In brief

The case of Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33 concerned a submitter appeal to the Planning and Environment Court against a decision of the Brisbane City Council to approve a development application for a development permit for 19 residential lots on Blunder Road at Doolandella.

The subject land is within the Doolandella Neighbourhood Plan Area, with proposed lots 1 to 18 included in the Emerging Community Zone and the balance lot, being the largest lot, included in the Rural Zone. 

The submitter owns a site to the east of the subject land, which is in the process of being developed or is planned for future development.

The Court discussed at length recent developments in respect of the statutory regime for deciding a development application being, broadly speaking, that there is greater flexibility in the decision-making process as the starting point is not to refuse a development application that conflicts with a planning scheme. 

The Court went on to consider the key issues in the appeal, being road access, planning for trunk infrastructure, orderly and sequential development for the locality, lot sizes and the location of a park. The Court observed that "[a]t the heart of [the submitter's] case was that the proposed development constitutes an out of sequence development and, as a consequence, involves an inefficient use of existing infrastructure and results in an overall unacceptable interference with what would be reasonably expected had the land been developed in conjunction with surrounding land in a logical and sequential manner" (see paragraph [12]).

The Court agreed with the submitter in respect of the road access issue, but was satisfied that the issue could be overcome with an appropriate condition. The Court was satisfied that the imposition of the condition overcame some of the other issues and what remained did not warrant refusal of the development application. The Court therefore dismissed the appeal subject to the imposition of the road access condition. 

Court summarised recent developments in respect of the statutory regime for deciding a development application

The Court traversed the recent decisions in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 (Ashvan Decision) and Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 (K & K Decision) and stated as follows:

  • The Court in the Ashvan Decision stated that section 47 of the Planning and Environment Court Act 2016 gives broad discretionary powers to the Court and that discretion "does not require the Court to refuse a development application in circumstances where 'conflict' is established with an adopted planning control and there is an absence of 'sufficient grounds'" (see paragraph [18]). The discretion conferred by section 60(3) of the Planning Act 2016 provides more flexibility in the decision-making process as the starting point is not to refuse a development application where there is a conflict with a planning scheme, allowing a balanced decision in the public interest.

  • "It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established" (see paragraph [20]).

  • "The manner in which the balance between rigidity and flexibility is struck in any given case does not lend itself to a general statement of principle, or precise formulation. The planning discretion, and the inherent balancing exercise, is invariably complicated, and multi-faceted. … It will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances" (see paragraph [20]).

  • "One would need strong reasons for refusing an application, which on its face, was consistent with the adopted planning controls" (see paragraph [20]).

  • The Court's observations in the Ashvan Decision need to, however, be considered having regard to the reasoning of the Court of Appeal in the K & K Decision. In particular, the Court of Appeal stated "[a]t the heart of decisions like these is the acknowledgement that conformity with the Planning Scheme is, prima facie, in the public interest". The Court of Appeal went on to state "[t]he proposition can be put the other way around [being that] [i]t is, in general, against the public interest to approve a development that conflicts with the Planning Scheme" (see paragraph [21]).

The Court therefore held that the starting point ought to be to determine the intent and desired outcomes stated in a planning scheme and that they represent what is in the best public interest. The Court went on to caution against any material departure from the intent or desired outcomes as that would be, prima facie, contrary to the public interest. Rather, what ought to occur is a construction of a planning scheme which achieves a "balanced decision in the public interest" or, put another way "the balancing of the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected" (see paragraph [25]).

Court considered the issues in the appeal and found the issue in respect of road access to be the only issue of material consequence

Five issues fell for determination by the Court: road access, planning for trunk infrastructure, orderly and sequential development for the locality, lot sizes and the location of a park.

In respect of road access, the proposed arrangements involved temporary road access to Blunder Road, to be replaced with permanent road access via Brookside Street and Sallyanne Street at the time that road access is available, and, which the Court found, relies upon road works being carried out on the adjoining lot 4. 

The Court considered four issues raised by the traffic engineering experts in respect of road access and road design. Firstly, the timing for the permanent road access is "completely at the hands of somebody else" being the developer of the adjoining lot 4 (see paragraph [32]). Secondly, if another adjoining lot is developed before the adjoining lot 4 the traffic from that development would have to use the temporary road access to Blunder Road. Thirdly, the temporary road access was considered by the traffic engineering expert for the Council and the applicant to not be an optimal outcome and would prejudice the efficient development of the adjoining lot 4. Lastly, the traffic engineering expert for the Council and the applicant also argued that the proposed temporary road access to Blunder Road was not fatal to the approval of the development application, and that there were three potential alternate internal street layouts which would not warrant refusal on traffic grounds, all of which would provide potential road access to the adjoining lot 4.

The Court found that the proposed road access arrangements, in particular the failure to provide road access to the adjoining lot 4, did not comply with relevant traffic assessment benchmarks, being Overall Outcome 3(h) of the Emerging Community Zone Code and Performance Outcome 10 and 11 of the Subdivision Code, which concern an integrated, permeable, connected and safe transport network. The Court was satisfied that the imposition of a condition requiring the road access would adequately address the non-compliance. 

The Court found that the imposition of the road access condition resolved the issues in respect of planning for trunk infrastructure, and the orderly and sequential development for the locality. The town planning expert for the submitter conceded that the issues in respect of lot size and density "were lower order matters that would not warrant refusal" (see paragraph [51]). The only remaining issue for the Court was therefore the location of a park.

Court considered the planning documents to determine the public's expectations in respect of the location of the future park

The parties disagreed in respect of the location of a park, which was identified as being in various locations but in the general locality in the Neighbourhood Plan, the Local Government Infrastructure Plan (LGIP), the Priority Infrastructure Plan (PIP) and the structure plan lodged by the applicant.

The town planning experts agreed that a local park east of Blunder Road and north of Brookside Street was a desirable planning outcome, but could not agree on its exact location. The Court stated that the park's location ought to be determined by accessibility, area and the public's expectations.

The Court found that the proposed location shown on the applicant's structure plan was in the southern extremity of the likely catchment area, but this did not materially affect accessibility. The Court found that the park is to be a district park, consistent with the Neighbourhood Plan, being a minimum of 0.8 hectares which could be accommodated in the proposed location. The Court also found that the public's expectations about the location of the park is informed by the Neighbourhood Plan, LGIP and PIP, understanding that they show only indicative locations for the park, and the incidents of departure from those planning instruments. The Court found, on balance, that the proposed location of the park was not contrary to public expectations, and insofar as there might be a departure from public expectations created by the Neighbourhood Plan, LGIP and PIP, it was not an unacceptable departure. The Court therefore found that the proposed location of the park was acceptable and did not warrant refusal. 

Conclusion

The Court therefore held that, subject to the imposition of a condition in respect of road access via the adjoining lot 4, there were not grounds that would warrant refusal of the development application. The Court refrained from making final orders until hearing further from the parties in respect of the form of the road access condition.

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 2020.

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