In brief

The case of Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 concerned an appeal to the Planning and Environment Court against the Brisbane City Council’s (Council) decision to refuse an impact assessable development application for a material change of use to develop a childcare centre.  

The Council refused the development application on the basis that it did not comply with a number of provisions of the Brisbane City Plan 2014 (Planning Scheme), particularly the Low density residential zone code (Zone Code). 

The Appellants appealed the Council’s refusal to the Court and submitted that the development application strongly aligned with the Planning Scheme, and that any non-compliance should not be determinative in the exercise of the Court's discretion.

The Court considered the following in its determination:

  • Was the proposed development well-located?
  • What was the nature of the need to be served by the proposed development?
  • Did the bulk and scale of the proposed development comply with the Planning Scheme?
  • Were there any interface issues? 
  • Did the proposed development conflict with the amenity of the area? 
  • Was there a strong and pressing need for the proposed development?

The Court dismissed the appeal in the exercise of the planning discretion on the basis that the size and scale of the proposal exceeded the identified demand and resulted in unacceptable impacts on amenity and non-compliance with the Planning Scheme.

This case is significant for the Court's consideration of the statutory assessment and decision making framework for impact assessment under the Planning Act 2016 (PA), and how it differs to the previous framework under the Sustainable Planning Act 2009 (SPA).

The Court sets out the assessment and decision making framework for impact assessment under the Planning Act 2016

The Court observed that the agreed list of issues prepared by the parties failed to recognise that the PA prescribes a different assessment and decision framework to that which applied under SPA.

The Court noted that unlike the SPA, which constrained an assessment manager's decision making power by mandating refusal in circumstances where "conflict" is established and there is an absence of "sufficient grounds", section 60(3) of the PA instead confers a power on the decision maker to exercise a broad planning discretion in respect of an impact assessable application.  Accordingly, while the existence of non-compliance with an assessment benchmark is a relevant fact and circumstance in the exercise of that planning discretion, it should not be assumed that the non-compliance automatically warrants refusal.

The Court described the planning discretion as follows (at [60]):

"The planning discretion, and the inherent balancing exercise, is invariably complicated, and multi-faceted.  It is a discretion that is to be exercised based on the assessment carried out under s.45 of the PA.  It will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark."

The Court explained that where a party contends that a non-compliance with an assessment benchmark warrants refusal of an impact assessable application, the party will need to identify at least the following two things in any document purporting to articulate the issues in dispute:

  1. The non-compliance alleged.

  2. The planning basis relied upon to contend the non-compliance warrants refusal in the exercise of the planning discretion under section 60(3) of the PA.

The Court further explained that in identifying the issues to be determined in an appeal, it needs to be borne in mind that the exercise of the planning discretion for impact assessment under section 60(3) of the PA is subject the following three requirements:

  1. The exercise of the planning discretion must be based on the assessment of the development application under section 45 of the PA, which includes that an assessment may be carried out against or having regard to "any other relevant matter".

  2. The exercise of the planning discretion must be performed in a way that advances the purpose of the PA, as required by section 5(1) of the PA.

  3. The exercise of the planning discretion is subject to an implied limitation that it must be exercised for a purpose that is within the contemplation of the PA.

Having set out the decision making and assessment framework for the exercise of the planning discretion, the Court stated simply (at [86]): "The real question to be determined can be stated as: should the discretion conferred under s60(3) of the PA be exercised in favour of approval in the circumstances of this case?"

However, the simplicity of this question belies the complexity and multi-disciplinary nature of planning and the exercise of the planning discretion.

Was the proposed development well-located?

The Court found that the proposed development was on a well-located site for the purposes of the Planning Scheme as the land was highly accessible to the surrounding road network, had a high level of accessibility and provided a physical connector to the surrounding schools and the retail and commercial centre of the suburb. 

The Court was not satisfied with the Council's argument that the proposed development did not comply with PO1 of the Childcare centre code of the Planning Scheme as the Court held that the proposed development was in close proximity to other facilities such as schools and retail and commercial centres. The Court also determined that the proposed development did not conflict with the purpose of the Community facilities code due to these reasons. 

What was the nature of the need to be served by the proposed development?

Under the Zone Code of the Planning Scheme, land may be developed for non-residential purposes. A childcare centre is specifically contemplated to be one such purpose under overall outcome 4(k) of the Zone Code when it serves a local community facility only and the bulk and scale is compatible with and integrates with the built form of the Zone Code. 

The Court considered whether the proposed development would serve a local community facility need only. The Court relied upon the evidence of the expert economists for the parties. The expert economists noted that 2.5% to 5% of the children who would attend the childcare centre would reside outside the locality (otherwise known as ‘rouge trade’). The Court found that the proposed development would not serve a local need only as the proposed development would be the largest competing facility in the catchment area. 

The Court found that if the proposed development was to be approved, it would result in an oversupply of childcare facilities in the locality and would serve more than a local need as it would have to pursue enrolments beyond the locality. 

Did the bulk and scale of the proposed development comply with the City Plan?

The Council argued that the bulk and scale of the proposed development would also unacceptably impact on the character and amenity of the area under overall outcome 4(k) of the Zone Code of the Planning Scheme. The Court noted that this provision required consideration to be given to matters of compatibility and integration with the built form intent of the Zone Code. 

Under overall outcome (4)(c) of the Zone Code of the Planning Scheme, a development which is not a dwelling house should be located on a well-located site with a minimum area of 3,000 square metres in order to ensure there is sufficient private open space. The Court determined that the proposed development would not be compatible with overall outcome (4)(c) as the proposed development would have a gross floor area of only 1,000 square metres. 

The Court further determined that the proposed development sits uncomfortably with overall outcome (5)(a) of the Zone Code of the Planning Scheme. This is because the proposed development would be perceived as a large non-residential development in a residential area which is not consistent with the subtropical, low rise, low density character envisaged for the Zone Code.  

Were there any interface issues? 

The Court noted that the interface between the proposed development, being a residential use, and the surrounding development was a planning consideration which needed to be examined further. Overall outcome (2)(f)(v) of the Zone Code of the Planning Scheme required development to sensitively transition to surrounding uses. Further overall outcome (2)(k) of the Zone Code of the Planning Scheme also noted that development should maintain adequate buffering between adjoining land uses. 

The Court determined that the proposed development would not sensitively transition to, or buffer, the adjoining dwelling house. The Court found that the proposed screening along the common boundary did not demonstrate compliance with PO16 of the Community facilities code which requires development to not impose adverse visual amenity impacts on surrounding sensitive uses as it was unclear how well the screen would reduce the view of the carpark. The Court found that the adjoining property would still have a clear view of the tallest part of the built form of the proposed development and thus was not consistent with what was intended under the Zone Code. 

Did the proposed development conflict with the amenity of the area? 

The Council argued that the proposed development would impact the amenity of the local area due to its setting, building bulk and scale, the scale of the proposed use and the lack of transition which was provided to surrounding development. Additionally, the Council argued the proposed hours of operation and traffic arrangements would give rise to unacceptable amenity impacts. 

In relation to the proposed hours of operation for the proposed development, the Appellants argued that the opening hours of the proposed development would be between 7:00 am to 6:30 pm with staff arriving and leaving outside of those hours. The Court noted this was not consistent with the high level of amenity expected in the Zone Code and also conflicted with PO1 of the Community facilities code as it would impact upon the amenity of nearby sensitive uses. Additionally, the Court determined that the operating hours of the proposed development conflicted with AO1.1 of the Community facilities code of the Planning Scheme which limits the operating hours of non-residential uses to be between 7:00 am and 6:30 pm. 

In relation to the traffic impacts of the proposed development, the Council argued that the increased number of traffic movements upon Goldie Street would impact upon the existing amenity of the area. The expert traffic engineer for the Council noted that the proposed development would increase the traffic movements from 14 vehicle movements during the peak hour to 107 vehicles during the weekday morning peak in the surrounding streets. The Court determined the proposed development would increase non-local traffic into the surrounding residential streets and therefore conflicted with PO1 of the Childcare centre code of the Planning Scheme.

Was there a strong and pressing need for the proposed development?

The last issue which the Court considered was whether there was a need for the development. The Court was assisted by the evidence of the economic experts for the parties. The Court noted that the evidence provided by the expert economists' established that if the proposed development was approved and subsequently constructed, it would cause an oversupply of childcare centres in the area. 

The Court held that the Appellant had failed to establish that there was a strong and pressing need for the development as the nine features of the evidence they relied upon only established that there was a general need for additional childcare centres in the area. Therefore the Court held that there was no pressing need for the proposed development. 

Conclusion

The Court concluded that the proposed development did not align with the Planning Scheme as it was not anticipated in the Zone Code and did not support a high level of amenity. The Court further noted that there was no nexus between the identified demand and the size and scale of the proposed development. The Court therefore 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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