In brief

The case of G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 9 concerned an appeal to the Planning and Environment Court of Queensland (Court) by G R Construction and Development Pty Ltd (Applicant) against the decision of the Brisbane City Council (Council) to refuse the Applicant's development application for a development permit for reconfiguring a lot into 24 lots, and a preliminary approval for operational works for filling and excavation (Development Application) to facilitate the creation of 12 residential lots, a drainage reserve, an access easement, and a road reserve on land at Hemmant (Subject Land).

The Council refused the Development Application because the proposed development was non-compliant with the planning strategies of the Brisbane City Plan 2014 (Version 15) (City Plan). The Court assessed the Development Application against the relevant assessment benchmarks and planning intent of the City Plan and allowed the appeal for the following reasons:

  • The proposed development did not result in adverse amenity impacts, reverse amenity impacts, or change the character of the area.

  • The proposed development ensured existing and future industry uses on the adjacent industry zoned land were adequately protected.

  • The applicable zone, being the Rural Residential Zone, was reflective of several planning strategies in the City Plan.

Background

The Council argued that the Development Application did not comply with the assessment benchmarks concerned with the preservation of amenity features and industrial land use in the Strategic Framework, Rural Residential Zone Code, Hemmant-Lytton Neighbourhood Plan Code, and the Subdivision Code of the City Plan.

Court finds that the proposed development will not have an unacceptable impact on the character and visual amenity of the area

The Council argued that the proposed development would facilitate residential development at a density that would result in unacceptable visual amenity impacts on the residents that directly interface with the proposed development, people travelling on the adjacent street, and users of a park to the west of the Subject Land. 

The Court considered the assessment benchmarks relied upon by the Council in the Strategic Framework, Rural Residential Zone Code, Hemmant-Lytton Neighbourhood Plan Code, and the Subdivision Code of the City Plan and approached its consideration as follows:

  1. Will the proposed development deliver an amenity outcome that is anticipated by the City Plan?

  2. Will the proposed development preserve the scenic amenity and character of the Subject Land?

  3. Will the proposed development provide a high level of residential amenity?

  4. Will the proposed development maintain the character of the local area?

Will the proposed development deliver an amenity outcome that is anticipated by the City Plan?

The size of the proposed lots did not accord with the planned uses and development intensity stated in the Rural Residential Zone Code and Hemmant-Lytton Neighbourhood Plan Code. The Court therefore held that the proposed development would not deliver an amenity outcome anticipated by the City Plan (at [51]).

Will the proposed development preserve the scenic amenity and character of the Subject Land?

The Court first considered the attributes of the Subject Land. The Subject Land climbs gradually from the recreation reserve adjacent to Bulimba Creek at its western end to a high-point where an existing house is located. The relevant experts opined that the Subject Land has a rural residential character, with sporadic coverage of native trees, shrubs, and regrowth vegetation, and an area of low grass.

The Council argued that the proposed development would not preserve the scenic amenity and topographical features of the Subject Land because a 50-metre wide band of the rural residential character would be removed. The Court held that almost half of the Subject Land was non-compliant with the assessment benchmarks for low density residential development because the scale of the proposed residential activities was far greater than what would be reasonably anticipated to meaningfully preserve the scenic amenity of the Subject Land (at [63]).

Will the proposed development provide a high level of residential amenity?

The visual amenity experts opined that with the imposition of appropriate conditions the future residents of the proposed development would enjoy a high standard of visual amenity. The Court agreed and held that the proposed development could be conditioned to comply with the assessment benchmarks in the City Plan in respect of visual amenity (at [67]).

Will the proposed development maintain the character of the local area?

The Court rejected the Council's town planner's use of the zoning map to demonstrate that the proposed development was in contrast to the openness of a semi-rural area because "…the average person does not perceive the existing character by reference to colours on a map" (at [91]).

The Court held that the perspective of what the average person would perceive was that "[t]he character of a locality is the aggregate impression formed having regard to the individual features and traits of the development and the natural environment in the locality" (at [91]).

Under that lens, the Court held that the proposed development satisfied the character outcomes of the assessment benchmarks in the City Plan for the following reasons:

  • The Court accepted the evidence of the Applicant's town planning expert that the proposed development could be easily screened from view from existing residences by using the topographical attributes of the Subject Land and hilltop tree canopies (at [84]).

  • The loss of vegetation caused by the proposed development did not impact the character of the surrounding area because the change in visual amenity was limited to that which would be experienced if an existing resident stood at a particular point in the backyard of their property and looked over a 1.7 metre-high fence (at [100]). The Court held that this change in visual amenity was not representative of how the average person would perceive the character of the locality (see [84] to [100]).

  • The Court held that the evidence submitted by the Council's town planning expert that there would be a material reduction in the open landscape values of the surrounding area was an overstatement (at [103]).

Court finds that the proposed development will not encroach on industrial uses and future residents will experience appropriate acoustic amenity

The Council argued that the proposed development would be impacted by nearby industrial development and would risk an unreasonable restriction on the continuation of existing industrial activity and the establishment of future industrial activity.

The Court approached its consideration in respect of the Council's position in two parts.

All residents will experience appropriate levels of acoustic amenity

The Applicant's acoustic engineer provided modelling based on monitored noise levels at the Subject Land which demonstrated predicted noise levels using a range of acoustic treatments. The Applicant argued that the acoustic engineer's evidence supported its position that compliance with the City Plan's noise standards could be achieved by common acoustic treatments.

The Court accepted the evidence of the Applicant's acoustic engineer that approving the proposed development would result in an improvement to the acoustic amenity of existing residents and the Court was satisfied "…that future residents of the proposed development will enjoy appropriate acoustic amenity" (at [126]).

Existing and future industry was adequately protected from interfering encroachment

The Council argued that the proposed development would cause unacceptable levels of reverse amenity impacts on future and existing industry because the industry uses were conducted pursuant to development approvals that have no or limited noise conditions. The Council argued that there were no restrictions on the industry uses to operate at greater noise levels or extended hours of operation.

The Court rejected the Council's argument and held that the proposed development would not result in any greater reverse amenity constraint upon lawful industrial activity than that which presently existed (at [145]). The Court's reasons were as follows:

  • The fact that the proposed development was outside of the Industrial Amenity Overlay Code Zone was a strong indication that the proposed development was sufficiently distanced from the industrial land in the General Industry A Zone (at [137]).

  • The acoustic amenity experts agreed that existing residents would enjoy improved acoustic amenity if the proposed development proceeded (at [139]).

  • The constraint placed upon existing industrial uses would not be increased by the proposed development because there were already sensitive uses closer to the industrial area than that of the proposed development (see [139] to [141] and [145]).

  • The Court accepted the Applicant's submissions that the prospect of an increase in the intensity of the existing industrial uses was "hypothetical, speculative and unlikely" (see [142] to [143]).

  • The Court did not have the benefit of the development approvals for the existing industrial uses and any material increase in the intensity or scale of those industrial uses would likely be a material change of use for which a new development permit may be required (at [144]).

Court finds that approving the Development Application was not ad hoc land use planning

The Council argued that a decision to approve the Development Application and thereby allocate the Subject Land to the future supply of urban residential development, rather than rural residential development, would intrude on the Council's role as the planning authority.

The Court rejected the Council's argument and held that a decision to approve the Development Application would not be determinative of future land developments under the Rural Residential Zone Code and would not be an ad hoc approach to land use planning (see [170] to [173]).

The Court's reasoning was based on the accepted facts that more than half of the Subject Land would be retained for a use consistent with the Rural Residential Zone Code and the specific attributes of the proposed development.

Court finds that relevant matters supported approval of the Development Application and exercised its planning discretion

The Court held that the evidence of the Applicant's economist supported a need for the proposed development which would improve the ease, comfort, convenience, and efficient lifestyle of the community, which was a relevant matter supporting an approval of the Development Application.

The Court agreed with the Applicant's concession that the proposed development did not satisfy some relevant assessment benchmarks in the City Plan because the proposed development was for low density residential development in a Rural Residential Zone where land is to be used for rural residential purposes. The Court was satisfied, however, that the proposed development did not offend the planning rationale for the Rural Residential Zone because of the Court's findings in respect of amenity impacts, the appropriate separation from industry, and the other relevant matters supporting an approval of the proposed development.

Conclusion

The appeal was allowed, and the Development Application was remitted to the Council to issue a decision notice approving the Development Application subject to lawful conditions.

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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