In brief

The case of Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors [2022] QPEC 8 concerned an appeal to the Planning and Environment Court of Queensland (Court) by Southway Services No. 2 Pty Ltd (Appellant) against the decision of the Brisbane City Council (Council) to refuse the Appellant's development application.

The development application was made in 2017 under the Sustainable Planning Act 2009 (Qld) (SPA), but was not decided before the SPA was repealed. As such, under section 288 of the Planning Act 2016 (Qld) (PA), the Council assessed and decided the development application under the SPA. The resultant decision notice was taken to have been given under the PA and the appeal was brought under the PA in accordance with sections 229 and 311(4) of the PA.

The development application related to a 68,910 square metre parcel of land that was used for a quarry (Subject Land). The development application was for the following:

  1. A preliminary approval under section 241 of the SPA for a material change of use for accommodation activities, being dual occupancy, dwelling house, multiple dwelling, residential care facility, retirement facility, and rooming accommodation (Preliminary Approval). 

  2. A preliminary approval under section 242 of the SPA to vary the effect of the Brisbane City Plan 2014 (Version 6) (City Plan) by changing the level of assessment for future development applications for accommodation activities such that public notification would not be required, being a variation request under the PA (Variation Request) the approval of which would be a variation approval (Variation Approval). 

The development application was met with resistance from local residents, and the Council refused the development application on the ground that industrial land was to be preserved. 

Because both parties disagreed over the characterisation of the development application, the Court firstly determined the nature of the proposed development and how the development application ought to be characterised. 

The main issue for the Court to consider was whether "accommodation activities" was an appropriate use on the Subject Land. The Court held that "accommodation activities" was not appropriate for the Subject Land and refused the appeal for the following reasons:

  • The proposed development was contrary to the planning intentions of the City Plan. 

  • There was a need for the Subject Land to be retained for low impact industry uses. 

  • The absence of substantive detail available to submitters meant that any justifiable need for the proposed development was outweighed by the proposed development's material non-compliance with the City Plan. 

Nature and characterisation of the proposed development could not be viewed as providing a range of accommodation

The Appellant submitted that the proposed development would create five precincts across the Subject Land, including townhomes, apartments for students, a residential aged care facility, a retirement facility and a recreational area. The Appellant argued that the proposed development would provide a wide range of accommodation.

The Court rejected the Appellant's characterisation of the proposed development and agreed with the Council's characterisation that the proposed development had no commitment to building footprints, layouts, uses, development intensity or density, or the arrangement of buildings for the following reasons:

  • The information available to submitters did not guarantee a range of accommodation.

  • The Variation Request could be interpreted as facilitating the development of a range of accommodation, but also equally facilitating the development of only multiple dwellings with no provisions for aged care, retirees, or students.

The Court relied on the information that was available to submitters, with some keys statements within the information being as follows (emphasis omitted):

  • "'…[A] preliminary approval' does not mean that all will be applied for or constructed onsite.

  • "[The development application] does not include the approval of any specific buildings or locations of buildings..."

  • "[A] mix of residential uses potentially comprising retirement, or apartment living options, with the anticipated mix yet to be refined."

The Court held that there was no guarantee that the proposed development would incorporate any residential care facility or retirement facility and therefore the development application could not be characterised as including a residential care facility or retirement facility. 

An approval of the Variation Request would not reflect the strategic framework goals if used to assess future proposed development

The Court had to determine whether to approve or refuse the Variation Request. 

Section 61(2) of the PA relevantly states as follows:

"When assessing the variation request, the assessment manager must consider—

  • the result of the assessment of that part of the development application that is not the variation request; and

  • the consistency of the variations sought with the rest of the local planning instrument that is sought to be varied; and

  • the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and

  • any other matter prescribed by regulation."

The Court considered each element under section 61(2) of the PA in turn. 

In its consideration of section 61(2)(a) of the PA, the Court held that the proposed range of residential uses on the Subject Land was contrary to the City Plan for the following reasons: 

  • The proposed development could not be reliably assessed against the assessment benchmarks of the City Plan that focus on the potential impacts of a proposed development. 

  • The acceptability of the proposed land use did not satisfy Overall Outcomes 3(a) and 3(b) of the Low Impact Industry Zone Code because the proposed development would not preserve the opportunities for low impact industry uses.

In its consideration of section 61(2)(b) of the PA, the Court held that the proposed variations sought in the Variation Request were inconsistent with the strategic framework in the City Plan for the following reasons: 

  • The location of the proposed residential land use was not located near an identified Growth Node or Selected Transport Corridor where residential growth is expected to occur. Instead, the Subject Land was mapped as part of the Suburban Living Area, which was planned to experience minimal change. 

  • The proposed variations were inconsistent with the intention to preserve opportunities for low impact industrial uses throughout the city on land in the Low Impact Industry Zone.

  • The Variation Request sought to make uses code assessable against the Low-Medium Density Residential Zone Code and the Medium Density Residential Zone Code. The Court held that the use of Subject Land was inconsistent with these codes because it does not provide a transition to low density residential areas.

The Court was not satisfied that it was in the public interest to preclude the community from making submissions with respect to future development applications under section 61(2)(c) of the PA because the lack of detail in the development application meant that there was no certainty as to the range of uses or the form and scale of the future potential development, and that there could have been no meaningful consideration by the public as to the potential impacts of the future potential development. 

The Court refused the Variation Request since all considerations under section 61(2) of the PA weighed against approval. 

Court was not satisfied that the proposed development would be constructed to respond to any identifiable need 

The Appellant submitted that there was a need for residential development on the Subject Land for the following reasons: 

  • The City Plan inherently acknowledged the need for the type of proposed residential uses.

  • There was a need for all of the proposed residential uses in the locality. 

The Court held that there was a need for the proposed residential uses for the following reasons: 

  • The proposed development would add to the choice of accommodation available and address the demand for residential aged care.

  • The characteristics and locational features of the Subject Land were appropriate for residential development. 

  • The built form of the proposed development may create density that is greater than what is encouraged in a low-density residential area, but would remain acceptable. 

However, the Court held that an approval would not result in the proposed development contended for by the Appellant and would not satisfy the need contended for by its experts for the following reasons: 

  • It was not certain that residential aged care facilities would be constructed. 

  • Expert opinion evidence from economists from both parties rejected a need for student accommodation. 

  • The Preliminary Approval would have a life span of 10 years during which other developments in that time may fulfil the need for residential aged care.

Court refuses the Preliminary Approval and the Variation Request because of material non-compliance with the City Plan

The Court held that the proposed development had material non-compliance with the City Plan regarding its amenity impacts and use of industrial land. 

The Appellant submitted that future development applications under a Variation Approval would not have any adverse character or amenity impacts. The Court rejected these submissions because the Appellant’s town planner conceded that it was not possible to assess the proposed development against the provisions in the City Plan that regulate design and built form parameters because of an absence of design detail. Further, the Court held that the final design of the proposed development could not be taken to meet each requirement of the strategic framework because future development applications would only be assessed against nominated codes stated in a Variation Approval. 

The Court agreed with the Council's submission that a decisive matter in the exercise of planning discretion was that the proposed development was contrary to the planning intention of the City Plan to facilitate and maintain the viability of industrial uses on land in the Low Impact Industry Zone. The Court held that there was a need to maintain the Subject Land as industrial land for the following reasons:

  • The Court did not accept the relevance of the Appellant’s evidence that the types of industrial uses that could be located on the Subject Land was limited because of amenity restrictions. The Court reasoned that those restrictions were consistent with the inclusion of the Subject Land in the Low Impact Industry Zone. 

  • The Court agreed with the evidence of the Council’s town planner that the Subject Land was suitable for the types of uses encouraged in the Low Impact Industry Zone.

  • Economists retained by both parties agreed that it is difficult to find new land for industrial development and that the strategic framework encourages the retention of industrial land. 

The Court held that the planning strategy to preserve industrial land was important and that the ongoing need to maintain the Subject Land for such uses outweighed the proposed need for residential development. 

Conclusion 

The appeal 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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