Reconfiguring a lot into three lots in Brisbane's character residential zone approved on appeal

In brief

The case of CSR SPV 1 Pty Ltd & Anor v Brisbane City Council [2021] QPEC 35 concerned an appeal to the Planning and Environment Court of Queensland (P&E Court) against a decision of the Brisbane City Council (Council) to refuse a code assessable development application for a development permit for reconfiguring a lot (one lot into three lots) on land located in Gaythorne, Queensland.

The Court considered the following issues in the context of the Character Residential Zone Code (Character Code) and Subdivision Code of the City Plan 2014 version 19 (Planning Scheme) (see [15]):

"1. Whether the proposed development provides appropriately sized and configured lots that are consistent with the outcomes intended for the site, the immediate area and the Character residential zoned land in the locality;

2. Whether the proposed lots will accommodate dwelling houses that are of an appropriate form, scale and traditional building character, will reinforce the distinctive subtropical character of low rise buildings in green landscaped areas and reinforce and complement the traditional building character of the locality; 

3. What weight, if any, should be given to the amendment to the planning scheme…in version 20; 

4. Whether discretionary matters justify approving the proposed development pursuant to section 60(2) of the [Planning Act 2016], in the event of non-compliance with assessment benchmarks."

The Court allowed the appeal subject to the imposition of lawful conditions for the reasons that the proposed development complies with the relevant assessment benchmarks in that the proposed lots are appropriately sized and configured and able to accommodate dwelling houses of an appropriate form, scale, and traditional building character, which complement the traditional building character of the locality (at [20]).

The Court held that in the circumstances where the proposed development complies with the relevant assessment benchmarks in force at the time the development application was properly made and is consistent with the mixed character of the locality, which includes similarly configured lots to the proposed development, it was inappropriate to give weight to an amendment in version 20 of the Planning Scheme that specified minimum size and dimension requirements for land in the Low Density Residential Zone and Character Residential Zone (at [19]).

Subject Land

The Subject Land is 1,454 m², regular in shape, and has a 30-metre street frontage to Pendine Street (at [3]). The rear portion of the Subject Land is within the Low Density Residential Zone and the front portion is within the Character Residential Zone (at [4]).

The Subject Land is relevantly surrounded by the following:

• Land in the Low Density Residential Zone, which is subdivided into lots with frontages of approximately 10 metres, three of which have rear boundaries adjoining the Subject Land.

• Land in the Character Residential Zone, which is subdivided into lots that have been developed for pre-1946 dwelling houses that for the most part have a frontage width of 15-metres or greater and in the case of those lots with a frontage of less than 15-metres width are developed for pre-1946 dwelling houses that have the "distinctive subtropical character" of a "Queenslander" house surrounded by green landscaping (at [5]).

The proposed development is for the creation of three vacant residential lots. One lot is 492 m² and the other two are each 481 m² in size. Each of the three lots are proposed with a 10-metre wide frontage to Pendine Street.

Proposed development complies with the Planning Scheme

The Council submitted that the proposed development ought to be refused for the following reasons:

• The surrounding area within the Character Residential Zone comprises lots with 15-metre wide frontages.

• The proposed development does not have the requisite setbacks required under the Queensland Development Code to accommodate a distinctive subtropical character in green landscaped areas.

• In those circumstances, any dwelling house on the Subject Land will not complement land within the Character Residential Zone that seeks to reinforce traditional building character built in 1946 or earlier.

The Court relevantly held as follows in respect of the proposed development (see [16] to [18]):

• The proposed development complies with the quantitative requirements that the proposed lots be a minimum of 450 m² and the proposed lots "…maintain a block pattern that accommodates traditional backyards and large trees".

• The Council's submissions ought not be accepted because there are existing pre-1946 dwelling houses with only a 10-metre wide frontage which appear to satisfy the Character Code, and there are no pre-1946 dwelling houses with primary frontage to Pendine Street.

• The proposed development responds to the pattern of development in the locality.

• The front part of any dwelling house to be built on the Subject Land is required to satisfy the requirements of the Traditional Building Character (Design) Overlay Code, which has the purpose of ensuring development strengthens traditional building character.

• The proposed development complies with the relevant assessment benchmarks in the Planning Scheme and the Applicant has discharged its onus.

Conclusion

The Court held that the proposed development complied with the relevant assessment benchmarks in that it is appropriately sized and configured to accommodate dwelling houses of an appropriate form, scale, and traditional building character and is consistent with the mixed character of the locality.