In brief

The case of Peach v Brisbane City Council [2019] QPEC 41 concerned a submitter appeal against a decision by the Brisbane City Council (Council) to approve an impact assessable development application for a high-rise office tower in Spring Hill, Brisbane made by the Co-Respondent developer (Applicant). 

The Applicant made a development application in January 2018 to the Council for a 27 storey high-rise office tower on land situated at 152 Wharf Street, Spring Hill. Relevantly, the tower design had two identifiable components, a podium and a tower.

The Council’s approval was based on a detailed assessment of the proposed development against the then current Brisbane City Plan 2014 (Planning Scheme), being version 8 (v.8), and the planning scheme amendments that had been adopted, but not yet taken effect (v.13). The Court found that the Council had placed determinative weight on v.13 of the Planning Scheme, which were treated as favouring approval of the proposed development. 

The Applicant accepted that the proposed development did not comply with the Planning Scheme in force at the time of the application, being v.8. It was contended that the proposed development was designed to respond to the shift in the Council’s planning for the land, and Spring Hill, exemplified by v.13 of the Planning Scheme.

A submitter appellant (Appellant) appealed the Council's approval on the basis that it did not comply with, and was in conflict with, v.8 and v.13 of the Planning Scheme and there were no grounds, or relevant matters, to justify the approval. 

The Court considered the following in its determination:

  • Was v.8 of the Planning Scheme overtaken by events?

  • Did the application comply with v.13 of the Planning Scheme?

  • Was there a basis in town planning practice, or principle, to approve the development application in the face of non-compliance with v.8 and/or v.13 of the Planning Scheme?

The Court dismissed the appeal in the exercise of the planning discretion on the basis that compliance with the underlying planning objectives of v.13 of the Planning Scheme was appropriately demonstrated by the proposed development. 

This case is significant for the Court’s continued 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). It closely follows the Court’s reasoning in the decisions of Smout v Brisbane City Council [2019] QPEC 10 (Smout) and Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 (Ashvan). 

Court affirms the statutory assessment and decision making framework under the Planning Act 2016 

The Court observed that as the proposed development was impact assessable it was subject to the revised statutory assessment and decision making framework under the PA and the Planning and Environment Court Act 2016

The Court made explicit reference to maintaining consistency with its earlier decisions in Smout and Ashvan, which considered the differences between the "relevant matters" test under section 45(5)(b) of PA and the previous "sufficient grounds" test under section 326(1)(b) of the SPA.

The Court stated that a central issue in the appeal concerned the weight to be given to the assessment of the proposed development under v.8 and v.13 of the Planning Scheme in the exercise of the planning discretion under section 60(3) of the PA. The Court affirmed the proposition that the planning discretion under the PA is more flexible than its statutory predecessor under the SPA. 

The Court expressed, at [47], that the provisions of the PA which confer discretion to consider "relevant matters" do not purport to: 

"predetermine, or limit, the weight a relevant matter/s may be given in the assessment of a development application or in the exercise of the planning discretion.

The Court held that while the PA gives limited guidance as to the weight that may be given to "relevant matters", it confirmed, at [47];

"The weight to be given to a prescribed matter, or a relevant matter, is for the assessment manager… to determine on an application by application basis."

A strict application of Brisbane City Council v Klinkert [2019] QCA 40 (Klinkert), in seeking to limit the weight to be afforded to v.13 of the Planning Scheme, was rejected on the basis that Klinkert involved a code assessable development, and that no equally applicable limitation appeared in section 45(5)(b) of the PA.

The Court concluded its discussion of the statutory assessment and decision making framework by reiterating, at [64], its observation in Ashvan that section 45(5)(b) "captures an expansive range of considerations, and includes matters for, and against, approval.

It held that v.8 and v.13 of the Planning Scheme were both "relevant matters" which may be given weight, as accorded by the relevant decision maker, in this case being the Court. 

Was version 8 of the planning scheme overtaken by events?

The Court stated that the statutory assessment and decision making framework mandated that the application be assessed against v.8 of the Planning Scheme. The Applicant conceded two non-compliances with v.8, namely the height of the proposed development and the "non-traditional" design of the podium component. The Court noted that these concessions did not represent the full extent of the non-compliances. 

The Court found non-compliances in the development’s height, bulk, scale and resulting form. Further, it noted that the proposed development’s relationship with its neighbouring building, Quattro on Astor, could not be characterised as a "sensitive transition" as required by the then in force Petrie Terrace and Spring Hill neighbourhood plan (PTSHNP). The PTSHNP formed part of v.8 of the Planning Scheme.

The Court found that the nature of the non-compliances with v.8 of the Planning Scheme were significant and, taken in isolation, would represent a compelling reason to refuse the application. 

The Applicant contended that the non-compliances should not be determinative of the appeal as v.8 of the Planning Scheme had been overtaken by events. The Court stated, at [85], that the Applicant's submission:

relies upon the long-established principle that a planning appeal court may depart from the intent expressed in a planning scheme where a local government has itself departed from that intent, or where it has been overtaken by events.

The Court stated that though cases engaging this principle are rare, this matter was one of those rare cases as v.8 of the Planning Scheme no longer had planning relevance for the locality of the proposed development. The Court held that v.13 of the Planning Scheme should be determinative. 

Does the development comply with version 13 of the Brisbane City Plan 2014?

The Court, in the exercise of its planning discretion, provided an assessment of the proposed development against the benchmarks regarding height, bulk, scale, character and amenity, and the weight to be given to "relevant matters". 

The Court grouped the myriad of non-compliances alleged by the Appellant into nine categories, and found as follows:

1. Excessive height

The Court rejected the Appellant’s contention that the proposed development was of an excessive height. It considered the Spring Hill Neighbourhood Plan (SHNP) code and the development approval for the land granted by Council in 2018 (2018 Approval), which both envisaged a development of 30 storeys larger than the 27 storeys proposed by the development. Relevantly, it held that the proposed development represented an intended transition in height between the CBD and Spring Hill.

2. Excessive bulk and scale

The Court noted the numerous and often repetitive non-compliances contended by the Appellant arising from the bulk and scale of the proposed development.

The Court rejected all of the Appellant's contentions and held that the bulk and scale of the proposed development was appropriate, having regard to v.13 of the Planning Scheme. The Court noted the importance of giving attention to the contextual features of the proposed development in assessing its compliance with the provisions of the SHNP and the Principal centre zone codes, and the Planning Scheme.

The Court relevantly noted its satisfaction that the design of the proposed development included appropriate and effective design measures to mitigate its bulk and scale in compliance with the SHNP code and Principal centre zone code.

3.  Insufficient setbacks

In rejecting the Appellant's contentions on this point, the Court referenced its discussion of the proposed development's bulk and scale. Notably, the Court stated that a strict application of the separation distance required under performance outcome PO26 of the SHNP code would result in a built form unresponsive to the shape of the land, effectively sterilising a large proportion of the land.

4. Inappropriate form

The Appellant contended the proposed development's design was not one of a podium and tower and was an inappropriate form for the locality. The Court did not accept this. 

In its analysis, the Court reviewed the definition of a "street building" introduced under performance outcome PO4 of the SHNP. The Court found a reference to "Figure c" in the SHNP code was for guidance, and did not preclude the proposed development's "subtle" tower and podium design from achieving the planning objectives under the SHNP code.

Further, in addressing the Appellant's concerns regarding the landscaping proposed by the development, the Court noted, at [266], that the proposed development would "positively contribute to the streetscape and city skyline".

5. Does not deliver high quality, subtropical architecture

The Court found that the evidence provided by the Applicant's expert, in stating that the proposed development would deliver high quality, subtropical design, was persuasive and not undermined in cross-examination.

6. Out of character with the existing and planned character

The Court found that the proposed development would be consistent with the existing and intended character of the locality, being one in a state of transition.

7. Adverse amenity impacts

The Court found that the proposed development would not give rise to any adverse amenity impacts, not otherwise anticipated by the SHNP and Principal centre zone code.

8. Undermines role and function of City Centre

The Appellant submitted that the intensity of the proposed development did not support the role and function of the locality. The Court found that the locality was within the Principal Centre and the City Centre expansion precinct, and that development of high intensity, such as the proposed development, was anticipated and promoted.

9. No appropriate landscaping

The Appellant made further separate submissions regarding the landscaping of the proposed development. The Court held that the submissions were not furthered as reasons for refusal, but rather as symptoms of overdevelopment of the land. The Court found that the Applicant established the proposed landscaping was appropriate and not a symptom of overdevelopment.

Conclusion

In exercising its planning discretion, the Court concluded that while the proposed development did not align with v.8 of the Planning Scheme, its compliance was to be drawn against v.13 of the Planning Scheme as the contemporary statement of planning intent at the relevant time. Further, though the proposed development was not consistent with the built form character of the locality, the Court was satisfied that it appropriately responded to the shift in the planning intent for the land and locality.

The Court, in dismissing the Appellant's appeal, noted that the proposed development generally complied with the SHNP code, would not give rise to unacceptable impacts on the amenity or character of the local area, and its design was of a standard that was envisaged by the SHNP code, and the Principal centre zone code.

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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