In brief

The case of Cox v Brisbane City Council & Anor [2022] QPEC 10 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to approve a development application for a preliminary approval for a material change of use (food and drink outlet, market, multiple dwelling, office, parking station, retirement facility, shop, and short-term accommodation) and an associated variation request (Development Application) to vary the provisions of the Brisbane City Plan 2014 (Version 12) (City Plan) in respect of land which sleeves the eastern and western sides of the Albion train station and associated rail corridor and adjoins the Albion District Centre (Subject Land).

The Development Application sought to establish a master planning framework to facilitate the development of the Subject Land, which had been under the control of Queensland Rail, with transit oriented development across four precincts, numbered 2 to 5. The submitter only opposed the Development Application with respect to precincts 2 and 4.

The Court considered the following central issues:

  1. Whether the uses proposed in precincts 2 and 4 comply with the City Plan.

  2. Whether the height, bulk, scale, and intensity of the building envelopes proposed in precincts 2 and 4 comply with the City Plan.

  3. Whether there is a need for the type and scale of development proposed in precincts 2 and 4.

  4. Whether a variation approval in respect of precincts 2 and 4 would have an adverse effect on future submission rights.

The Court found that the proposed development is meritorious and ought to be approved with regard to the acceptability and intensity of the proposed uses in precincts 2 and 4 according to the City Plan's Strategic Framework and applicable neighbourhood plans, and the capacity to appropriately manage any future adverse impacts on amenity and character with conditions.

Court finds that the proposed uses in precincts 2 and 4 are consistent with the Strategic Framework and applicable neighbourhood plans having regard to the relevant version of the City Plan that includes amendments made in May 2020

The Court found that the proposed uses in precincts 2 and 4 are acceptable uses and of an acceptable intensity under the City Plan for the following reasons:

  1. The proposed uses for each precinct are inconsistent with the intent and development expectations for the Character residential zone and Low density residential zone with respect to precinct 2, and the Special purpose (Transport industry) zone with respect to precinct 4. Although non-compliance of this kind is a matter that would ordinarily attract considerable weight in the exercise of the planning discretion, the Court found that the proposed uses' inconsistency with the relevant zones under the City Plan did little to advance the refusal case in circumstances where the zoning of the Subject Land is unsound and has been overtaken by events for the following reasons:

    (a) The Subject Land which is included within precinct 4 is surplus to Queensland Rail's requirements and is to be given over to an urban purpose which is inconsistent with the intent of the Special purpose (Transport industry) zone. 

    (b) Overall Outcome 4(d) of the Special purpose (Transport industry) zone anticipates that the underlying special purpose of the Subject Land may cease and that the Subject Land can be re-used for an alternative purpose, provided that the use occurs in an integrated manner.

    (c) The underlying reason for the Character residential zone no longer exists and cannot be replaced as the residential dwellings, which were located within precinct 2 and that the Character residential zone was intended to protect, were demolished some three to four years after the City Plan took effect.

    (d) The Subject Land included within precinct 2 is not suitable for low density residential development because it is surrounded on three sides by heavy infrastructure.

    (e) The Strategic Framework and neighbourhood plans, being the Lutwyche Road Corridor Neighbourhood Plan (LRCNPA) with respect to precinct 2 and the Clayfield-Wooloowin District Neighbourhood Plan (CWDNPA) with respect to precinct 4, which prevail over the zones according to section 1.5 of the City Plan, provide a reasonable expectation that development on the Subject Land may be more intense than anticipated in the two residential zones.

  2. Transit oriented development, which is development that promotes growth along transport corridors at identified nodes, is supported by the Strategic Framework and the codes for the LRCNPA and CWDNPA, including amendments made in May 2020 which reflect a material shift in forward planning.

  3. The town planning evidence established that the Subject Land's physical relationship to the recognised transport node at Albion meant the Subject Land is inherently suitable for accommodating future growth in a Growth Node along a high frequency public transport corridor.

  4. The City Plan demonstrates that there is considerable public interest in transit oriented development which optimises public investment in rail infrastructure by clustering residential and employment uses around a high frequency train station and District Centre. The Court found that the evidence established that this public benefit could be achieved by the proposed development in circumstances where impacts on character and amenity can be conditioned and managed appropriately in the context of future development. 

  5. The proposed development will contribute to the ongoing urban renewal and intensification of the Albion District Centre and surrounding area to facilitate the optimisation of important public infrastructure.

Court finds that the non-compliances with respect to the height of development in precincts 2 and 4 did not warrant refusal of the Development Application

The submitter argued that the height and scale of the proposed development in precinct 2 (up to 15 storeys) and precinct 4 (up to 8 storeys) will, having regard to the local context, have an unacceptable impact on the character and amenity of the locality, visually dominate the area, and provide insufficient height transitions.

The Court found that the development proposed in precinct 2 would not have an unacceptable impact on the visual amenity or character of the locality because the expert evidence established that the proposed development would achieve an appropriate building height transition and there will be significant separation between the proposed development in precinct 2 and the surrounding area.

With respect to precinct 4, the Court accepted that an "…unbroken podium structure for the length of the precinct would be overbearing, and present as a wall of development…" (at [159]). However, the Court found that this was a matter that would be appropriately managed by the proposed conditions which would require, for any podium form that exceeds 20 metres in length, recessed areas of deep planting zones every 20 or 40 metres of street frontage.

Court finds that the issue of need was not determinative

The Court found that the issue of need is not decisive in this appeal for the following reasons:

  1. The Subject Land is well located to provide transit orientated development that has the potential to improve the community's well-being in circumstances where the proposed development would not have any unacceptable impacts on character or amenity.

  2. The proposed development represents an efficient use of the land in economic terms.

  3. The City Plan recognises that the public interest and community well-being will be well served through the intensification of development in Growth Nodes on Selected Transport Corridors, such as that proposed by the Development Application.

  4. The City Plan does not require the demonstration of need to develop the Subject Land.

  5. Amendments made to the City Plan in May 2020 reflect the proposition that the Council accepts that the public interest is better served by more intense urban development on the Subject Land than the medium density residential development contemplated by Overall Outcome 7 of the LRCNPA code.

Court finds that the proposed variations to the City Plan will not unacceptably cut across future rights of submission

The submitter argued that the variation request ought to be refused because future submitter rights would be affected, because the variations sought included a change to the level of assessment for a material change of use for one of the uses included within a prescribed building envelope from impact assessable to code assessable. This variation would remove the right to make properly made submissions and accrue an appeal right. 

The Court was satisfied that the variations sought by the Development Application will not unacceptably cut across future rights of submission in a manner that would warrant refusal of the Development Application, as the community had been given ample opportunity to examine the proposed development and raise planning issues of concern by way of submissions during public notification of the Development Application and community consultation, which went over and above that required by the Planning Act 2016 (Qld).

Conclusion

The Court was satisfied that the Development Application ought to be approved subject to conditions and adjourned the appeal to allow the parties to agree on final orders that disposed of the appeal in a manner consistent with the Court's judgment.

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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