Planning and Environment Court of Queensland gives material weight to a later planning scheme and refuses a development application for a preliminary approval for mixed use development

In brief

The case of Envisage Development Management Pty Ltd v Redland City Council [2022] QPEC 57 concerned an appeal to the Planning and Environment Court of Queensland (Court) against conditions imposed by the Redland City Council (Council) on a preliminary approval for a material change of use for mixed use development comprising an apartment building, tourist accommodation, refreshment establishment, and shop (Proposed Development) on land located at 4 Harbourview Court and 144A Shore Street West, Cleveland (Land), which adjoins a railway station.

The planning scheme in effect at the time the development application was properly made was the Redlands Planning Scheme (version 7) (Planning Scheme) and the planning scheme in effect at the time the appeal was heard was the Redland City Plan 2018 (version 6) (New Planning Scheme).

The substantial issues in the appeal were the following:

1. Whether the Proposed Development has unacceptable traffic impacts.

2. Whether the Proposed Development provides mixed use development.

3. Whether the Proposed Development provides active frontages.

4. The weight to be given to the New Planning Scheme.

The Court held that whilst most of the traffic issues could be resolved by the conditions proposed by the Applicant, the Proposed Development fails to provide the mixed used development envisaged by the Planning Scheme and active frontages. The Court gave material weight to the New Planning Scheme, which also included high-level requirements for mixed use development and active frontages.

The Court held that the exercise of its discretion favours a refusal of the development application.

Court finds that the Proposed Development has unacceptable traffic impacts

The Proposed Development on Lot 2 of the Land includes 143 commuter car parks with two vehicle accesses on the ground level of the proposed apartment building, as well as 124 car parks on the podium level. The proposed bin refuge was also located on the ground level (at [7]).

There were three issues in the appeal that related to traffic impacts, being the provision of on-site car parking, impact on on-street parking, and the adequacy of the circulation area between car parking bays and the accommodation of service vehicles. The Court's findings in respect of those issues were as follows:

1. On-site car parking – The Court found that the proposed car parking is inadequate having regard to the considerations relating to off-street car parking in Specific Outcome S1(1)(b) of the Access and Parking Code (A&P Code) and that there is a shortfall of 38 car spaces adopting Probable Solution P1(1)(a) of the A&P Code, which refers to the minimum car parking requirements in Table 1 of the A&P Code (see [63] to [65] and [88]). The Court accepted expert evidence that the Proposed Development does not provide parking for visitors or the café use and will have adverse impacts on the capacity of the nearby railway commuter car park and on-street parking. The Court also accepted that the lack of adequate on-site car parking and the consequential impact on off-site car parking indicate that the Proposed Development is an over-development of the Land (at [87]).

2. On-street car parking – The Proposed Development includes the establishment of a second driveway and cross-over for the residential use, which results in the loss of two on-street short-duration car parks which are highly utilised for dropping-off and picking-up railway patrons (at [93]). The Court was not satisfied that the Applicant had established that the two driveways improve ingress and egress of the Proposed Development, internal traffic operation, and pedestrian safety as required by Overall Outcome (2)(a)(ii), Specific Outcome S3.1(1)(g), and Specific Outcome S3.1(2) of the A&P Code (at [99]).

3. Circulation and service vehicles – The Court held that the failure to provide a dedicated waste vehicle standing bay is inconsistent with Overall Outcomes and Specific Outcomes in the Apartment Building Code and A&P Code, as well as the identical requirements in the New Planning Scheme (at [100]). The Court accepted that the circulation and the service vehicle issues generated by the Proposed Development did not warrant its refusal and could likely be resolved by a redesign, but nevertheless reinforced that the Proposed Development is an over-development of the Land (see [107] to [109]).

Court finds that the Proposed Development is not a mixed use development

Whilst the Council refused to grant a development permit for the Proposed Development in June 2021, the Applicant submitted that the Court should derive comfort from the Council's decision to issue the preliminary approval as an indication that the Council accepts the mix of uses comprising the Proposed Development.

The Court rejected the Applicant’s argument for the following reasons:

1. The Council’s prior decisions are not relevant to the Court’s decision as the appeal is a hearing anew. Thus, the Court's task is not to determine the correctness of the Council’s decision but rather to make a decision based on the evidence before the Court (at [121]).

2. The Council's prior decisions related to a differently designed development and accordingly are not useful guidance for the Court and do not demonstrate that the Council has determined that the Proposed Development is mixed use (at [122]).

The Court held that the definition of "mixed use" in the administrative terms in schedule 3 of part 9 of the Planning Scheme "…envisages integration of residential activities and tourist accommodation with commercial, retail or industry activities" (at [131]). The Court was not satisfied that the Proposed Development complies with the definition of "mixed use" or the relevant Overall Outcomes and Specific Outcomes in the Major Centre Zone Code of the Planning Scheme (MC Zone Code), because the shop component on Lot 3 of the Land is not integrated in a physical and design sense with the two accommodation towers on Lot 2 of the Land and does not encourage mixed use development (see [131] to [133]).

The New Planning Scheme also maintains the requirement for mixed use development with activate frontages, which the Court gave material weight to (at [147]).

Court finds that the Proposed Development does not provide active street frontages

The term "active frontage" is not defined in the Planning Scheme, however, the Court accepted the following definition adopted by the town planning experts in their joint expert report (at [134]):

"An active frontage is a concentration of activity or goings-on at the front of a site or building, adjoining a public area such as a street or park. Active frontages make a public space interesting and encourages people to linger and stay. To be an active frontage, many elements must be combined to ensure the space is interesting, inviting, walkable and safe. A key component to active frontages is the use itself, activities such as shops, small offices and cafes promote the most active street fronts. Residential buildings can also activate the street by providing a clear address, direct access from the street and direct overlook over the street…"

The Proposed Development on Lot 3 of the Land relevantly includes a café, shop, and external seating areas (at [9]).

The Court accepted that the proposed café activates the frontage of Lot 3 because of the pathway linkage to the rail station which encourages pedestrian movement (at [139]). However, the Court found that "[t]he two driveways proposed in Lot 2 are the antithesis of an active frontage, conflicting with pedestrian movement and breaking up any visual interaction" (at [140]).

The Court found that the lack of mixed use development adversely impacts the ability for the Proposed Development to activate the Lot 2 frontage and promote at the ground level a high-level of physical and visual interaction and pedestrian access (at [140]).

Thus, the Court held that the Proposed Development does not provide active frontages as required by Overall Outcomes and Specific Outcomes of the MC Zone Code and that these non-compliances could not be remedied by the imposition of conditions (see [141] and [151]).

Court finds material weight ought to be given to the New Planning Scheme

The Court held that material weight should be given to the New Planning Scheme for the following reasons (see [154] to [160]):

1. The New Planning Scheme came into effect in 2018 and thus better reflects contemporary car parking requirements. The inclusion in the New Planning Scheme of requirements for one car parking space per dwelling was also accepted by the traffic expert engaged by the Applicant as a sensible approach.

2. The car parking provisions are finely grained for the Land.

3. The adoption of the New Planning Scheme indicates that the Council decided to apply a minimum parking rate, rather than the “maximum parking rate” advanced in the Growth Management Queensland – Transit Oriented Development Guideline.

4. The New Planning Scheme also includes requirements for mixed use development with activated ground floor frontages, but goes further than the Planning Scheme in that it places more importance on limited frontages being activated.

Conclusion

The Court was not persuaded that the non-compliances with the Planning Scheme could be resolved by imposing conditions on a development approval and was not inclined to exercise its discretion to approve the development application because of the lack of mixed use development and active frontages. The Court set aside the decision of the Council to approve the development application and held that the development application is refused.