In brief

The case of Northern Properties Pty Ltd v Brisbane City Council [2019] QPEC 66 concerned an appeal by Northern Properties Pty Ltd (Northern Properties) against the decision of the Brisbane City Council (Council) to refuse a mixed use development application over land located at Dalmarnock Street, Enoggera (Subject Land).

The proposed development application for a mixed use development was impact assessable against the Brisbane City Plan 2014 (City Plan), and comprised the following components (Development):

1. two basement levels of car parking;

2. a childcare centre for 106 children located on the ground floor (Childcare Component);

3. 19 apartments across two levels situated above the childcare centre (Multiple Dwelling Component). 

The Council alleged that the Development would, firstly, result in an unacceptable noise impact, and secondly, cater for more than a local community facility need, and therefore, the Development did not comply with the City Plan. The Court did not agree.

The Court held that the Council's decision to refuse the application be set aside and that the Council provide a draft suite of conditions in respect of the Development.

Noise impacts generated by the Childcare Component to be expected by owners and occupiers of the Multiple Dwelling Component

The Court considered evidence from a joint expert report drafted conjointly by two acoustic experts which determined that five of the nineteen apartment residences would be subject to a noise impact in excess of the noise limit prescribed by Performance Outcome PO10 of the Childcare centre code in the City Plan. However, unusually, despite not meeting Performance Outcome PO10, the Development does comply with the relevant acceptable outcomes in respect of Performance Outcome PO10.

The Court concluded that the noise impact generated from the Childcare Component falls within the range of impacts reasonably expected by the Multiple Dwelling Component of the Development having regard to the City Plan, for the following reasons:

  • the characteristics of the noise, including the type, scale and area affected;

  • the time that the noise is generated and its duration;

  • the knowledge of the presence of the Childcare Component.

The Court noted that the provisions of the City Plan suggest that owners or occupiers of the Multiple Dwelling Component would not have an unassailable expectation that they will not be affected on their balcony by the noise generated by the Childcare Component of the same development.  

The Court concluded that the City Plan does not prohibit sensitive uses "not associated" with the Development and that the Development will not generate a noise impact on sensitive uses outside of the boundaries of the Development, and, accordingly, the generated noise impacts from the Childcare Component do not warrant the refusal of the Development.  

Non-compliance due to the Childcare Component catering for a need generated by employees and visitors to the local area was not considered to be a reason for refusal

The Court heard evidence from two economic experts which identified that although the local demand generated by the population of the local area is equivalent to 3.6 childcare centres, and that there are currently seven childcare centres operating in the local area, the local market is supply constrained. The Court, therefore, accepted that there is a need for the Development.

The Council alleged that the Childcare Component resulted in a material non-compliance with the City Plan, namely Overall Outcome (4)(p) of the Low-medium density residential zone code, which relevantly states:

"(p) Development for any other non-residential use serves a local community facility need only such as a child care centre or a substation."

The Council alleged that the demand was generated externally to the local area, by parents seeking to place their children in a childcare centre near their work, or near public transport nodes, and that the Development did not comply with Overall outcome (4)(p) of the Low-medium density residential zone code for the following reasons:

  • whether it complies with the Overall outcome (4)(p) is a matter of fact and degree;

  • the planning purpose of Overall outcome (4)(p) is to only permit smaller childcare centres in local areas;

  • other sections of the City Plan permit larger childcare centres in areas with denser populations. 

The Court held that employees and visitors to the non-residential uses in the zone do form part of the local community demand for the area, but that as the demand generated by the employees and visitors is substantial, there is non-compliance with Overall Outcome (4)(p).

However, as the relevant neighbourhood plan of the City Plan for the local area permits childcare centres that cater to residents, employees and visitors, the non-compliance with Overall Outcome (4)(p) was not considered a reason for refusal. Particularly as a neighbourhood plan is a finer grained local planning document directed at particular local planning issues.

Relevant matters

The following relevant matters were advanced by Northern Properties, and were accepted by the Court:

1. there is a need for the proposed development; 

2. the need can be met on the land absent any unacceptable impacts.

Exercise of planning discretion

The Court noted that it has a broad planning discretion under the Planning Act 2016, which, among other things, required the Court to reach a balanced decision in the public interest. 

Relevant to the Court's view that there are compelling reasons favouring approval was the compliance of the Development with the City Plan read as a whole, the technical nature of any non-compliance, and the significant weight given to the identified need. 

Conclusion

The Court set aside the decision of the Council, as the Court was satisfied that the Development would represent a balanced decision in the public interest (in a planning sense).

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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