In brief

The case of Cheung & Ors v Brisbane City Council & Ors [2021] QPEC 39 concerned a determination of consolidated submitter appeals to the Planning and Environment Court of Queensland (Court) against a decision by the Brisbane City Council (Council) to approve a development application for a material change of use for multiple dwellings on land located at Ascot. 

The submitter appeals by a number of residents of Albion and Ascot (Appellants) contended that the proposed development was not acceptable when assessed against the relevant assessment benchmarks of the Brisbane City Plan 2014 (Version 8) (City Plan) and other relevant matters under section 45(5) to section 45(8) of the Planning Act 2016 (Qld)

The issues for the Court to determine were as follows:

  • Whether the proposed development complied with the relevant assessment benchmarks.

  • Whether there were relevant matters in support of approving the proposed development. 

  • Whether in the exercise of the Court's planning discretion the development application for the proposed development should be approved. 

The Court dismissed the appeal and upheld the Council’s decision to approve the proposed development.

Background 

The subject land is in the Low-Medium Density Residential Zone under the City Plan.

The proposed development was for multiple dwellings in three buildings of two to three storeys. The proposed buildings included balconies on the northern and southern sides. The northern side of the proposed development interfaces with Highlands Street, where the Appellants either reside or have commercial interests. The spacing between buildings one and two, and two and three, was three and five metres respectively.

The subject land is steeply sloped, falling 25 metres across its diameter with steep escarpments. The heights of proposed buildings one, two, and three were 9.7 metres, 14.5 metres, and 16 metres respectively. The subject land is adjacent to an industrial development of seven storeys in height. The surrounding area does not have a uniform street pattern as it includes improvements of mixed purposes such as residential, industrial, and commercial development. These developments vary greatly in scale and lot size.

The proposed development is impact assessable and was therefore required to be assessed against the provisions of the City Plan as a whole.

The Appellants argued that the proposed development did not comply with the assessment benchmarks in the City Plan with respect to bulk, scale, form, intensity, height, amenity, and overdevelopment.

Bulk, scale, form, and intensity

Whether the proposed development results in appropriate bulk, scale, form, and intensity was assessed by the Court against Overall Outcome 2(e) and Performance Outcomes PO5, PO8, and PO15 of the Multiple Dwelling Code. The general focus of these assessment benchmarks was whether the proposed development "fits in" with the existing and intended character of the area. 

The Appellants argued that the proposed development did not comply with Overall Outcome 2(e) and Performance Outcomes PO5, PO8, and PO15 for the following reasons:

  • The proposed development did not satisfy the purpose of the Multiple Dwelling Code because it did not satisfy Overall Outcome 2(e) in that the bulk, scale, form, and intensity of the proposed development was inconsistent with the intended neighbourhood structure. 

  • The form and character of the proposed development did not satisfy Performance Outcomes PO5 and PO15 because it was not consistent with the local area and had insufficient articulation between the proposed buildings.

  • The scale of the proposed development would impede the visual amenity of the Appellants' enjoyment of land and privacy and did not satisfy Performance Outcome PO8. 

 The Court did not accept the Appellants' arguments for the following reasons:

  • The purpose of the Multiple Dwelling Code was achieved through its Overall Outcomes. Whether the Overall Outcomes were satisfied required an "evaluative judgment" (at [69]) and was one on which reasonable minds might differ. 

  • Despite some non-compliance with the relevant Acceptable Outcomes, the proposed development satisfied the Performance Outcomes in the context of the surrounding character and topology of the subject land.

Height

The issue of height overlapped with the issues of bulk, scale, form, and intensity. The specific issue for the Court's determination was whether the height of the proposed development was appropriate when assessed against the Albion Neighbourhood Plan Code, Low-Medium Residential Zone Code, and the Multiple Dwelling Code. 

The Appellants argued that the height of the proposed development was substantially over what was acceptable and the design of the proposed development was not supported by the City Plan.

The Court did not accept the Appellants' argument for the following reasons:

  • The height of the proposed development was mostly 9.5 metres when measured above ground, and only 8 per cent of the site cover was higher than 9.5 metres. 

  • Where the height of the proposed development exceeded 9.5 metres, it was in response to the angled topography of the subject land and not a vertical stepping of the buildings. 

  • The undercroft of the proposed buildings was similar in character to two of the nearby developments. The areas adjacent to the undercroft of the buildings with a height exceedance were to be screened by mature vegetation.

The Court stated that the community expectations of the development of the subject land were to be informed relevantly by the City Plan and existing developments "there on the ground" (at [87]). The Court found that the proposed development satisfied the relevant assessment benchmarks in respect of community expectations because the City Plan contemplated developments of the height proposed, which was evidenced by the existing developments and the City Plan provisions themselves.

Amenity

The amenity impacts of the proposed development were assessed against the provisions of the Multiple Dwelling Code and the Low-Medium Density Residential Zone Code. The loss of visual amenity was the most significant concern to the Appellants. The Co-Respondent conceded that the proposed development would "…substantially, if not entirely, obstruct views from properties [of the Appellants] to the north" (at [125]). 

The Appellants argued that the relevant provisions of the Multiple Dwelling Code and the Low-Medium Density Residential Zone Code placed a high level of importance on amenity concerns for the local area. The Appellants' described their amenity concerns for the local area as being as follows:

  • Impacts on privacy.

  • Interference with access to sunlight or overshadowing and breezes.

  • Noise, emissions, and odours from the communal outdoor area, the car park, the plant and equipment, and the transformer.

  • Lighting from the communal outdoor area and vehicles.

The Court was sympathetic to the concerns of the Appellants and that the concept of amenity was inclusive of tangible and intangible factors. However, the Court held that a determination in respect of amenity was to be made in the context of reasonable expectations and not the abstract. In assessing the amenity impacts, the Court found as follows:

  • The issue of amenity cannot be elevated or given greater importance over other considerations. Instead, the City Plan must be considered as a whole and the context in which it appears.

  • The Court could not give weight to any evidence that was not expert opinion evidence and held that no common law right to preserve a view exists. The claims by the Appellants were to be assessed against the reasonable expectations of the community, which required a determination of whether the proposed development was within "[the] system of planning controls" (at [121]).

  • The Court was only to assess what was proposed and was not to determine if an alternative proposal was more appropriate. 

  • All uses of land would have an impact on neighbouring amenity and it was not a question of whether the amenity was degraded, but whether that degradation was unreasonable. The Court accepted that the proposed development had taken satisfactory measures to reduce the amenity impacts and was not otherwise out of character for the area.

The Court concluded that the amenity impacts were within reasonable expectations and that the relevant assessment benchmarks in the City Plan were satisfied.

Overdevelopment 

The issue of any overdevelopment was assessed by the Court against Overall Outcome 5 of the Low-Medium Residential Zone Code, and Overall Outcome 2 and Performance Outcomes PO5, PO8, and PO27 of the Multiple Dwelling Code. The Court preferred the expert evidence from the Council over that of the Appellants for the following reasons:

  • The Appellants’ expert evidence did not correlate with any relevant consideration under the City Plan and was not assessed against the corresponding Performance Outcomes.

  • The Council’s expert evidence focused on the relevant assessment benchmarks identified by the parties. 

In finding that the proposed development did not represent an overdevelopment when assessed against the Overall Outcomes of the Low-Medium Residential Zone Code and the Multiple Dwelling Code, the Court found that:

  • The height exceedance of the proposed development was in response to the topographical constraints and was a feature of other developments in the area. 

  • The proposed development had sufficient spacing from neighbouring buildings with no material consequences from non-compliant setbacks. 

  • Deep planting would soften the bulk appearance of the proposed development and screen the undercrofts. 

  • The proposed development adequately complied with the Acceptable Outcomes related to site cover, landscaping, and open spaces. 

Court finds that relevant matters supported the approval of the proposed development and exercises its planning discretion

The Appellants did not raise any adverse matters in the public interest other than the material non-compliance of the proposed development with the assessment benchmarks. The Co-Respondent and Co-Respondent by Election identified 10 relevant matters that were summarised by the Court by answering three questions.

Is the land an appropriate location for multiple dwellings?

The Court agreed with the town planners that the subject land is an appropriate site for multiple dwellings. 

Is the proposed development an appropriate design outcome for the subject land?

The Court rejected the Appellants' argument that the relevant matters were not made out because of the proposed development’s non-compliance with the assessment benchmarks of the City Plan. Instead, the Court held that because the Court had determined that the proposed development had met the relevant assessment benchmarks under the City Plan, the answer to this question is "yes". 

Is there an economic need for the proposed development? 

Under section 45(5)(b) of the Planning Act 2016 (Qld), need is an example of a relevant matter. The Court agreed with the uncontested evidence submitted by the Co-Respondent and Co-Respondent by Election that there was a planning, community, and economic need for the proposed development and answered "yes" to this question. 

Conclusion

The consolidated submitter appeals were dismissed and the Council's decision to approve the proposed development was upheld.

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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