The case of Nairn & Anor v Brisbane City Council [2024] QPEC 46 concerned an appeal by the owners of a building construction business (Applicants) against the decision of the Brisbane City Council (Council) to refuse the Applicants' development application for a development permit for a material change of use to operate a subcontracting construction company and a building company (Proposed Development), to regularise the existing unlawful use of the land at 302 Grassdale Road, Gumdale (Land).

The Court considered the following key issues (at [19]):

1. Is the Proposed Development an appropriate use of the Land? 

2. Does the Proposed Development involve unacceptable ecology impacts?

3. Are there relevant matters relied on by the Applicants under section 45(5)(b) of the Planning Act 2016 (Qld) (Planning Act) that lend support to approval?

4. Should the Proposed Development be approved in the exercise of the Court's discretion?

The Court found that the Applicants failed to establish that the Proposed Development should be approved and dismissed the appeal.

The Land is well vegetated with a rural character (at [29]). The ecological attributes of the Land are consistent with it being included in the Environmental Management Zone under the Brisbane City Plan 2014 (version 23) (City Plan), as well as it being affected by the High Ecological Significance, High Ecological Significance Strategic, Koala Habitat Area, and Matters of State Environmental Significance sub-categories of the Biodiversity Areas Overlay (at [26]).

The Proposed Development involves the indoor storage of building equipment within an existing approved shed, an ancillary, detached office for accounts and business management activities, as well as the periodic storage of containers and vehicles outdoors on the Land (at [55]).

The Council argued that the Proposed Development is an inappropriate use of the Land as it is out of character with the locality, does not support the implementation of the planned Greenspace System, and cuts across the clear land use intent in the Environmental Management Zone Code (EMZ Code) for the Land (at [82]). The Council also alleged that for those reasons the Proposed Development does not comply with various applicable assessment benchmarks (at [83]).

The Applicants contended that the Proposed Development constituted a "Domestic Enterprise", being a use which is not defined in the City Plan, but which the Applicants defined as "the use of a premises for business activities [being the storage of equipment used for a business and office activities] where the premises is also used for a dwelling; and the dwelling is occupied by the owner of the business" (at [56]). The "business activities" component of the "Domestic Enterprise" was proposed to be confined to an area identified on the development plan (at [59]). 

The Applicants further argued that the Proposed Development is not out of character with the locality given the limits on the use of the Land (at [86]).

The Applicants' visual amenity and town planning experts suggested that mitigation measures, such as painting the existing shed a darker colour, further landscaping, and the installation of a new boundary fence would result in the Proposed Development being unobtrusive (see [94] to [95]). 

The Court, however, found that these mitigation measures would "…not disguise the intense nature of the operations proposed to be undertaken" (at [97]). The Court preferred the evidence of the Council's town planning expert and agreed that the Proposed Development will be different to other development in the locality (at [101]).

The Court found that "[t]he frequency of vehicle movement, and the types of vehicles entering and exiting the subject land, coupled with the scale of the proposed shed, give the subject land an industrial character…", which will be out of character with the locality (at [108]).

Brisbane's Greenspace System is a key strategic land use outcome stipulated in the City Plan consisting of a "…network of greenspaces that is comprised of land with various attributes on the functionality continuum" (at [111]). The policy direction for the Greenspace System is a key focus in a number of themes contained in the Strategic Framework of the City Plan which seek to accommodate non-urban rural, environmental, or open space type uses and provide protection of environmentally sensitive areas from urban and industrial activities (at [117]). The Court held that when read in a holistic way, the assessment benchmarks in the Strategic Framework and EMZ Code establish a clear planning policy to not only protect the Greenspace System, but also to restore and enhance it (at [126]).

The Court preferred the evidence of the Council's town planning expert that the Proposed Development is "…fundamentally discordant with the strategic direction of the City Plan" and held that the proposed use of the Land does not support the implementation of the policy direction in the relevant assessment benchmarks (see [123] and [131]).

The purpose of the EMZ Code is to identify environmentally sensitive areas and provide for the protection of the environmentally sensitive areas from urban and industry activities (at [134]).

The Council argued that the Proposed Development does not comply with the overall outcomes of the EMZ Code and that no relevant support for the Proposed Development can be found elsewhere in the EMZ Code (at [138]). The Applicants did not meaningfully address the Council's arguments (at [139]).

The Court found that the Proposed Development cuts across the land use intent for land in the Environmental Management Zone and therefore the relevant overall outcomes for reasons including that the Proposed Development is not "natural environment-centred living" or "natural environment-centred land use" as alleged by the Applicants but rather a "…composite use that has, in part, an industrial character" (see [151] and [153]).

The Applicants argued that little weight should be afforded to the above non-compliances. The Council argued that the non-compliances warrant refusal because they can not be rectified by the imposition of conditions (at [155]).

The Applicants' town planning expert opined that the Proposed Development does not conflict with the strategic intent of the City Plan regarding land use and that it "…is not an overtly commercial or industrial land use" (at [164]). However, the Court preferred the evidence of the Council's town planning expert who opined that the Proposed Development "…is discordant with the strategic direction of City Plan and sound town planning principles to separate high amenity lifestyle areas from industrial type uses" (at [171]).

The Court found that the Proposed Development is an inappropriate use of the Subject Land based on "[t]he land use non-compliance and inappropriate character impact [which is] incapable of resolution by conditions", which alone warrants refusal of the Proposed Development (at [176]).

The Council argued that the Proposed Development would result in an inappropriate and unacceptable ecological outcome when assessed against the planning intent for the Subject Land as stipulated in the City Plan (at [177]).

While the Applicants conceded that the Proposed Development does not comply with a number of applicable assessment benchmarks, the Applicants argued, broadly, that appropriate mitigation measures could be achieved via conditions (see [180] and [181]).

The Court held as follows with respect to the following questions and consequently found that an assessment of the Proposed Development against the relevant assessment benchmarks tell against approval:

• What do the assessment benchmarks require in respect of ecological impacts? – The Court found that the Biodiversity Areas Overlay Code "…sets high standards for development on land affected by the overlay" which are "…unlikely to be addressed by adopting a minimalistic approach…" (at [189]).

• What mitigation measures with respect to ecology are proposed? – The Court found that the mitigation measures relating to stormwater management, visual amenity, ecology, and bushfire, as well as other things, proposed by the Applicants' ecology expert to deal with the ecological impacts of the Proposed Development fell short of the ecological outcomes sought by the City Plan (see [192] and [195]).

• Does the Proposed Development achieve appropriate ecological outcomes? – The Court found that the ecological impacts of the Proposed Development are not minor and the proposed mitigation measures are insufficient (at [225]). Thus, the Court found that, when assessed against the applicable assessment benchmarks, the Proposed Development does not achieve an appropriate ecological outcome (at [229]).

• Should conditions be imposed in accordance with the advice of the Applicants' ecology expert? – Whilst the Court accepted that if the conditions proposed by the Applicants were lawful they could be imposed as relevant conditions, the Court was not persuaded that the Proposed Development should be approved in light of the unacceptable character impacts (see [233], [236], and [245]).

The relevant matters relied on by the Applicants were that the Proposed Development could be undertaken without adverse impacts upon surrounding properties and the Proposed Development complies with the relevant assessment benchmarks or otherwise could be conditioned to comply (at [248]).

Whilst the Court accepted that these are relevant matters for the purpose of section 45(5)(b) of the Planning Act, the Court had already dealt with them and remained unpersuaded "…that the substance of these contentions lends any greater weight to the case for approval…" (at [250]).

The Court considered a number of matters raised by the Applicants as lending support to the case for approval and weighed them against the significant non-compliances with the City Plan.

The Court was not persuaded that the matters favouring approval, taken collectively, "…are sufficient to provide a sound town planning basis to depart from the City Plan" (at [258]).

The Court refused the development application for a development permit for the Proposed Development and dismissed the appeal.

The Court's decision in this case highlights the following important considerations for those appealing to the Planning and Environment Court of Queensland in respect of a refusal of a development application:

• Significant non-compliances with the policy direction, land use strategies, and applicable assessment benchmarks in the relevant planning scheme represent strong matters favouring refusal of a proposed development.

• Where there are significant non-compliances with the applicable assessment benchmarks, a sound basis for departure from the relevant planning scheme must be established.