refuse a development application for a material change of use for a multiple dwelling in respect of land situated at 29 Fairy Street, Moorooka (Subject Land). 

The development application was refused on 24 February 2017 and the appeal to the Court was commenced under the Sustainable Planning Act 2009 (SPA).

The proposed plans were amended during the course of the appeal. The amended plans were received favourably by the Council, however, the co-respondent by election, who was a submitter, maintained that the development application should be refused.

The submitter contended that the proposed development conflicted with the following provisions of the Brisbane City Plan 2014 (City Plan):

  • overall outcome 7(a) of the Low-Medium Density Residential Zone Code (LMR zone code);
  • overall outcome 5(a) of the LMR zone code;
  • overall outcome 5(b) of the LMR zone code;
  • performance outcomes 5 and 6 of the Multiple Dwelling Code; and
  • overall outcomes 9.3.14.2(e)(i), (h)(v) and (l)(iii) of the Multiple Dwelling Code.

The Court found that the proposed development did not conflict with the City Plan and allowed the appeal.

No conflict with overall outcome 7(a) of the LMR zone code

Overall outcome 7(a) of the LMR zone code states as follows: 

"(a) Development comprises a mix of low-medium rise, low-medium density residential buildings;

(i) of no more than 2 storeys, or no more than 3 storeys in height where located within easy walking distance of a public transport node; 

(ii) located on suitable sites, inaccessible locations, near to public transport and larger centres or key destinations". 

The submitter argued that the proposed development would conflict with overall outcome 7(a) because the proposed development would not be "… within easy walking distance of a public transport node" (see [32]). 

The Court noted that it has held in previous decisions, namely Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21, [123] that "easy walking distance" is a walk that presents few difficulties for the hypothetical pedestrian and the distance can easily be reached by walking.

The Court held that the proposed development did not conflict with the overall outcome 7(a) because the walk to the Moorooka train station, being the closest transport node, takes only eight minutes and is a flat walk on a footpath. The Court did not accept the submitter's argument that the lack of shade and the difficulty and time required to cross Ipswich Road would detract from the overall convenience and walkability of the route. 

No conflict with overall outcome 5(a) LMR zone code

Overall outcome (5)(a) of the LMR zone code states as follows:

"Development for a residential building is of a height bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Low-medium density residential zone and the relevant zone precinct". 

The submitter argued that the proposed development conflicted with overall outcome 5(a) because the height of the proposed development was not tailored to its specific location and precinct, on the basis that it was not within easy walking distance of a public transport node. Additionally, the submitter contended that the proposed development was inconsistent with the existing character of the street. 

The Court held that this submission relied upon the Appellant failing to comply with overall outcome 7(a) of the LMR zone code. 

The Court found that given that overall outcome (7)(a) had been satisfied and that the proposed development was consistent with the height envisaged in the 2 to 3 storey mix zone precinct, the proposed development did not conflict with overall outcome 5(a). 

No conflict with overall outcome 5(b) of the LMR zone code

Overall outcome 5(b) of the LMR zone code states as follows:

"(b) Development provides for a building to have a building height and bulk that responds to:

(i) the nature of the adjoining dwellings;

(ii) site characteristics, including the shape, frontage, size, orientation, slope, and nature of the adjoining dwellings". 

The submitter argued that the proposed development would conflict with overall outcome 5(b) because it did not properly respond to the nature of the adjoining dwellings, particularly the adjoining dwelling to the south.

The Council's expert stated in the relevant joint report that the proposed development was designed to respond to adjoining development as:

  • it is consistent with the general residential height limit for 2 and 3 storey developments;
  • there is a large separation distance to the single dwelling to the west;
  • the driveway design provided increased building separation and height transition;
  • the plans for the dwellings promote privacy;
  • the proposed development transitions away from the street frontage from 2 to 3 storeys;
  • the third level of the 3 storey development achieves a 3 metre setback to the southern common boundary with the 2 storey multiple dwelling; and
  • the use of deep planting provides suitable landscape screening to the building form.

The Court found that the height, bulk, and scale of the proposed development responded favourably to the nature of the adjoining dwellings, and that there was no conflict with overall outcome 5(b).

No conflict with the Multiple Dwelling Code

The submitter also argued that the proposed application would conflict with performance outcomes 5 (PO5) and 6 (PO6) of the Multiple Dwelling Code. To demonstrate the conflict, the submitter argued that the evidence provided by the Council's experts presumed that the proposed application was within easy walking distance to the Moorooka train station.

The Court rejected the argument on the basis that the submitter failed to address the specific terms of PO5 and PO6 of the Multiple Dwelling Code and rather proceeded on an argument which concerned overall outcome 7(a) of the LMR zone code. The Court held that the proposed development would not conflict with PO5 and PO6. 

The submitter also argued that the proposed development would conflict with overall outcomes 9.3.14.2(e)(i), (h)(v), and (l)(iii) of the Multiple Dwelling Code on the same grounds as those relied upon in respect of PO5 and PO6 of the LMR zone code. 

The Court found it unnecessary to dwell upon this argument given that it relied on the same submissions concerning PO5 and PO6, which had failed. 

Court found sufficient grounds to support the application

The Court considered whether there were sufficient grounds to approve the development application for the proposed development.

The Court, however, noted that there was a change to overall outcome 7(a) of the LMR zone code. In December 2017, overall outcome 7(a) was amended and renumbered as overall outcome 7(b). 

The Court found that the amendments made to the previous 7(a) of the LMR zone code removed the "rigidity of the planning intent" (see [78]). The Court held that the replacement of the terms "no more than 2 or 3 storeys" to "predominantly 2 storeys, or up to 3" promoted flexibility.

The Court found that Fairy Street has a predominance of development that is 1 to 2 storeys in height. The Court provided that a decision to approve the application would not conflict with the amended overall outcome that is renumbered as 7(b), as the predominant height of buildings in Fairy Street would remain unchanged. The Court additionally held that the proposed development did not give rise to unacceptable impacts on amenity. 

Court findings

The Court was satisfied that the Appellant had discharged the onus and established that the appeal should be allowed.

Finally, the Court held that if there was a conflict, the conflict would not be characterised as a serious or significant conflict. 

Court findings

The Court was satisfied that the Appellant had discharged the onus and established that the appeal should be allowed.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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