The case of Garbutt & Ors v Brisbane City Council & Anor [2026] QPEC 14 concerned an appeal by two eligible submitters for a development application (Submitters) to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to approve a development application for a development permit for a material change of use for a 13-unit, six-storey multiple dwelling with a roof deck at Kingsford Smith Drive, Hamilton (proposal). The site forms part of a disused quarry cut into the surrounding hillside and enclosed by Quarry Street (at [1], page 3). 

The Submitters relied principally on the proposal’s noncompliance with assessment benchmarks relating to building height, site cover and visual and residential amenity impacts, and an asserted overdevelopment of the site, limited need for the proposal and the proposal's inclusion of landscaping within the public road verge. The Court dismissed the appeal and the development application, as changed by way of a minor change application during the appeal, was approved (at [79], page 23). 

The site is in the low medium density residential zone under Brisbane City Plan 2014 (version 24) (Planning Scheme), which contemplates development of two to three storeys high. The Applicant and the Council accepted that the proposal of six storeys exceeds the benchmark height. However, the Court reaffirmed that noncompliance with an assessment benchmark does not compel refusal and that the decision-maker may consider other relevant matters when exercising the discretion under section 60(3) of the Planning Act 2016 (Qld) (Planning Act) (see [3] to [4], pages 3 to 4). 

The Planning Scheme remains an important expression of the public interest, but the Court is required to balance matters favouring approval against matters favouring refusal (at [4], page 4). 

Several experts suggested that a lower or different form of development could provide a similar yield. The Court gave those comparisons little weight and held that its function is to determine whether the proposal before it is acceptable, not whether another design might be more acceptable or to redesign the development (see [5], [12], [23], [28] and [30], pages 4, 8 to 9, 11 and 12). 

The Court accepted the evidence of the visual amenity experts supporting approval. The building is to be set into the quarry terrain and each residential level stepped away from Kingsford Smith Drive, reducing the apparent scale and height. Receding floor plates, articulated facades, varied roof forms and pockets of open space and landscaping respond to the site's irregular shape and steep topography (see [2] to [5] and [13], pages 5 to 7 and 9). 

The surrounding locality contains substantial variation in built form and relative levels. All but one building in Quarry Street has a higher relative level than the proposal. The Court found that the site could accommodate the proposed height without an unacceptable walling effect or unacceptable visual impact, and that the setbacks exceed the Planning Scheme minimums (see [9] and [13], pages 8 and 9). 

The proposal will materially affect the outlook from a neighbouring property on Quarry Street, including views towards the river and central business district from lower levels. However, private views are not protected by the Planning Scheme. The Court nevertheless assessed the significance of the impacts and found that the outlook and amenity effects are not unacceptable (at [2], [7] and [13], pages 5 to 6, 7 and 9). 

Noise can be mitigated, light spill complied with relevant standards and separation distances of approximately 26 to 35 metres exceed the relevant 18 metre requirement. However, it was held that there are no unacceptable impacts on breezes, light, privacy or overshadowing. The existing locality is also significantly affected by existing traffic noise from nearby Kingsford Smith Drive (see [14] to [17], pages 9 to 10). 

Need was recognised as a relevant discretionary consideration under section 45(5)(b) of the Planning Act. The need experts agreed that Brisbane requires additional infill housing over time. Although the proposal will make only a modest contribution to supply and will not address housing affordability, the Court accepted that well located infill developments collectively contribute to housing diversity, choice and downsizing opportunities. Even comparatively small developments may attract meaningful weight in the exercise of the discretion where they advance broader planning objectives (see [18] to [33], pages 10 to 13). 

Although 13 high value apartments will make only a small contribution and will not address housing affordability, the Court accepted that small projects collectively contribute to housing diversity and choice. The proposal provides large apartments and potential downsizing opportunities in a well-serviced inner city location. Need therefore carries discretionary weight in favour of approval (see [29] to [33], pages 12 to 13). 

The Quarry Street driveway does not achieve the Council policy preference of 20 metres from a major intersection, but it complies with the applicable Australian standard. Surveyed speeds were low and the required sight distances could be achieved under the amended plans. The traffic experts agreed that the proposed access is safe, provided vegetation within the verge is kept low or trimmed (see [34] to [40], pages 13 to 15). 

The proposal includes the removal of existing vegetation and substantial landscaping, as well as retaining and drainage works within the public verge. The Submitters argued that this improperly uses public land to compensate for inadequate on-site landscaping and creates uncertainty about long-term maintenance (see [41] to [52], pages 15 to 17). 

The Court held that conditions could require improvements and ongoing maintenance within a road reserve. Under section 65(1) of the Planning Act, a condition must be relevant to, and not an unreasonable imposition on, the development or be reasonably required because of it. The proposed conditions serve proper planning purposes by improving the streetscape and maintaining traffic sight lines (at [53], page 17). 

The maintenance obligation will bind future owners, who can discharge it through the body corporate or other delegates. In the absence of evidence to the contrary, the Court is entitled to assume that the conditions will be complied with and enforced if necessary. The use of the verge is not a private appropriation of public land and is not unprecedented (see [52] and [54] to [58], pages 17 and 18 to 19). 

A condition of approval requires a detailed landscape plan before the use commenced. The Court considered it conventional for excavation, levels, drainage and planting details to be resolved through conditions at the detailed design stage. The available material was sufficient to conclude that the proposal can comply with the relevant codes, and the verge works are not materially uncertain, undefined or unsecured (see [59] to [65], pages 19 to 20). 

The Court accepted that the proposal departs from the Planning Scheme and that the balancing exercise is complex. Throughout the judgment, the Court repeatedly returned to the site's unusual former quarry context. Rather than treating the height exceedance in isolation, it assessed whether the site's physical characteristics, responsive design, generous separation distances and acceptable amenity outcomes justified departure from strict adherence to planning controls. Those considerations, together with recognised planning need and the public benefit of renewed verge landscaping, outweigh the matters favouring refusal (see [78] to [80], pages 23 to 24). 

The appeal was dismissed and the development application, as changed by way of a minor change application during the appeal, was approved.  

The decision in this case reinforces that even substantial noncompliance will not necessarily determine the outcome of an impact assessment where the planning merits of the particular proposal outweigh the identified matters favouring refusal. The key takeaways from the court's decision in this case include: 

• Private views may be considered as part of amenity, even where the relevant planning scheme does not protect them, but the relevant question is whether the impact is unacceptable. 

• A modest scale or high value housing project may still contribute to housing diversity, choice and infill objectives. 

• Development conditions requiring works and ongoing maintenance within a public road verge may be valid where they serve a proper planning purpose, are sufficiently certain and are enforceable.