In brief

The case of Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44 concerned an application to the Planning and Environment Court of Queensland (Court) seeking a declaration that a development permit for a material change of use given by the Brisbane City Council (Council) was void and of no effect.

The relevant land is situated in Toowong on a 90-degree bend parallel to the adjoining street (Subject Land). Wayne Developments Pty Ltd (Second Respondent) made a development application seeking approval for a development permit for a material change of use for multiple dwellings (three units) on the Subject Land (Proposed Development). The Council assessed the development application as code assessable. 

The Applicants are immediate neighbours to the Subject Land. By the time of the hearing, the Applicants alleged five errors in the decision-making process of the Council, being as follows:

  • The development application ought to have been assessed as impact assessable.
  • The Council erred in its findings in respect of the removal and replacement of a road safety barrier.
  • The Council erred in concluding that there was compliance with certain assessment benchmarks in the Transport Access, Parking and Servicing Code (TAPS Code).
  • The Council erred in concluding that there was compliance with certain assessment benchmarks in the Multiple Dwelling Code.
  • More generally, no properly informed decision maker would have decided to approve the development application. 

The Court dismissed the application.

Court considers the meaning of "storey" and holds that the development application requires code assessment

The Applicants alleged that a fully enclosed structure situated above the roof line of the third storey, occupying approximately 10 per cent of the total surface area of the third storey, constituted a fourth storey. The proposed fully enclosed structure has an area of 30/33m2 and 50 per cent of it is occupied by a lift shaft and stairwell.

A "storey" is defined in City Plan 2014 (City Plan) as follows:

"a. means a space within a building between floor levels, or a floor level and a ceiling or roof other than -

i. A space containing only a lift shaft, stairwell or meter room; or

ii. A space containing only a bathroom, shower room, laundry, toilet or other sanitary compartment; or

iii. A space containing only a combination of things stated in subparagraph (i) or (ii); or 

…"

The Applicants' arguments and the Court's conclusions were as follows: 

  • The Applicants argued that the 14x16m2 enclosed area external to the lift shaft and stairway is not a space that is excluded from the definition of a storey. The Court found that an exception to a "storey" is not restricted to exclusively including a lift or stairwell. In rejecting the Applicants' argument, the Court did not find anything in the City Plan to suggest that the exit of a lift or stairwell cannot be enclosed by four walls and a roof. 
  • The Applicants argued that the Second Respondent intended the enclosed area to be a separate feature since it had been referred to as a "lobby" and "unit three lobby" in the development application. In rejecting this argument, the Court held that the small size of the area and it being physically enclosed from the surrounding entertainment facility, except by a door, meant that the description of the enclosed area carried no consequence. 
  • The Applicants argued that the inclusion of the gross floor area (GFA) within the GFA Drawing that was part of the development application "…leads objectively to a presumption that it is part of a storey unless it is demonstrated to be properly excluded." (see [26]). The Court held this to be an irrelevant consideration since the City Plan makes no reference to GFA in the definition of a storey.

Court finds no unreasonableness in the Council's decision-making

As a consequence of the proposed development, a metal guard rail separating the parallel street from the footpath and surrounding properties was to be replaced with energy absorbing bollards at 1.3 metre intervals. 

The Applicants made the following submissions in respect of the Council's decision-making process about the bollards:

  • The Council's decision was unreasonable as it failed to take into account relevant considerations, being safety considerations, and took into account irrelevant considerations, being the facilitation of refuse collection. 

  • The Council's decision was substantively unreasonable in the Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1KB 223 sense because the decision to remove the metal guard rail was "…so devoid of logic that no reasonable decision maker could have made it…" and "…lacked an evident or rational justification." (at [36]). 

The Court rejected all of these arguments raised by the Applicants. The Court preferred the email evidence between the Council and its delegate, which stated that the existing metal guard rail "…provides minimal benefit, if at all, and can be removed." (see [40]) and that the replacing bollards "…will improve pedestrian safety on the footpath…" (see [39]). The Applicants could not provide any material evidence as to the effect on pedestrian safety as a consequence of replacing the metal guard rail with the bollards. 

Council's findings in respect of compliance were not in error

The Applicants also argued that no properly informed decision-maker would have decided to approve the development application having regard to Performance Outcome PO43 of the Multiple Dwelling Code and matters concerning the TAPS Code.

Performance Outcome PO43 of the Multiple Dwelling Code relevantly provides that "[d]evelopment provides refuse and recycling collection and storage facilities that…are located and managed so that adverse impacts on building occupants, neighbouring properties and the public realm are minimised". The Court favoured the evidence in correspondence between the Council and its delegate that the temporary presentation of refuse bins "…will not cause a significant adverse amenity [or safety] issue[s]…" (see [46]), and held that there was no error in the Council's decision-making.

In respect of the TAPS Code, the Applicants argued that there was not compliance with Performance Outcome PO19, which states that "[d]evelopment layout provides for services which…are wholly within the site, other than service vehicle manoeuvring areas which may overhang the verge on a minor road where use of the footpath is not adversely affected". There was evidence that some large rigid vehicles and medium rigid vehicles may extend beyond the Subject Land, however, this was likely to be infrequent and, in the case of medium rigid vehicles, car access and egress from the adjoining property was still possible. Taking these matters into consideration, the Court was not convinced that the Council's decision was "…so devoid of logic that no reasonable decision-maker could have made it…" or that the decision "…lacked an evident or rational justification." (see [36]) as argued by the Applicants. 

The Applicants' final argument was that the Council wrongly concluded that there was compliance with Performance Outcome PO19 of the TAPS Code and acting upon that mistaken belief then considered it had no option other than to approve the development application as a consequence of the operation of section 60(2)(a) of the Planning Act 2016 (Qld). The Court pointed to the two-page consideration of vehicular access in the relevant assessment report and did not accept that the Council acted upon a mistaken belief about compliance. 

Conclusion

The Applicants' application was dismissed.

 

 

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 2022.

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