Reconfiguring a lot into four lots in a low density residential zone approved on appeal to the Planning and Environment Court of Queensland

In brief

The case of Saini and Muhar as Trustees v Redland City Council [2022] QPEC 45 concerned an appeal to the Planning and Environment Court of Queensland (Court) against a decision of the Redland City Council (Council) to refuse a code assessable development application for a development permit for reconfiguring a lot (one lot into four lots) and an associated development permit for operational works (Proposed Development) in respect of land situated in Birkdale, Queensland (Subject Land).

Background

The Subject Land has an area of 2,003 m² with a 54.55-metre frontage to Haig Road. The Subject Land is included in the Low Density Residential Zone under the Redland City Plan 2018 (version 5) (Planning Scheme), and specifically within the Large Lot Residential Zone Precinct (LLRZ Precinct).

The Proposed Development involves reconfiguring the Subject Land into four regularly shaped residential lots, each with a proposed frontage of approximately 13.6 metres to Haig Road. One lot is proposed to have an area of 500 m² and the other three lots are proposed to have an area of 501 m².

The Court considered the following issues in respect of the applicable Low Density Residential Zone Code (LDRZ Code):

• Whether the Proposed Development would result in the LLRZ Precinct retaining a very low density residential character (see overall outcome (3)(a)(i) in section 6.2.1.2 of the LDRZ Code).

• Whether the Proposed Development would result in lot sizes that are consistent with the density and character of the surrounding established neighbourhood (see overall outcome (3)(a)(iv) in section 6.2.1.2 of the LDRZ Code).

• Whether the Proposed Development would achieve lots which provide for the establishment of dwelling houses with a high level of amenity and a sense of openness (see overall outcome 6.2.1.2(1) in section of the LDRZ Code).

• Whether the Proposed Development would avoid further fragmentation of land in the LLRZ Precinct (see performance outcome PO20 of the LDRZ Code).

The Court allowed the appeal and approved the Proposed Development subject to the imposition of lawful conditions for the reason that the Proposed Development complies with the relevant assessment benchmarks, in that the proposed lots are appropriately sized and configured so that they are low density and consistent with the pattern of the density of the surrounding established neighbourhood and can accommodate dwelling houses with high levels of amenity.

Court found that the Proposed Development complies with the Planning Scheme

The Court considered town planning evidence from the Council and the Applicant, including in relation to visual amenity, and relevantly held as follows in respect of the Proposed Development:

• The very low density residential character of the LLRZ Precinct will be retained if the Proposed Development proceeds as any building form developed on the proposed lots will need to comply with the LDRZ Code and the majority of lots in the LLRZ Precinct will still be in excess of 2,000 m² despite an increase in the density of the Subject Land (see [40]).

• The Proposed Development is consistent with the established neighbourhood, which (see [48], [58], and [62]):

  • includes land outside of the LLRZ Precinct; and

  • contains a diversity of lot sizes and no uniformity, with the predominant lot size being significantly less than 2,000 m²; and

  • is characterised by single dwellings on parcels of land which vary in size.

• Given that the Proposed Development will create low density lots and any development on the lots will have to comply with the LDRZ Code, the Proposed Development will provide for residential areas with a high level of amenity and achieve a general sense of openness with a low density streetscape (see [73]).

Conclusion

The Court found that the Proposed Development complies with all of the relevant assessment benchmarks. Thus, the Court set aside the Council's decision and replaced it with an approval subject to conditions.