Insights

In brief

The case of Smout v Brisbane City Council [2019] QPEC 10 concerned an appeal by the registered owner of land (Landowner) to the Planning and Environment Court against the Brisbane City Council's (Council) decision to refuse a development application for a reconfiguration of a lot to realign the boundaries of the land to create two square lots and a material change of use.

The Court found that the proposed development’s non-compliance with the Brisbane City Plan 2014 (City Plan 2014) did not support the refusal of the development application, and held that it should exercise its discretion under section 60(3) of the Planning Act 2016 (PA) to approve the development application. 

Issues in dispute

The issues in the appeal were as follows:

  1. whether the proposed development’s non-compliance with the Character Residential Zone Code warranted the refusal of the development application having regard to Overall Outcome (5)(a) and Overall Outcome (6)(d); and

  2. whether the Court should exercise its discretion under section 60(3) of the PA to approve the development application despite the conflict.

Background

The land, subject of the development application is located at the corner of Abbott and Massey Street, Ascot. The land is improved by a pre-1947 traditional character dwelling. The Landowner relevantly submitted an impact assessable development application to the Council for a development approval for a reconfiguration of a lot and a material change of use. The proposed development involved realigning the boundaries of the land to create two square lots being 400m2. The existing dwelling was proposed to be partially demolished, repositioned and renovated. The Council refused the development application on five grounds. The Landowner subsequently appealed that decision.

Conflict with the City Plan 2014

The Council submitted that the development application ought be refused on the basis that there was significant non-compliance with the City Plan 2014. The Council alleged that the proposed development did not comply with the Strategic Framework, the Character Residential Zone Code (Character Code) and the Subdivision Code; however conceded at the hearing that the Character Code was the main point of contention to be determined in the appeal. 

The Council argued that the proposed development did not comply with Overall Outcome (5)(a) of the Character Code. Overall Outcome (5)(a) relevantly provides that “development occurs on an appropriately sized and configured lot and is of a form and scale that reinforces a distinctive subtropical character of low rise buildings set in green landscaped areas”. To determine what constitutes as an “appropriate size” the Council submitted that Overall Outcome (6)(d) of the Character Code prescribes a quantitative measure which should be adhered to. Overall Outcome (6)(d) relevantly provides that “development provides for a minimum lot size of 450m2 to maintain a block pattern that accommodates traditional backyards and large trees”. 

The Council submitted that if the proposed development were to be approved, it would create two square lots that were of a size less than 450m2 into a predominately rectangular block pattern, which amounted to significant non-compliance with the Character Code. The Council further argued that the proposed development did not comply with the Character Code as it created two lots that had either no backyard or a small backyard with limited potential to accommodate large trees. 

The Court considered the Council’s submissions and found that the Council’s case was founded upon a superficial approach to the Character Code and did not consider the planning rationale that underlies it. The Court held that Overall Outcome (6)(d) of the Character Code could not purport to operate as a prohibition on development involving lots less than 450m2 in size. The Court held that rather than applying an inflexible approach, the facts and circumstances of each case should be determined based on whether the underlying planning rationale had been met. 

Relevantly, the Court held that the underlying planning rationale for Overall Outcome (6)(d) was for the development to “maintain a block pattern that accommodates traditional backyards and large trees”. The Court accepted the town planning experts' evidence that the block pattern did not accommodate for "traditional backyards" in a general sense and that the size and function of the backyards in the block varied significantly. The Court was therefore satisfied that the proposed development met the underlying planning rationale of Overall Outcome (6)(d) having regard to specific locational attributes. 

The Court disagreed with the Council’s submission that the proposed development ought be refused on the basis that it did not accommodate a backyard and held that the existing character of the area included traditional character housing that did not have a backyard. The Court held that the development, if approved, would not sound in any appreciable adverse planning conflicts.

Discretion

In determining whether the Court should exercise its discretion to approve the proposed development despite its non-compliance with the City Plan 2014, the Court considered the nature of the conflict against proper town planning practice and principle. 

The Court firstly considered the purpose of the Character Code and the Strategic Framework of the City Plan 2014 and held that the proposed development would protect and enhance the character of the area. The Court found the character of the area was not influenced by the existence of "traditional backyards", and held that the proposed development created a positive contribution to the character of the area.

In relation to block size, the Court held that the proposed reconfiguration had met the underlying planning rationale of Overall Outcome (6)(d) of the Character Code, in that it maintained the block pattern. The Court therefore could not identify any adverse planning consequences arising from the proposed development. 

The Court lastly considered the requirement to exercise its discretion under the PA in a way that advances the purpose of the PA as required under section 5(2)(i) of the PA. Section 5(2)(i) of the PA relevantly provides that "advancing the purpose of this Act includes applying amenity…in the built environment in ways that are…of public benefit". The Court found that the approval of the proposed development would be consistent with section 5(2)(i) of the PA in that it would reinforce and protect the character of the zone. The Court therefore held the proposed development would achieve the stated public benefit.

Conclusion

The Court held that it should exercise it discretion to approve the proposed development despite the conflicts with the City Plan 2014. The Court granted the appeal and held that the development application should be approved subject to conditions. 

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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