Queensland planning discretion exercised in favour of an impact assessable multiple dwelling development, which was non-compliant with the planning scheme

In brief

The case of Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 concerned an appeal by Dreamline Development Corporation Pty Ltd (Dreamline) to the Planning and Environment Court of Queensland (Court) against the Brisbane City Council's (Council) decision to refuse an impact assessable development application for multiple dwellings on a site located adjacent to a train line at 1 Trudigan Street, Sunnybank (Site).
The proposed development comprises the following (Proposed Development):

• 42 units comprised of 24 townhouses and an apartment building containing 18 apartments;

• underground basement carpark providing 100 carparks.

After noting the relevant decision framework and planning discretion, as discussed in recent judgments, the Court considered whether the proposed development complied with the City Plan 2014 (City Plan) and the relevant matters submitted by Dreamline, and ultimately decided that the appeal against the Council's decision to refuse the development application for the Proposed Development ought to be allowed.

Proposed Development was compliant with significant parts of the City Plan

Before addressing the matters of non-compliance, the Court noted the following aspects of the Proposed Development that were compliant with the City Plan, which were not disputed by Dreamline and the Council:

1.  The Proposed Development was located on a "well-located site" in accordance with Overall outcome (4)(c) of the Low Density Residential Zone Code (LDRZC) of the City Plan.

2.  The Proposed Development complied with various assessment benchmarks of the Multiple Dwelling Code of the City Plan, including site cover, height, dwelling density, communal open space, deep-planting areas, maximum length of a wall, front boundary setback, rear boundary setback for the proposed townhouses, site boundary setback, and building separation to external buildings.

Court agreed with Council's submission that there was non-compliance with the City Plan

The Council argued the Proposed Development was non-compliant with the following parts of the City Plan, which resulted in a development which was too intense for a low-density development:

• Overall outcomes (4)(a) and (b) of the LDRZC, which relate to:

  • the provision of dwelling houses on appropriately sized lots and the maintenance of a low density detached housing suburban identity; and

  • providing other housing types at house scale.

• Overall outcome (5)(a) of the LDRZC, which relates to the distinctive subtropical character of low rise, low density buildings.

• Overall outcomes (2)(e) and (g) of the Multiple Dwelling Code, which relate to the bulk, scale, form, and intensity of development and a lower density form.

• Performance outcome PO52 of the Multiple Dwelling Code, which is concerned with the relationship of the development with the lower intensity residential character of the Low Density Residential Zone.

The Court considered the non-compliance of the Proposed Development and determined that there was non-compliance with the following:

• Overall outcome (4)(b) of the LDRZC, as there was not sufficient evidence that the Proposed Development was at a "house scale".

• Overall outcome (5)(a) of the LDRZC and Overall outcomes (2)(e) and (g), and Performance outcome PO52 of the Multiple Dwelling Code, as the Proposed Development did not have a subtropical character of a low rise, low density building.

Dreamline relied on three relevant matters in support of the Proposed Development

Dreamline raised the following three relevant matters in support of the Proposed Development:

1.  The high degree of compliance with the quantitative standards of the City Plan.

2.  That the Proposed Development would deliver appropriately located infill development.

3.  The absence of off-site adverse amenity impacts.

In relation to the first relevant matter relied on by Dreamline, the Court found that the matter was relevant to determining whether the Proposed Development ought to be approved, however, that the compliance with the City Plan was not enough, of itself, to warrant approval of the Proposed Development.

After considering expert evidence, the Court also accepted the second and third relevant matters relied upon by Dreamline as relevant matters which were in support of the Proposed Development.

Court exercised planning discretion in favour of approval

The Court, in exercising its planning discretion, noted the importance of residential density as a planning tool, but went on to state the following (at [89] to [90]):

"…the subject land is well-located to provide easy access to high frequency transport, schools, essential services, community facilities, employment and goods and services…Although the proposed development is of a density higher than that planned under City Plan, it does not offend the broader planning goals that underpin allocation of land to the Low density residential zone."

Conclusion

The Court held that the appeal against the decision of the Council to refuse the Proposed Development be allowed as, on balance, the lack of offence to the broader planning goals and the relevant matters justify the approval of the Proposed Development.