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[2024] QCA 39
General information, not legal advice.
Court of Appeal (Qld)
2024-03-22
Mullins P and Bond and Flanagan JJA
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39
PARTIES: DANIEL CLARRY AND SARAH CLARRY / (applicants) / v / BRISBANE CITY COUNCIL / (first respondent) / 4005 PROPERTIES PTY LTD / ACN 624 827 943 / (second respondent)
FILE NO/S: Appeal No 973 of 2023 / P & E Appeal No 2616 of 2021
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Planning and Environment Court Act
ORIGINATING COURT: Planning and Environment Court at Brisbane – [2022] QPEC 49 (Everson DCJ)
DELIVERED ON: 22 March 2024
DELIVERED AT: Brisbane
HEARING DATE: 17 August 2023
JUDGES: Mullins P and Bond and Flanagan JJA
ORDERS: Leave to appeal refused.Costs reserved to be determined on the papers.Any submissions that the parties wish to make on costs must be made in writing within 14 days of the date on which the reasons for judgment are published and must not exceed two A4 pages.
CATCHWORDS: ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants reside next to the second respondent’s proposed development site – where the Council approved the second respondent’s development application for a material change of use for a multiple dwelling on the site – where the applicants appealed unsuccessfully against the Council’s decision to the Planning and Environment Court (P&E Court) – where the primary judge gave effect to the qualitative provisions in the relevant overall outcome and performance outcome in the neighbourhood plan code concerning the height of the proposed building in priority to the quantitative provisions of the planning scheme – whether the primary judge erred in the construction of the planning scheme / ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants reside next to the second respondent’s proposed development site – where the Council approved the second respondent's application for the proposed development – where the applicants appealed against the Council’s decision to the P&E Court – where the height of the proposed development is six storeys and 4.7m higher than the existing four storey multiple dwelling on the site – where the primary judge rejected the submitters’ expectations that the building height on the site would be limited to two to three storeys or four storeys as unreasonable – whether the primary judge failed to have regard to the community expectations when carrying out the impact assessment of the development application / ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the Council approved the second respondent's application for the proposed development – where the applicants appealed against the Council’s decision to the P&E Court – where the primary judge accepted evidence, and found, that there is a community need and economic need for the proposed development, if it were found that there was some non-compliance with the planning scheme – whether the primary judge erred in making a finding of fact that there was a community need and economic need for the proposed development / Planning Act 2016 (Qld), s 45, s 59, s 60 / Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 46 / Planning Regulation 2017 (Qld), s 31 / Abeleda v Brisbane City Council (2020) 6 QR 441; [2020] QCA 257, considered / Body Corporate for Lindor Community Title Scheme 29204 v Gold Coast City Council [2018] QPELR 265; [2018] QPEC 54, cited / Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; [2020] QCA 253, cited / Development Watch Inc v Sunshine Coast Regional Council [2023] QPELR 489; [2022] QCA 6, considered / McKay v Brisbane City Council [2022] QPELR 963; [2021] QPEC 42, cited / Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPELR 309; [2021] QCA 95, cited / Wilhelm v Logan City Council [2021] QPELR 1321; [2020] QCA 273, referred to / Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, cited
COUNSEL: G J Gibson KC, with R Yuen, for the applicants / B D Job KC, with B G Rix, for the first respondent / M J Batty and J E Bowness for the second respondent
SOLICITORS: Connor O'Meara Solicitors for the applicants / City Legal – Brisbane City Council for the first respondent / Thynne + Macartney Lawyers for the second respondent
MULLINS P: The applicants who reside at 30 Maxwell Street, New Farm apply for leave to appeal against the decision of the learned primary judge on their submitter appeal against the Brisbane City Council’s decision to approve, subject to conditions, the second respondent’s development application for a development permit for a material change of use for a multiple dwelling (eight units) on the land at 28 Maxwell Street, New Farm: Clarry & Anor v Brisbane City Council & Anor [2022] QPEC 49 (the reasons). The appeal was allowed by the primary judge only to the extent of imposing conditions to give effect to the minor changes to the approved plans that occurred during the appeal before the primary judge. The applicants were therefore, in effect, unsuccessful before the primary judge.
I will use the same shorthand expressions used by the primary judge of “the proposed development” for the development which is the subject of the second respondent’s development application and “the site” for the land at 28 Maxwell Street.
It is common ground that the version of the Brisbane City Plan 2014 (the planning scheme) that was in force when the notice of appeal was filed in the Planning and Environment Court (P&E Court) on 7 October 2020 which was version 20 is the version of the planning scheme on which this Court’s decision should also be based.
The site is in the Low-medium density residential (2 or 3 storey mix) zone (LMDR2Z). The site is also included in the New Farm and Teneriffe Hill neighbourhood plan area and is therefore subject to the New Farm and Teneriffe Hill neighbourhood plan code (the NPC) and is within the Low-medium density living precinct (LMD precinct) identified on the New Farm and Teneriffe Hill neighbourhood plan/NPP-002 (the neighbourhood plan). The site fronts Maxwell Street and it is bounded at the rear by Raff Lane which is parallel to Maxwell Street.
The relevant legislation
It is also common ground that the development application is impact assessable pursuant to s 45(5), s 59 and s 60(3) of the Planning Act 2016 (Qld) (Act). There is no challenge to the framework and principles set out at [9]-[15] of the reasons applicable to the appeal to the P&E Court. As the primary judge noted (at [9]), the appeal to the P&E Court was by way of hearing anew and the respondent was required to establish that the appeal to the P&E Court should be dismissed: s 43 and s 45(2) of the Planning and Environment Court Act 2016 (Qld) (PECA).
Section 45(5) of the Act provides:
“An impact assessment is an assessment that—
must be carried out—
against the assessment benchmarks in a categorising instrument for the development; and
having regard to any matters prescribed by regulation for this subparagraph; and
may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.”
Section 46(2) of the PECA provides that s 45 of the Act applies for the P&E Court’s decision on the appeal as if the P&E Court were the assessment manager for the development application.
As the primary judge noted (at [10] of the reasons), s 31 of the Planning Regulation 2017 (Qld) (the Regulation) sets out the matters that an impact assessment must have regard to generally for the purpose of s 45(5)(a)(ii) of the Act which includes:
“(f)any development approval for, and any lawful use of, the premises or adjacent premises; and
the common material.”
The common material is defined in schedule 24 to the Regulation to mean all the material about the application that the assessment manager receives before the application is decided and includes “any properly made submissions about the application ...”. As the primary judge then noted (at [10] of the reasons), that meant that the primary judge on the appeal to the P&E Court must have regard to the existing multiple dwelling located on the site and that there were 11 properly made submissions which all opposed the proposed development.
Under s 59(3) of the Act, the assessment manager’s decision must be based on the assessment of the development carried out by the assessment manager which also applied to the P&E Court’s decision on the appeal. The primary judge noted (at [13] of the reasons) the nature of the task of decision-maker under s 60(3) of the Act set out in Abeleda v Brisbane City Council (2020) 6 QR 441 at [42]-[43]. (See also the characterisation of the ultimate decision called for when making an impact assessment under s 45 and s 60 of the Act as “a broad, evaluative judgment” in Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 at [59].) The primary judge also noted (at [14]) the accepted principle that a planning scheme is a reflection of the public interest in the appropriate development of land continues to apply to the decision-making regime under the Act, referring to Wilhelm v Logan City Council [2021] QPELR 1321 at [77].
The primary judge set out the relevant provisions of the planning scheme at [16]-[20] of the reasons.
Section 1.5 of the planning scheme sets out the hierarchy of the assessment benchmarks. Relevantly, paragraph (d) of s 1.5 provides that where there is inconsistency between provisions in the planning scheme, neighbourhood plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency.
Section 7.1 of the planning scheme sets out preliminary matters that apply to all neighbourhood plans. Paragraph 6 of s 7.1 explains the components of each neighbourhood plan code (which sets out the assessment benchmarks for the relevant neighbourhood plan) and the relationship between them:
“Each neighbourhood plan code identifies the following:
a. the application of the neighbourhood plan code;
b. the purpose of the neighbourhood plan code;
c. the overall outcomes that achieve the purpose of the neighbourhood plan code;
d. the purpose and overall outcomes for each precinct;
e. the performance outcomes that achieve the overall outcomes of the neighbourhood plan code;
f. the acceptable outcomes that achieve the performance outcomes of the neighbourhood plan code;
g. the performance and acceptable outcomes of a precinct that achieve the overall outcomes of the precinct.”
Section 7.2.14.1.1 sets out the application of the NPC. Paragraph 3 provides that, when using the NPC, “reference should be made to section 1.5, section 5.3.2 and section 5.3.3”. Section 5.3.2 of the planning scheme deals with determining the categories of development and assessment and its application is not contentious in this matter. Section 5.3.3 of the planning scheme deals with determining the requirements for accepted development and assessment benchmarks and other matters for assessable development. Section 5.3.3.4(c) provides that code assessable development “that complies with the purpose, overall outcomes and the performance outcomes or acceptable outcomes of the code complies with the code” and its significance was noted at [17] of the reasons. (See Abeleda at [64] where it was observed that it was logical that the requirement under s 5.3.3.4(c) which is concerned with code assessable development also relates to the assessment of impact assessable development for determining whether the proposed development complies with the assessment benchmarks in the relevant code.)
Section 7.2.14.1.2 of the NPC sets out its purpose which is to provide “finer grained planning at a local level” for the New Farm and Teneriffe Hill neighbourhood plan areas and that it will be achieved “through overall outcomes including overall outcomes for each precinct of the neighbourhood plan area”. Relevantly overall outcome 3m (OO3m) provides:
“Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”
“Proposals retain existing houses and are of a scale and character compatible with detached housing.”
“PO1
Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:
…
b. aligned with community expectations about the number of storeys to be built; …
AO1
Development complies with the number of storeys and building height set out in Table 7.2.14.1.3.B.”
The primary judge also (at [18] of the reasons) extracted from table 7.2.14.1.3.B the maximum building height for the LMD precinct, namely two storeys or 9.5 metres.
It was recorded (at [19] of the reasons) that the parties had identified that development form OO5a and OO5b and the 2 or 3 storey mix zone precinct OO7a, OO7b and OO7d of the Low-medium density residential zone code (LMDRZC) were also relevant provisions from the planning scheme. The primary judge set out at length (at [20]) the provisions from s 9.3.14.2 of the Multiple dwelling code (MDC) that had been identified as relevant, including the extracts of relevant performance outcomes and acceptable outcomes from table 9.3.14.3.A.
The reasons
The site has an area of 842 m2 and contains a four storey multiple dwelling consisting of nine units built in the early 1970s and constructed of clay bricks that “appears entirely devoid of architectural merit”: see [3] of the reasons. Maxwell Street is residential in character, not characterised by any particular built forms and there is a preponderance of multiple dwellings of various heights and sizes: see [4] of the reasons. The proposed development is for a six storey building consisting of six three bedroom units and two four bedroom units with a site coverage of 65 per cent and includes basement level car parking and a ground level gymnasium, recreation lounge and swimming pool: see [7] of the reasons. (There is some inconsistency throughout the reasons in the references to the proposed development as six storeys or five storeys. There is no ambiguity in the plans for the proposed development included in exhibit 2 which show a basement, ground floor and five storeys (excluding the top of the lift overrun). Because of the definition of “storey” in the planning scheme, the proposed development is technically six storeys in height though appears as five storeys from its side boundaries due to the slope of the site so that the ground level parking is slightly below ground level. Without the lift overrun, the proposed development is 4.7m higher than the existing building on the site.)
The primary judge set out (at [5] of the reasons) the detail of the mixed zoning of Maxwell Street, noting that Maxwell Street terminates in a cul-de-sac at its western end, all the land on either side of Maxwell Street from the intersection with Merthyr Road to the east to the head of the cul-de-sac is in the LMDR2Z (including the site), and the land at the head of the cul-de-sac and to the west and all the land on the northern side of Raff Lane at the rear of the site is located in the Medium-density residential zone (MDRZ). The primary judge also noted (at [5]) that “in the vicinity of Raff Lane there are several tall multiple dwellings in the MDRZ which overlook the site and the appellants’ property next door”. (That is illustrated by the photograph at p 91 of the book of plans (exhibit 2 at the trial) that shows the view of the site from Raff Lane with several high rise buildings to the north-west of the site which the primary judge accurately described as overlooking the site and the applicants’ property.)
The primary judge set out (at [7] of the reasons), and accepted as accurate, a summary of the proposed development from the evidence of architect Mr Curtis which is relied on in these reasons without repeating the summary.
The matters in issue in the P&E Court are identified at [21] of the reasons. The most significant issue was whether the height, scale and form of the proposed development was acceptable, having regard to the provisions of the planning scheme. The primary judge dealt with that issue at [25]-[44] of the reasons. There was also an issue about whether the proposed servicing arrangements for waste collection were acceptable, having regard to PO32(b) and AO32 of the MDC which was dealt with at [45]-[46] of the reasons.
“[27] As noted above, the NPC prevails over the LMDRZC and the MDC to the extent of any inconsistency between the relevant provisions. In circumstances where there is acknowledged significant non-compliance with relevant acceptable outcomes, the [second respondent] relies upon compliance with the purpose, overall outcomes and performance outcomes of the relevant provisions of the applicable codes. In this regard, I note that there are no parts of the purpose of the codes, other than overall outcomes quoted above, relevant to the exercise of my discretion. To the extent that overall outcome 2.h. of the MDC [prescribes] a height of two or three storeys for the site, and overall outcome 7 of the LMDRZC [prescribes] dwelling houses and two to three storey low-rise multiple dwellings, it is submitted that this is inconsistent with the NPC.
[28] The NPC does not [prescribe] any height limits, relying entirely on qualitative measures for satisfaction of overall outcomes and performance outcomes. Significantly, overall outcome 3.m. permits development of a height, scale and form greater than that which is consistent with the ‘amenity and character, character expectations and infrastructure assumptions intended for the… site’ where there is ‘both a community need and an economic need for the development’.” (footnotes omitted)
The primary judge accepted (at [30] of the reasons) the evidence of Mr Stephens, an economic analyst called by the second respondent, to the effect that there was a strong housing demand for units and apartments in New Farm and the proposed development was consistent with the economic need for housing in New Farm. The primary judge therefore concluded (at [30]) that “there is both a community need and an economic need for the proposed development” (which was relevant to the application of OO3m).
The primary judge noted (at [31] of the reasons) that it was a relevant matter in determining the appeal about the extent to which the variances from the acceptable outcomes should assume significance in the exercise of the discretion exercised by the Court. The primary judge referred (at [32]) to the observations made by Kefford DCJ in McKay v Brisbane City Council [2022] QPELR 963 at [43] and [95] as of assistance to the determination of the subject appeal. McKay concerned a development application that was impact assessable for a material change of use in the Medium-density residential zone to facilitate a 10 unit six storey apartment building with a private terrace and two levels of basement car parks. One of the issues was the height, bulk and scale of the building as the Medium-density living precinct in the NPC provided for development up to five storeys. In dealing with the appellants’ submissions in McKay on the differences between the proposed development and quantitative provisions in the codes, Kefford DCJ observed (at [95]):
“In short, the Appellants’ position is premised on a disparity between the metrics of the proposed development and other nearby buildings. This is not an appropriate approach. The relevant assessment benchmarks with which non-compliances are alleged do not contain quantitative standards to which development must adhere. Rather, the assessment benchmarks call for an evaluative judgment about the qualitative contribution the proposed development would make to the streetscape and the character of the locality.”
“The combination of the failure of the NPC to incorporate any metrics into the purpose, overall outcomes and performance outcomes, combined with the opportunity to provide development of a height, scale and form greater than that otherwise consistent with these qualitative assessments, pursuant to overall outcome 3.m., is important. I am of the view that the identified acceptable outcomes of the codes in question are not of any consequence when making an evaluative judgment about the qualitative matters relevant to the determination of this appeal set out in the overall outcomes and performance outcomes of the relevant parts of the planning scheme. Moreover, to the extent quantitative restrictions are imposed in the overall outcomes and performance outcomes of the LMDRZC and the MDC, they are inconsistent with these qualitative provisions in the NPC and the overall outcomes and performance outcomes of the NPC prevail to the extent of any inconsistency.”
In other words, the primary judge was of the view that OO3m and PO1 in the NPC were not necessarily constrained by the quantitative provision in AO1 and to the extent the same quantitative provision is in the LMDRZC and the MDC, the qualitative provisions of the NPC prevail.
The primary judge then (at [34]-[36] of the reasons) considered the proposed development against the various assessment benchmarks and stated (at [36]):
“I find the proposed development consistent with the amenity and character which presents because of the design features noted in paragraph [7] above, and the setting for the proposed development, amongst a variety of residential buildings of various shapes, sizes and designs.”
“Turning to these considerations, I appreciate that the expectations of the local community, as demonstrated through the submissions and the statements of the various residents, were essentially that the proposed development was of a height, scale and form which was greater than the expectations of the local community. However, given that there are no quantitative limits when consideration is given to the purpose, overall outcomes and performance outcomes of the NPC and that this code applies to the extent of any inconsistency in terms of any quantitative measure giving rise to such expectations, these expectations are not reasonable. As noted above in paragraph [14], the planning scheme is ‘the reflection of the public interest in the appropriate development of land’ and where reasonable expectations are to be found. The proposed development is also consistent with the residential character of the street, both as a whole and in the part including the site, despite the assertions of various residents to the contrary. As noted above, it will replace a dated and unremarkable four storey apartment building with a larger, well designed five storey apartment building, in a residential street containing many large apartment buildings and other residential buildings.” (footnotes omitted)
“The proposed development is consistent with the qualitative provisions of the planning scheme relating to height, scale and form identified above. Relevantly, the [second respondent] has been able to demonstrate compliance with each of the relevant criteria in the identified overall outcomes and performance outcomes remaining in issue in the appeal.”
“In the event that there is some non-compliance in terms of the proposed height, scale and form then I am satisfied that the attributes of the proposed development warrant its approval having regard to s 7.2.14.1.2, 3.m. of the NPC. It has been demonstrated that there is both a community need and an economic need for the development. Waste bin collection issues certainly do not justify a refusal of the proposed development which is architecturally meritorious and responsive to the pattern of development in Maxwell Street. There are no relevant matters raised by the appellants to justify refusal of the proposed development when it has adequately addressed all of the relevant assessment benchmarks in the planning scheme, including those dealing with amenity impacts.”
“Given the design modifications which occurred during the course of the appeal, it is appropriate to allow the appeal to the limited extent to enable the imposition of new conditions reflective of the minor design changes.”
Application for leave to appeal
The application for leave to appeal is based on four errors of law asserted by the applicants in the draft notice of appeal which they submit materially affected the decision of the primary judge and involve important questions of construction of the planning scheme which remain relevant to the current version of the planning scheme.
These four asserted errors of law can be summarised as the primary judge erred in:the proper construction of the LMDRZC, the NPC and the MDC;concluding that the community expectations about development of the site were not reasonable;deciding that there was both a community need and an economic need for the proposed development within the meaning of OO3m of the NPC; anddeciding that the appeal to the P&E Court should be allowed only to the extent of imposing conditions to give effect to the minor changes to the approved plans.
Proper construction of the NPC, the LMDRZC and the MDC
The first asserted error is based on the primary judge’s interpretation and application of key provisions of the planning scheme relevant to the proposed development as set out in [28], [33], [39] and [49] of the reasons. The suggestion by the applicants that the primary judge had erred in considering that the NPC incorporated only qualitative provisions about the height of buildings, was not based on a fair reading of the primary judge’s reasons. The primary judge’s focus was on OO3m of the NPC and PO1b. The characterisation in [28] of the reasons that the NPC does not prescribe any height limits but relies on qualitative measures was expressly referring to the fact that there are no quantitative limits on height within the overall outcomes or the performance outcomes of the NPC which was an accurate characterisation of those provisions. The applicants submit that the quantitative restriction of AO1 of a maximum building height of two storeys or 9.5 metres affects community expectations and therefore is incorporated in PO1b as a quantitative consideration. That can be rejected. The fact that the restriction in AO1 might affect community expectations is one factor in conjunction with many others (such as the existing built environment) in ascertaining community expectations but does not affect the proper characterisation of OO3m of the NPC and PO1b as qualitative provisions which on their terms do not prescribe height limits.
It is common ground, as recognised by the primary judge (at [15] of the reasons), that the same principles which apply to statutory construction apply to the construction of planning documents: Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 at [52]. The nature of planning instruments remains relevant to the task of construction, as there can be multiple codes or provisions applicable to the same site. That is recognised by provisions such as s 1.5 of the planning scheme that sets out the hierarchy of the assessment benchmarks which are found in the respective provisions of the various codes that apply to the one site and that there are other provisions of the planning scheme that also apply: see Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPELR 309 at [79]-[80]. Such a provision as s 5.3.3.4(c) of the planning scheme means that an acceptable outcome can be one means of satisfying the related performance outcome but the acceptable outcome is not itself mandatory, if there are other ways of satisfying the performance outcome. A similar conclusion was reached on a similarly worded provision in Trinity Park Investments at [110]. The relationship between components of the NPC that is found in paragraph 6 of s 7.1 of the planning scheme and, in particular, subparagraphs (f) and (g) is not inconsistent with the application of s 5.3.3.4(c) of the planning scheme, so that an acceptable outcome is not treated as mandatory when there are other means of satisfying the related performance outcome or overall outcome.
The conclusion that the community expectations were not reasonable
The second asserted error overlaps with the first asserted error to a large extent as it is based on [39] of the reasons and the conclusion that the community expectations were not reasonable because there were no quantitative limits when consideration was given to the purpose, overall outcomes and performance outcomes of NPC and that those provisions of the NPC apply to the extent of any inconsistency in terms of any quantitative measure giving rise to such expectations. In view of the rejection above of the first asserted error, the only aspect of the second asserted error that remains to be considered is whether the primary judge failed to have regard to the common material (the properly made submissions) and other relevant matters (the lay witness statements of the submitters) when carrying out the assessment of the development application.
Development Watch was concerned with the assessment of a proposed development against the assessment benchmarks in the Sunshine Coast Planning Scheme 2014 which included the Height of building and structures overlay code. The relevant provision of that code set out its purpose and overall outcomes and noted that the purpose of the code would be achieved through three overall outcomes including “the height of the buildings and structures is consistent with the reasonable expectations of the local community” (the relevant overall outcome). The quality of reasonableness was an express provision in respect of community expectations in that code. Under the heading “Maximum height of buildings and structures” in the assessment criteria relating to those overall outcomes, performance outcome PO1 was stated to be that the “height of a building or structure does not exceed the maximum height specified on a Height of Buildings and Structures Overlay Map” and the predominant maximum height on that map for the local plan area was 8.5 metres. Even though the number of submissions by itself is never determinative of a planning issue, the significance of height as an issue in respect of the development under consideration in Development Watch was indicated by the receipt by the relevant Council of 11,666 properly made submissions.
The passage from Development Watch at [43] extracted by the primary judge (at [37] of the reasons) set out the steps that it was found should have been followed by the primary judge in Development Watch in considering whether there was compliance with the relevant overall outcome. The appeal was successful in Development Watch as Burns J (with whom Morrison JA agreed) found at [45] that the primary judge did not make a finding as to what the expectations of the local community were about the height of buildings and structures before proceeding to consider the reasonableness of those expectations in light of the planning provisions applying to the subject land. It was stated in Development Watch at [43] that it was only after the reasonable expectations were identified that the issue raised by the relevant overall outcome could be addressed as to whether the height of the buildings and structures was consistent with the reasonable expectations of the local community. McMurdo JA also noted (at [6] of ) that what was required in considering the development’s compliance with the relevant overall outcome was an assessment of whether the buildings and structures proposed by the development would be within the reasonable expectations of the local community. McMurdo JA considered (at [7]) that the primary judge’s finding that the community should also reasonably expect a development may be approved if it has a height of greater than two storeys but complies with the character and amenity requirements of the planning scheme did not answer the question which the judge had to consider in respect of the relevant overall outcome of whether the height of the buildings and structures in that development exceeded the reasonable expectations of the community.
Community need and economic need for the proposed development
The third asserted error arises from the primary judge’s acceptance of the evidence of Mr Stephens (at [30] of the reasons) to conclude that there is both a community need and an economic need for the proposed development. The essence of the applicants’ submission is that Mr Stephens’ evidence addressed the issues of community need and economic need at New Farm in a generic way and was not specific to the proposed development and therefore Mr Stephens’ evidence did not provide the foundation to support the findings required by OO3m. The applicants assert that, on its proper construction, OO3m will be satisfied only where the nature and extent of any inconsistencies between the height, scale and form of the development and the amenity, character and community expectations intended for the precinct have been identified, a determination is made whether there is a community need and an economic need for development of that inconsistent height, scale and form and, lastly, a determination whether the development is only of such greater height, scale and form as will satisfy that need.
It is of note that this construction of OO3m was not advanced by the applicants before the P&E Court where the applicant abandoned the submission that OO3m should be constructed on the basis that the words “need for the development” means “need for the proposed development on the site”.
The construction of OO3m now contended for by the applicants that does not treat OO3m as containing alternatives is disputed by the Council and the second respondent in reliance on the approach to the construction of a similar provision in Abeleda at [85]-[87].
An overall outcome in identical terms to OO3m was considered in Abeleda. The primary judge in that matter had made a finding that the overall outcome had been satisfied in that the proposed development was a building of a height, scale and form within community expectations that also satisfied PO1b with respect to height, as it was aligned to community expectations about the number of storeys to be built, it was unnecessary for the primary judge in that appeal to consider whether compliance was achieved through the alternative requirement in the relevant overall outcome which was a community and economic need for the proposed development. That approach to the construction of an overall outcome such as OO3m reflects the language of the provision that provides alternatives for the satisfaction of that overall outcome. The construction advanced by the applicants must be rejected.
The third asserted error is concerned only with the alternative basis that the primary judge advanced (at [49] of the reasons) for the approval of the development application, if it were found that there was some non-compliance in the height, scale and form of the proposed development. It is true that Mr Stephens’ evidence focused on the community need and economic need for accommodation in New Farm but also on the community need and economic need for a development of the type proposed for the site. In considering community need and economic need, the terms of OO3m do not require the consideration to be narrowed to the need for the development taking place on the subject site rather than considering the community need and economic need for a development of that type in that community. There was an evidentiary basis in Mr Stephens’ evidence for the primary judge’s conclusion that the alternative limb of OO3m was satisfied, if there otherwise were found to be non-compliance in terms of the proposed height, scale and form of the proposed development. The finding that there was a community need and economic need for the proposed development was a finding of fact. The third asserted error of law is not established.
Order of the P&E Court did not reflect the reasons
The fourth asserted error arises for consideration as the applicants have been unsuccessful on the other grounds of appeal. When the reasons were published by the primary judge, the parties did not seek any amendment to the order that was set out in the published reasons and the order endorsed on the file was “Appeal allowed to the limited extent of imposing conditions to give effect to minor changes to the approved plans”. The content of that order gleaned from [50] of the reasons was the design modifications that occurred during the course of the appeal. The argument in this Court would have been avoided, if the parties had made submissions to the primary judge at the time of the publication of the reasons on the wording of the order to reflect more precisely the matters that were to be the subject of new conditions “reflective of the minor design changes”. As it is, on the hearing of this application, the respondents did not dispute that the order encompassed the matters of heritage and structural engineering, screening and waste collection.
In any case, the application for leave to appeal on this ground has been overtaken by events, as the Court on the hearing of this application received the affidavit of Mr Quirk sworn on 28 March 2023 that exhibited the second respondent’s application to the P&E Court filed on 18 January 2023 seeking a determination of the dispute over conditions for the proposed development. That application has been adjourned until the determination of the application to this Court.
There is therefore no utility in this Court engaging on this ground of appeal.
Orders
At the conclusion of the hearing of the appeal, the applicants requested that the question of costs be deferred until after the publication of these reasons.
It follows that the orders which should be made are:
Leave to appeal refused.
Costs reserved to be determined on the papers.
Any submissions that the parties wish to make on costs must be made in writing within 14 days of the date on which the reasons for judgment are published and must not exceed two A4 pages.
BOND JA: I agree with the reasons for judgment of Mullins P and with the orders proposed by her Honour.
FLANAGAN JA: I agree with Mullins P.
Clarry & Anor
Brisbane City Council & Anor [2024] QCA 39
(2014) 201 LGERA 82
The primary judge set out (at [26] of the reasons) aspects of the evidence relevant to the height, scale and form of the proposed development. In summary, the proposed development will be significantly larger in respect of all its dimensions than the existing building, including that it will be 4.7 metres higher than the existing building. The proposed development would neither be the tallest building in the LMDR2Z in Maxwell Street nor the widest. The tallest building situated at 40 Maxwell Street is located immediately adjacent to the edge of the MDRZ and the Medium density (MD) living precinct where the development within those designations is generally “more intense in terms of height, scale and form to that elsewhere in Maxwell Street”. There is a significant variance in the size of the detached housing in Maxwell Street and no discernible pattern of development or setback pattern.
The primary judge stated (at [27]-[28] of the reasons):
The question of construction relevant to the first error is directed at the primary judge’s application of these qualitative provisions of OO3m of the NPC and PO1b in priority to the quantitative provision of AO1 that is found in table 7.2.14.1.3.B that specifies the maximum building height for the LMD precinct as two storeys or a building height of 9.5 metres and the identified quantitative provisions in the LMDRZC and the MDC. The applicants submit that OO7bi of the LMDRZC and OO2hv of the MDC contemplate development of two to three storeys in the LMDR2Z and, as the number of storeys referred to in PO1b is informed by AO1 and table 7.2.14.1.3.B of the NPC, OO7bi of the LMDRZC and OO2hv and AO4.1a of the MDC all of which refer to two to three storeys, that the qualitative provisions in the overall outcomes and performance outcomes of the NPC should be construed harmoniously with those specific provisions.
The applicants’ approach to construction of the planning scheme by seeking to construe the provisions “to give effect to harmonious goals” does not give effect to the express terms of the planning scheme which contemplate that there will be inconsistencies in the application of the planning scheme and the provisions that deal expressly with addressing those inconsistencies, such as s 1.5 and s 5.3.3.4(c). The applicants’ emphasis on AO1 does not recognise that AO1 was one means by which PO1b could be satisfied and that the express terms of PO1b make it clear that there are other means of satisfying PO1b apart from AO1.
There was no error of law in the primary judge’s construction of the NPC, the LMDRZC and MDC in giving effect to the qualitative provisions of OO3m and PO1b in priority to AO1 and the other provisions that specify a height restriction for building on the site.
The significance of the height of the buildings in the proposed development in Development Watch was very different in the context of the relevant planning scheme and the location of the site than the significance of the proposed development in the subject appeal where the height of the building proposed to be constructed was 4.7 metres higher to the top of the proposed building (excluding the lift overrun) than the height of the existing building on the site in the context of the NPC and the built environment in the vicinity of Maxwell Street. Even though the relevant overall outcome in Development Watch expressly used “reasonable” to qualify “expectations of the local community” and the word “reasonable” is not found in PO1b in the NPC, it was common ground of the parties that community expectations must be reasonable based on the relevant and applicable provisions of the planning scheme construed as a whole. See Body Corporate for Lindor Community Title Scheme 29204 v Gold Coast City Council [2018] QPELR 265 at [125] and Abeleda at [89].
The primary judge’s rejection of the submitters’ expectations that the building height on the site would be limited to two to three storeys or, in the case of one submitter to four storeys, as unreasonable affected the application of PO1 of the NPC. The reasonableness of residents’ expectations as to the height of a proposed development must be judged against the whole of the planning scheme which includes that a proposed development need not comply with the height restriction in AO1 of the NPC to achieve compliance with the NPC, as s 5.3.3.4(c) of the planning scheme expressly provides that code assessable development that complies with the purpose, overall outcomes and the performance outcomes or acceptable outcomes of the code complies with the code and, as set out above, that also applies to the application of the code to impact assessable development.
It is implicit in the primary judge’s rejection of the submitters’ expectations that the building height on the site would be limited to two to three storeys or four storeys as unreasonable, that the primary judge found that the reasonable community expectations as to the height of a building on the site was in excess of two storeys and extended at least to the height of the proposed development. The fact that the primary judge rejected the submissions and lay witness statements for their unreasonableness on building height expectations on the site means that the primary judge did have regard to them and gave them no weight for the purpose of undertaking the impact assessment pursuant to s 45(5) of the Act.
The applicants do not succeed on their second asserted error.