The case of Jakel Pty Ltd & Ors v Brisbane City Council & Anor  QPEC 21 concerned an appeal to the Planning and Environment Court by Jakel Pty Ltd, Nickall Pty Ltd and Agia Pty Ltd against the refusal by the Brisbane City Council of a development application in respect of land located at 28-30 Attewell Street, Nundah for the following:
- partial demolition and relocation of an existing pre-1947 dwelling house forward on the subject site;
- reconfiguration of the boundary of the existing two lots to create a front lot containing the dwelling house and a rear battle-axe lot; and
- a three storey building containing six units on the rear lot.
The Council alleged conflict with a number of provisions of the City Plan 2014 (City Plan), particularly that the proposed development conflicted with provisions in respect of proximity to public transport and inadequate landscaping, character and amenity.
The Court dismissed the appeal on the basis that the proposed development conflicted with the City Plan, and that an appropriate balance between infill development opportunity and other planning considerations, such as the existing and planned character and amenity of the relevant street, could not be achieved.
Appropriate decision framework
The development application was lodged and assessed by the Council under the Sustainable Planning Act 2009 (SPA). Whilst the parties agreed that the SPA continued to apply to the Council's assessment and decision of the proposed development, the parties were in dispute about the decision framework that applied to the appeal.
The Appellants submitted that the Court is to assess and decide the appeal pursuant to section 45 of the Planning Act 2016 (Planning Act). However, the Council submitted that the Court was required to assess and decide the appeal under the regime in the SPA.
The Court examined the transitional provisions in the Planning Act in relation to proceedings such as this, which had not commenced when the Planning Act came into force.
The Court found that the decision framework in the Planning Act is to apply to an appeal commenced after 3 July 2017.
Relevantly, the Court held that there is an express distinction in section 311 of the Planning Act between an appeal that was started under the SPA, to which the Planning Act states the SPA will continue to apply, and an appeal started under the Planning Act, to which the Planning Act states that the proceeding is to be brought under the Planning Act.
The Court was satisfied that the broader legislative intent supports the Court's interpretation relevantly for the following reasons:
- there is an express distinction between a right of appeal started under SPA and that which is started under the Planning Act in section 76 of the Planning and Environment Court Act 2016 (PEC Act);
- section 312 of the Planning Act provides that the right to appeal under the SPA applies only for matters listed in that section which supports the intent that where the Planning Act provides a right of appeal, the appeal is to be commenced, heard and determined under the Planning Act; and
- the appeal is by way of hearing anew, in accordance with section 43 of the PEC Act and a different decision framework is therefore acceptable, given that the decision is by way of a hearing anew.
The Court concluded that the combined effect of section 46(2) of the PEC Act and sections 45(6) and (7) of the Planning Act is to require the Court to assess the development against the statutory instruments that applied at the time the development application was properly made. It went on to hold that planning schemes are statutory instruments under section 7 of the Statutory Instruments Act 1992.
Consequently, the Court held that the combined effect of section 311(4) of the Planning Act and section 76(3) and section 43 of the PEC Act required the Court to assess the proposed development within the framework of the Planning Act regime. However, the assessment is against the planning scheme as it applied at the time the development application was properly made, with weight to be given to the amendments to the planning scheme to the extent the Court considers appropriate.
Court found that the proposed development did not conflict with the Low-Medium Density Residential Zone Code or the Nundah District Neighbourhood Plan Area in the City Plan
The Council alleged conflict with the City Plan, particularly Overall Outcome 7(b)(i) in the Low-Medium Density Residential Zone Code, and Overall Outcome 3(a) in the Nundah District Neighbourhood Plan Area, which relevantly limits development to the following:
- "predominantly 2 storeys, or of up to 3 storeys in height where located within easy walking distance of a public transport node";
- "the district has a mix of low density and low–medium density housing as its dominant land use. Medium density housing is concentrated in close proximity to major transport nodes…".
The Appellants submitted that Overall Outcome (7)(b)(i) was not a prescriptive limit on built form to two storeys, and that alternatively the proposed development was "within easy walking distance" of several public transport nodes.
Although the Court held that the proposed development was not within "easy walking distance" of a public transport node, it held that the reasoning in Lake Maroona Pty Ltd v Gladstone Regional Council  QPEC 25 was apposite and that Overall Outcome (7)(b)(i) demonstrated a clear preference for two storey development to predominate, but did not exclude three storey development where it is located outside the easy walking distance to a public transport node.
Therefore, despite the proposed development being three storeys high and outside "easy walking distance" of a public transport node, the Court held that the proposed development was not in conflict with Outcome (7)(b)(i) as the form of the relevant street will still be predominantly two storeys.
With respect to Overall Outcome (3)(a) in the Nundah District Neighbourhood Plan Area, the Court held that the Overall Outcome states that the medium density uses are to be "dominant" and "concentrated", but does not state that the uses are the only acceptable land use. Therefore, the Court held that approving the proposed development would not result in a conflict.
Court found that the proposed development would represent an overdevelopment of the site and an unacceptable amenity outcome
The Council also alleged that the proposed development would have an unacceptable built form, particularly with respect to "building height, bulk, scale, transition, setbacks and separation", and would have an unacceptable character and amenity outcome in relation to the relevant streetscape (see ).
The Appellants submitted that the proposed development complemented the streetscape by retaining the pre-1947 dwelling in the front lot, that the built form is appropriate in relation to the subject street, and that the multiple dwelling nature of the development application excused the limited separation and transition between the pre-1947 dwelling and the three storey dwelling.
The Court, however, held as follows:
due to the reconfiguration of lot boundaries the building setback and separation are to be assessed individually, which resulted in a significant conflict with the City Plan;
the three storey building would be visible behind the pre-1947 dwelling resulting in lower street amenity; and
the proportion of the built form to open space was not appropriate in the relevant street.
Overall, the Court held that the proposed development represented "an overdevelopment of the site in its locational context and an unacceptable outcome in terms of visual impact on the streetscape and amenity of the residents of the proposed development and adjoining land" (see ).
Court found that the proposed development did not achieve an appropriate balance
The Appellants submitted that the Court should consider the following relevant matters:
the proposed development would deliver infill development opportunities;
the proposed development would help to achieve a balanced mix of housing densities and types;
the proposed development would be located close to a major centre and regular bus services; and
the proposed development would assist in achieving sustainability principles around walkable catchments to major centres and public transport.
The Court rejected all of these matters and found that they did not balance out the proposed development's conflict with the City Plan, particularly in respect of the existing and planned character and amenity of the relevant street.
The appeal was therefore dismissed.
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