In brief

The case of The Planning Place Pty Ltd v Brisbane City Council [2018] QPEC 62 concerned an appeal by Planning Place Pty Ltd (Applicant) to the Planning and Environment Court against the decision of the Brisbane City Council (Council) to refuse a development application to facilitate the redevelopment of a corner block into two dwelling houses. The subject site was 883m2 on undulating terrain with a frontage of 19 metres to Rupert Street and 39 metres to Flower Street at Windsor. As part of the development application, the Applicant sought a development permit for the reconfiguration of a lot to create two lots, having an area of 357m2 (Proposed Lot 1) and of 508m2 (Proposed Lot 2). The development application also sought a development permit for a material change of use and building works to facilitate the building of a small lot dwelling house on Proposed Lot 1 and the building of a dwelling house on Proposed Lot 2, each being three storeys above a basement carpark partially excavated into the slope.

The Planning Act 2016 (PA) applied to the appeal because it was filed after its commencement. The development application was made under version 7.0/2016 of the Brisbane City Plan 2014 (Planning Scheme). However, the Council sought to rely on amendments introduced in version 8.0/2016 of the Planning Scheme.

The Applicant and the Council agreed that the development application for the development permit for reconfiguration of a lot was consistent with the Planning Scheme. Therefore, the issues in dispute in the appeal concerned the development application for a development permit for the material change of use and building works.

The Court considered the following issues in the appeal:

  • whether the proposed dwelling houses complied with the relevant acceptable outcomes;

  • whether there was a prevailing height among the dwelling houses in the area;

  • whether the Proposed Lot 1 dwelling house complied with the Dwelling House (Small Lot) Code (Small Lot Code);

  • whether the Proposed Lot 2 dwelling house complied with the Dwelling House Code (Dwelling Code);

  • whether the proposed dwelling houses complied with the Low-medium Density Residential Zone Code (Residential Zone Code);

  • whether the proposed dwelling houses complied with the Lutwyche Road Corridor Neighbourhood Plan Code (Lutwyche Road NP Code);

  • whether the Court should exercise its discretion to consider the amendments to the Planning Scheme or to approve the development application if the proposed dwelling houses did not comply with the relevant assessment benchmarks

The Court held that the development application complied with all relevant assessment benchmarks, and allowed the appeal.

Court held the proposed dwelling houses complied with the relevant acceptable outcomes

There was no dispute that the Proposed Lot 1 dwelling house was in conflict with AO2.1 and AO2.2 of the Small Lot Code because it exceeded the maximum height of 7.5 metres and the maximum height of two storeys.

In respect of the Proposed Lot 2 dwelling house there was conflict with AO2 of the Dwelling Code as it exceeded the maximum height of two storeys.

However, the Court held that the failure to comply with the acceptable outcomes was not determinative and that compliance could be achieved if the purpose, overall outcomes and performance outcomes of the relevant code were satisfied.

Court held that there was a prevailing height in storeys in the area but not a prevailing height in metres

The relevant benchmarks included the following:

PO2(a) Small Lot Code
Development is of a build and scale that:
a) is consistent with and complements the built form and front boundary setbacks prevailing in the street and local area

PO2(a) House Code
Development has a building height that:
a) is consistent with the building height of dwelling houses prevailing in the immediate vicinity

Both PO2(a) of the Small Lot Code and PO2(b) of the House Code required the Court to determine the prevailing height of the dwelling houses in the area. The Court held that there was a prevailing building height of two storeys but that there was no prevailing building height in metres.

Court held that the Proposed Lot 1 dwelling house was consistent with the Small Lot Code

The Council argued that the Proposed Lot 1 dwelling house conflicted with PO2(a) of the Small Lot Code because the proposed dwelling house's height was not consistent with the prevailing bulk and scale of the built form in the street and local area. The Court agreed and held that the Proposed Lot 1 dwelling house exceeded the prevailing height of two storeys.

The Court applied the principles from Lake Maroons Pty Ltd v Gladstone Regional Council [2017] QPEC 25 and concluded that PO2(a) of the Small Lot Code would be satisfied if the built form of the Proposed Lot 1 dwelling house was "consistent with" the prevailing bulk and scale of the built forms in the street and local area, meaning "compatible with, in the sense of being capable of existing in harmony with".

The Court concluded that although the dwelling houses in the local area were generally one to two storeys, those on the high side of the street were elevated above the street on retaining walls. The Court therefore held that the relative height of other dwelling houses was an important contextual factor to be considered. The Court accepted that although the Proposed Lot 1 dwelling house was approximately 9.5 metres, the recessed third storey meant the proposed dwelling house would appear to be of a similar bulk and scale to the built forms of the opposite properties. The Court also concluded that the Proposed Lot 1 dwelling house would sit at a lower profile to the adjoining heritage property and that the Proposed Lot 1 dwelling house would appear as two storeys to Rupert Street and the adjoining property.

The Court also held that the proposed design details would ameliorate the Proposed Lot 1 dwelling house with the prevailing bulk and scale of the built forms in the street and local area. The full height glazed walls extending across the full width of the proposed dwelling house, which were set back behind a terrace with glazed balustrades, mitigated the proposed dwelling house visual solidity on the Rupert Street façade, and the recessed garage door beneath the pool terrace and the terrace landscaping mitigated the basement's visual impacts.

The Council argued that the Proposed Lot 1 dwelling house was not "consistent with" the prevailing bulk and scale of the built form in the street and the local area because there was no other site that had two dwelling houses on top of a continuous platform or had a dwelling house with four tiers. The Court rejected this argument and held that PO2(a) of the Small Lot Code required dwelling houses to be "consistent with", not "the same as" the prevailing bulk and scale of the built forms in the street and local area.

The Court therefore held that the Proposed Lot 1 dwelling house complied with PO2(a) of the Small Lot Code.

Court held that the Proposed Lot 2 dwelling house was consistent with the Dwelling Code

The Council argued that the Proposed Lot 2 dwelling house was in conflict with PO2(a) of the Dwelling Code, as the proposed dwelling house's height was not consistent with the prevailing height in metres and the prevailing height in storeys in the immediate vicinity. The Council relied on AO2 of the Dwelling Code, which relevantly states that a building height is to be no more than 9.5 metres and no more than two storeys.

The Court did not accept that the Dwelling Code required the proposed dwelling house to meet both limbs of the definition under AO2 of the Dwelling Code. Moreover, the Court found that the Council's argument ignored that PO2(a) of the Dwelling Code only required "consistency with" the prevailing building height of the dwelling houses in the immediate vicinity. This determination involves a certain elasticity and is not purely numerical or quantitative.

The height of the Proposed Lot 2 dwelling house was three storeys and approximately 9.5 metres. The Court held that this exceeded the prevailing two-storey height in the immediate vicinity.

However, the Court ultimately held that the height of the Proposed Lot 2 dwelling house was still consistent with the prevailing height of dwelling houses in the immediate vicinity. This was because the relative height of the proposed and adjoining dwelling houses were comparable; that despite the prevailing height being two storeys the dwelling houses on the high side of the street were elevated on platforms which added apparent height; that the same design features discussed previously contributed to consistency with the prevailing height of dwelling houses in the immediate vicinity; and that integration of the building into the hilltop and topography reflected the slope of the terrain.

The Court therefore held that the Proposed Lot 2 dwelling house complied with PO2(a) of the Dwelling Code.

Court held that the proposed dwelling houses were consistent with the Residential Zone Code

Overall Outcomes 5(a) and 5(b)(ii) Residential Zone Code relevantly required that a dwelling house be of a height tailored to the specific location and be of a height that responds to the characteristics of the subject site. The Council argued four reasons why the proposed dwelling houses conflicted with the assessment benchmarks.

Firstly, that the proposed dwelling houses did not respond to the sloping topography apart from at the southern end of the proposed dwelling houses. Secondly, that the proposed dwelling houses made no attempt to reduce their bulk or height. Thirdly, that the proposed dwelling houses exceeded the prevailing height of dwelling houses because they appeared to be three to four storeys to Rupert Street and three storeys to Flower Street. Fourthly, that the proposed dwelling houses would appear as one building when standing directly in front of Rupert Street.

The Court rejected the arguments on all grounds.

The Court also considered the Council's arguments against Overall Outcomes 7(a) and 7(b) of the Residential Zone Code despite the Council not alleging non-compliance with these provisions. The Court held that the proposed dwelling houses were consistent with Overall Outcome 7(a) of the Residential Zone Code as the provision encouraged two to three storey low-medium rise dual occupancies or multiple dwellings, which may appear as a single building. The Court held that the proposed dwelling houses were also consistent with Overall Outcome 7(b) of the Residential Zone Code as the site was located a short distance from a public transport node.

The Court therefore held that the proposed dwelling houses complied with Overall Outcomes 5(a), 5(b)(ii), 7(a) and 7(b) of the Residential Zone Code.

Court held that the proposed dwelling houses were consistent with the Lutwyche Road NP Code

The Council argued that the proposed dwelling houses did not comply with Overall Outcome 3(j) of the Lutwyche Road NP Code because the proposed dwelling houses were not of a height consistent with the amenity, character and community expectations intended for the site and that the site should only be developed at a greater height when there was both a community and economic need. However, the subject site was not within a relevant precinct or sub-precinct of the Lutwyche Road NP Code. Despite this, the Court held that the generally relevant overall outcomes provided no guidance on the intended amenity, character or community expectations at the site.

Performance Outcome PO1 of the Lutwyche Road NP Code was the only generally relevant performance outcome. However, the Court held there was no conflict with this provision.

The Court therefore held that the amenity, character and community expectations for the site could be determined by other provisions in the Planning Scheme. Specifically, the Court concluded that if the proposed dwelling houses complied with relevant provisions of the Small Lot Code, the Dwelling House Code and the Residential Zone Code, then the height of the proposed dwelling houses could be regarded as consistent with the amenity, character and community expectations intended for the site.

The Court therefore held that the proposed dwelling houses complied with the relevant assessment benchmarks and that the development application ought be approved under section 60(2)(a) of the PA.

Court held it was unnecessary to make a determination upon any discretionary considerations

The Court did not consider whether the development application complied with the amended assessment benchmarks under the Planning Scheme because the Court held that the proposed dwelling houses complied with the Planning Scheme when the development application was made.

The Court did not consider whether the development application ought to be approved on discretionary grounds under section 60(2)(b) of the PA, because the Court held that the development application complied with the Planning Scheme and ought be approved under section 60(2)(a) of the PA.

Conclusion

The Court allowed the appeal and directed the Council to deliver a draft suite of conditions to the Applicant.

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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