Quality over quantity: Multiple dwelling in New Farm, Queensland, approved on appeal as compliance with the qualitative provisions of the planning scheme prevail over non-compliance with the quantitative provisions of the planning scheme

In brief

The case of Clarry & Anor v Brisbane City Council & Anor [2022] QPEC 49 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council to approve a development application for a development permit for a material change of use for a multiple dwelling (eight units) (Proposed Development) on land situated at 28 Maxwell Street, New Farm (Subject Land).

The Court considered the following issues which were in dispute between the parties having regard to the relevant provisions of the Brisbane City Plan 2014 (version 20) (Planning Scheme):

• Whether the height, scale, and form of the Proposed Development is acceptable.

• Whether the Proposed Development's servicing arrangement for refuse collection is acceptable.

• Whether there are relevant matters justifying approval or refusal of the Proposed Development.

The Court held that the height, scale, and form of the Proposed Development satisfies the relevant qualitative assessment benchmarks in the Planning Scheme, that a minor non-compliance with the Planning Scheme in respect of refuse collection does not justify refusal of the Proposed Development, and that there were no relevant matters justifying refusal of the Proposed Development.

As the Proposed Development had been the subject of a minor change during the proceedings, the Court allowed the appeal only to the extent that new conditions of approval could be prepared.

Background

The Subject Land has an area of 842 m^₂ and is located in Maxwell Street, which has a residential character, within the Brisbane suburb of New Farm, which exhibits a mixed urban character (see [3] to [4]).

Relevantly, the Court described Maxwell Street as follows (at [4]):

"The street is not characterised by any particular built form. It is a place where contemporary architecture adjoins traditional architecture. There is a preponderance of multiple dwellings of various heights and sizes. There is a range of storeys present and a range of styles, regardless of whether the building is a house or a multiple dwelling."

Maxwell Street is comprised of areas of mixed zoning under the Planning Scheme. The land on both sides of Maxwell Street from the Merthyr Road intersection to the head of Maxwell Street's cul-de-sac, including the Subject Land, is included in the Low-Medium Density Residential (2 or 3 Storey Mix) Zone. The land to the west of and surrounding the head of Maxwell Street's cul-de-sac and the land along Raff Lane at the rear of the Subject Land is included in the Medium-Density Residential Zone (at [5]).

The Subject Land is also included in the New Farm and Teneriffe Hill Neighbourhood Plan and the Low-medium Density Precinct NPP-002 (at [6]).

The Subject Land was already improved by a four-storey multiple dwelling consisting of nine units which was described by the Court as being "entirely devoid of architectural merit" (at [3]).

The Applicants own and reside in a Spanish-mission style home adjacent to the Subject Land, which is listed as a Local Heritage Place (at [2]).

Court finds the height, scale, and form of the Proposed Development is consistent with the qualitative provisions of the Planning Scheme

Although the Proposed Development is non-compliant with the quantitative acceptable outcomes in the Low-Medium Density Residential (2 or 3 Storey Mix) Zone Code (LMDR Zone Code) with respect to height, scale, and form (at [23]), the Applicants submitted that the Proposed Development is consistent with the assessment benchmarks which involve qualitative rather than quantitative outcomes. In particular, the Applicants submitted that "[t]o the extent that there are provisions in various codes which impose quantitative assessments, it is submitted that the [New Farm and Teneriffe Hill Neighbourhood Plan Code] applies to the extent of any inconsistency…" (at [24]).

The Court found that the relevant acceptable outcomes were of no consequence to the Court's evaluation of the relevant qualitative assessment benchmarks (at [33]).

The New Farm and Teneriffe Hill Neighbourhood Plan Code (NP Code), which by virtue of section 1.5(d) of the Planning Scheme prevails over the LMDR Zone Code, relies entirely on qualitative measures to satisfy the overall outcomes and performance outcomes of the NP Code. Relevantly, overall outcome 3(m) of the NP Code permits development of a height, scale, and form which is not consistent with the amenity and character, community expectations, and infrastructure assumptions intended for the Subject Land in circumstances where there is both a community need and economic need for that development (at [28]).

The Court accepted evidence from the Applicants' economic analyst expert that the Proposed Development is consistent with the strong housing demand for units and apartments in New Farm. The Court found that there is a community and economic need for the Proposed Development so as to satisfy overall outcome 3(m) of the Planning Scheme (at [30]).

Further, with respect to a number of performance outcomes of the LMDR Zone Code and the performance outcomes applicable to the Low-medium Density Precinct of the NP Code, the Court found that Proposed Development is consistent with the mixed amenity and character of Maxwell Street and the wider locality (at [36]).

Court finds that minor non-compliance with the Planning Scheme in respect of refuse collection does not justify refusal of the Proposed Development

The servicing arrangement for the Proposed Development involved non-compliance with the Refuse Planning Scheme Policy, which is referred to in performance outcome PO32 of the Multiple dwelling code of the Planning Scheme, in that four refuse bins were at risk of falling over upon kerbside collection due to the contour of the frontage of the Subject Land (see [45] to [46]).

The Court found that this non-compliance was minor and did not justify refusal of the Proposed Development (at [46]).

Court finds that the Planning Scheme has not been overtaken by events

The Applicants argued that the planning strategy contained within the Planning Scheme had effectively been overtaken by events having regard to existing development and the history of development approvals in Maxwell Street. The Court was not satisfied that the Planning Scheme had been overtaken by events given that the Planning Scheme provides for "performance based qualitative assessment benchmarks" as the development controls for the Subject Land's locality (see [47] to [48]).

Conclusion

The Court allowed the appeal only to the extent of imposing new conditions of approval which are reflective of the Proposed Development that was the subject of a minor change during the proceedings.