In brief

The case of Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors [2014] QCA 147 concerned separate but linked appeals to the Queensland Court of Appeal by Zappala Family Co Pty Ltd (Appellant) and Brisbane City Council (Council) against the judgment of the Planning and Environment Court (P&E Court) to allow an appeal by submitters (Submitters) against the Council's decision to approve a development application for a material change of use for a Hotel on land situated at 26-30 McDougall Street, Milton (Premises). The proposed development for a 14-storey hotel relevantly included 132 hotel rooms, short-term accommodation on levels 2 to 13, and 56 car spaces which included 18 car spaces provided by the utilisation of car stackers (Proposed Development).

The Court of Appeal granted leave to appeal. The relevant grounds of appeal before the Court of Appeal were that the P&E Court (see [47]):

  • had misconstrued the relevant provisions of the Transport, Access, Parking and Servicing Code (TAPS Code) in the now repealed Brisbane City Plan 2000 (City Plan);

  • had erred in finding that the Proposed Development was within the use definition of "Short-Term Accommodation" and not "Hotel", and was therefore in conflict with the TAPS Code; and

  • had erred in disregarding the unanimous opinion of three traffic engineers that the Proposed Development would generate demand for between 33 and 44 car spaces.

P&E Court decision to allow the appeal by the Submitters

Section 326 of the now repealed Sustainable Planning Act 2009 (Qld) (SPA) required that the relevant assessment manager's decision not conflict with the City Plan unless there were "sufficient grounds to justify the decision, despite the conflict".

The P&E Court's reasoning for allowing the appeal by the Submitters included that there were not sufficient grounds to justify the approval of the Proposed Development due to the significant conflict with the TAPS Code, in particular with Performance Criteria P7.

Court of Appeal considers the principles of statutory construction that apply to the construction of a planning scheme

Initially, the Court of Appeal set out the principles of statutory construction that apply to the construction of a planning scheme. The Court of Appeal stated that "the same principles which apply to statutory construction apply to the construction of planning documents" and went on to quote paragraphs [69] to [71] and [78] of the High Court judgment Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

The Court of Appeal also referred to the case of AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44 and at [56] went on to state that:

"The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes."

Court of Appeal finds that the Proposed Development was for a Hotel use not a Short-Term Accommodation use

The Appellant, through its development application, characterised the Proposed Development as a Hotel use, while the Submitters contented that the Proposed Development ought to be characterised as Short-Term Accommodation. For a number of reasons, the Court of Appeal rejected the Submitters' contention that the relevant use ought to be determined by simply considering the gross floor area of each use. Instead, in noting the intensity of the use, the Court of Appeal determined that the Proposed Development was for a Hotel.

This was in contrast with the conclusion of the P&E Court that the Proposed Development was for Short-Term Accommodation.

Court of Appeal determines that the Hotel use was a non-residential use under the City Plan

The Court of Appeal considered relevant case law and the provisions of the City Plan, and acknowledged that the term "residential" has the connotation of a long-term or permanent residence (at [78] to [80]). Therefore, the Court of Appeal held that a Hotel use was a non-residential use.

Court of Appeal determined that the provision of 56 carparking spaces satisfied A7.3, and therefore P7, of the TAPS Code resulting in compliance with the City Plan

The Court of Appeal then went on to apply the relevant statutory principles of interpretation to Performance criteria P7 of the TAPS Code and, in accordance with the findings already outlined above, determined that A7.3 was applicable. Performance criteria P7 of the TAPS Code relevantly requires that "…the development must achieve adequate provision for on-site vehicle parking…". A7.3 of the TAPS Code relevantly states the following in relation to an acceptable car-parking rate, "on-site carparking numbers…do not exceed 1 car space for every 200m2 of gross floor area". Relevantly, A7.3 of the TAPS Code does not impose a minimum requirement or make any comment on off-street parking.

The Court of Appeal stated that an error in the P&E Court's application of the TAPS Code was determining that the Proposed Development did not comply with A7.3, resulting in conflict with P7, for the reason that A7.3 was inapplicable as the Proposed Development was a Short-Term Accommodation use.

After considering the P&E Court's conclusions on the applicability of A7.3 and P7 of the TAPS Code, in particular that there was significant conflict with the TAPS Code, the Court of Appeal stated that the P&E Court's conclusion could not be sustained (at [106]).

As the provision of 56 car spaces satisfied the requirements of A7.3, and was therefore not in conflict with P7 of the TAPS Code, the Court of Appeal upheld the ground of appeal that the P&E Court had erred in finding that the Proposed Development was in conflict with the TAPS Code.

Court of Appeal held that the P&E Court ought to have applied the unanimous opinion of three traffic engineers

By failing to acknowledge the unanimous opinion of three traffic engineers that the carparking demand of the Hotel component of the Proposed Development was 33 to 44 carparking spaces, which the traffic engineers considered resulted in compliance with the TAPS Code, the Court of Appeal held that the P&E Court fell into error.

The Court of Appeal therefore upheld the ground of appeal that the P&E Court had erred in disregarding the unanimous opinion of three traffic engineers.

Court of Appeal dismissed further grounds

The Court of Appeal also considered further grounds of appeal made by the Submitters in relation to errors in the P&E Court judgment about amenity and extra evidence. However, after considering those grounds, the Court of Appeal decided that those grounds were not made out.

Conclusion

The Court of Appeal held that the P&E Court erred in relation to the characterisation of the use of the Proposed Development, the resulting application of the TAPS Code, and the failure to adopt the unanimous opinion of the expert traffic engineers, which materially affected the decision of the P&E Court.

The Court of Appeal, therefore, allowed the appeal by the Appellant and the Council, and rejected the grounds of appeal put forward by the Submitters.

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 2021.

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