McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council &... [2021] QPEC 42 | Case summary

s 60McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council &... [2021] QPEC 42 | Case summary | Zoe

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[23] City Plan uses zones to organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.[26] One of the mechanisms used to facilitate preferred land uses is the allocation of the category of assessment. This is a blunt planning tool that encourages development by categorising the development as either accepted development or assessable development that requires code assessment.
[24] Here, the subject land is included in the Medium density residential zone. Pursuant to s 5.3.2 and Table 5.5.3 of City Plan, a multiple dwelling in the Medium density residential zone is code assessable if it is no greater than the building height specified in a relevant neighbourhood plan; and, where a neighbourhood plan does not specify building height, five storeys. Otherwise, a multiple dwelling in the Medium density residential zone is impact assessable.[27]
[25] The subject land is in the Medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area. Table 5.9.50.A indicates that there is no change to the level of assessment for land in the New Farm and Teneriffe Hill neighbourhood plan area.
[26] The proposed development is a six-storey multiple dwelling. As such, it is impact assessable. That does not, of itself, indicate that the proposed development is of a form that is not anticipated in the Medium density residential zone, but it does indicate that the impact of the proposed development and its acceptability requires closer scrutiny.
[27] City Plan also facilitates the location of preferred or acceptable land uses in the Medium density residential zone through the application of the assessment benchmarks in the Medium density residential zone code. Section 6.2.1.3 1. records that the purpose of the Medium density residential zone is to provide for medium density multiple dwellings.[28] That purpose is to be achieved through overall outcomes for the zone role, development location and uses and development form.
[28] In terms of the height, bulk and scale of the proposed development, the Appellants allege that the proposed development is not consistent with the following overall outcomes in s 6.2.1.3 of the Medium density residential zone code:

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[42] The provisions referred to in paragraphs [23] to [41] above guide the anticipated height, bulk and scale of residential uses on the subject land and contain specific controls in relation to built form and character.
[43] The Medium density residential zone code, the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code all encourage multiple dwellings of up to five storeys. In particular, ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code reference a quantitative standard of five storeys and encourage development consistent with that standard. However, when read in the context of City Plan as a whole, the failure to deliver a development compliant with that quantitative standard does not demonstrate that the proposed development is non-compliant with the assessment benchmarks. The following five contextual considerations support that the quantitative standard referenced in ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code should not be regarded as express discouragement of a six-storey multiple dwelling absent an assessment of a specific proposal in its locational context.[44]
[44] First, there are no express provisions stating that development of greater than five storeys is not appropriate, yet in other provisions of City Plan express discouragement of that nature is provided.[45] For example, the overall outcome in s 9.3.14.2 2.h.iii. of the Multiple dwelling code requires consideration of whether a proposed development is "consistent with" five storeys. The same outcome also requires the height to be "appropriate to the strategic and local context". In some cases, the context may permit an adherence to the quantitative standard without causing tension with the requirement to have a height that is appropriate to the strategic and local context. In other cases, a tension may arise, suggesting that the phrase "consistent with" should be read with a degree of flexibility. It should be construed as calling for development that is compatible or harmonious with community expectations informed by those height parameters, not as calling for development that is to be no more than five storeys. If it were the intention that it be construed as an immutable standard, that could have been easily achieved. The relevant provisions are not so expressed.
[45] Second, the New Farm and Teneriffe Hill neighbourhood plan code, which provides finer grained planning at a local level, only includes the quantitative standard of a maximum height of five storeys and 15 metres in acceptable outcome AO1. This is of note as compliance with acceptable outcomes is not mandated. As was observed by His Honour Judge Williamson QC in Northern Properties Pty Ltd v Brisbane City Council & Anor,[46] the structure of City Plan is such that compliance with a performance outcome can be achieved by demonstrating compliance with either the acceptable outcomes applying to the performance outcome or the performance outcome itself. The Queensland Court of Appeal made similar observations about the non-mandatory nature of acceptable outcomes in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[47] The Honourable Justice Brown observed:

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[46] Here, it is of note that performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code does not stipulate a height maximum.
[47] Third, while the references to five storeys provide strong guidance on what the community might expect, other provisions indicate that the appropriateness of the height, scale and form will also be informed by other facts, such as their consistency with the amenity and character existing in, and intended for, the area.[49] For example, the overall outcome in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code requires consideration of the consistency of the height with the intended character of the Medium density residential precinct.
[48] Performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code also reinforces that the appropriateness of the height is not to be judged only by reference to whether the proposed development is limited to five storeys in height.[50] That performance outcomes requires development to be "aligned with" community expectations about the number of storeys to be built, but also requires development to be of a height, scale and form that achieves the intended outcome for the precinct and contributes to a cohesive streetscape and built form character. The community expectations would be informed by the maximum number of storeys referenced by acceptable outcome AO1, but they are also informed by other matters.
[49] This approach to construction of community expectations is consistent with long recognised principles applied by this Court that regard must be had to the physical environment of the locality, including all existing development, even if the existing development was approved under an earlier planning regime. To disregard existing development because it was approved prior to the planning controls would attribute to the area a character that it simply does not have.[51]
[50] A fourth contextual consideration is that the City Plan provides a pathway to lodge an impact assessment development application for buildings of a height greater than five storeys on land in the Medium density residential zone. Further, it does not prescribe a planning consequence for multiple dwellings that require impact assessment because they fall outside the encouraged height range. In this regard, the observations of His Honour Judge Williamson QC in Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors[52] are apposite. His Honour states that:

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[62] The architects gave evidence about the attributes of the built form and streetscape that inform the character of the locality.[58] They note that the subject land is located at the southern end of the New Farm peninsular where it adjoins Merthyr Park on the edge of the Brisbane River. It is located on Oxlade Drive, a local two-lane road. To the northeast, Oxlade Drive extends from its intersection with Brunswick Street and follows a curved alignment that reflects the path of the Brisbane River. It extends to the southwest before diverting to the northwest to intersect with Sydney Street and the commencement of Griffith Street.
[63] The properties along the curved southwest to southeast frontage to Oxlade Drive form a contiguous strip of properties that adjoin Merthyr Park along the edge of the Brisbane River. The architects identify that the properties have varying frontage widths, ranging from narrow widths of 15 to 20 metres to wider lots with frontages up to 30 metres. Three lots have frontages of over 50 metres, including the lot at 148 Oxlade Drive containing the development known as "Kirribilli".
[64] The existing development on the properties varies but is generally comprised of multiple dwellings ranging in height from two storeys to, typically, four to five storeys, with a small number of buildings at six to nine storeys. Two notable exceptions are the Kirribilli development that adjoins the subject land to the east, which is 11 storeys in height, and the "Glenfalloch" development located on the corner of Oxlade Drive and Sydney Street, which is 14 storeys in height.
[65] The opposite side of Oxlade Drive has built form and streetscape attributes of a different character. Its character is modulated by a series of intersecting streets that extend from Oxlade Drive to the northwest. The properties located between the intersecting streets are typically smaller in area. They have varying shapes and frontage widths due to the angled intersecting streets. Despite that, the architects agree that those properties generally accommodate a more consistent built form than the existing development on the southwest and southeast side of Oxlade Drive. The building heights are typically limited to one and two storeys, although there are exceptions that include three and four-storey multiple dwellings towards the northeast end of Oxlade Drive. The architects agree that the one and two-storey developments comprise houses and multiple dwellings, with many having a refurbished and adapted "character" style that reflects the "timber and tin" heritage of the locality.
[66] In the immediate vicinity, and northwest, of the subject land, the streetscape includes a new five-storey development that adjoins the subject land at 160 Oxlade Drive. This adjoining development is setback from the Oxlade Drive frontage behind a driveway, paving and limited landscaping. The frontage is open to the street, where it merges with the adjoining verge. Further to the northwest, there is a contemporary two-storey dwelling, and two-storey replica "character style" dwellings at 162 and 164 Oxlade Drive. At 166 Oxlade Drive, there is a relatively recently constructed multiple dwelling known as "Platinum". It comprises buildings of five and seven storeys. To its northwest, on the corner of Oxlade Drive and Sydney Street, is the older[59] 14-storey development that is known as Glenfalloch.
[67] To the east, the streetscape in the immediate vicinity of the subject land includes the adjoining development at 148 Oxlade Drive, known as Kirribilli. It is an older 11-storey multiple dwelling that has an approximate 60-metre frontage to Oxlade Drive and an 83-metre frontage to Merthyr Park. A tennis court on the property adjoins the common boundary with the subject land but is largely screened from view along the street frontage by vegetation. The property's frontage is otherwise partially screened from the view from the street by a wall behind which there is a driveway, carparking and planter boxes. Further to the east of Kirribilli is a vacant property, followed by multiple dwellings at 136, 130 and 128 Oxlade Drive that are four, five and seven-storeys in height respectively.
[68] Merthyr Park adjoins the rear of the subject land along the river frontage. The park extends from Sydney Street to the Merthyr Bowls Club site. It is generally characterised by an informal linear strip of mature trees that extend along the park within a grass area that adjoins a pedestrian walkway adjacent to the Brisbane River. It includes limited street furniture and a small children's playground. The park is also characterised by the vertical edge of development that adjoins its northern side and the contrast that this edge provides to the open character of the view to the south across the river to the development on the opposite bank.
[69] I accept the above evidence of the architects about the built form and streetscape features of the locality. It accords with the description provided by the visual amenity experts and the town planners. It also reflects what is shown in the many photographs of the area and what I observed on the site inspection.[60]
[70] Each of the visual amenity and architecture experts express a view about the existing character of the locality.
[71] Mr Richards' opinions about the existing character of the locality are expressed in very similar terms in each of the Visual Amenity Joint Experts' Report and the Architecture Joint Experts' Report. Mr Richards says that the character on the northern side of Oxlade Drive is generally consistent with its designation in the Low-medium density residential zone. With respect to the southern side, Mr Richards does not provide a description of the overall impression of character provided by the existing built form. Instead, he focuses on each individual development and provides a detailed description of the developments known as Glenfalloch, Platinum, Kirribilli, the two dwelling houses at 162 and 164 Oxlade Drive, and the multiple dwelling at 160 Oxlade Drive. His description of those developments provides little insight into the visual impression created by the individual developments, let alone the overall character of the locality. Rather, he examines the metrics of each development such as its footprint, site cover, plot ratio, setbacks, and percentage of landscaped area.
[72] The average person does not perceive character as a series of metrics such as plot ratio and site cover. The character of a locality and of a streetscape is the aggregate impression formed having regard to the individual features and traits of the development in the street or locality.[61] As such, the evidence of Mr Richards about the existing character is unhelpful. It does not disclose a reasoning process that assists me to move from the primary evidence of what is in the locality to a conclusion about the existing character of the locality and the streetscape.[62] It does not assist me to understand what the average person walking the street and looking about would perceive about the character of the locality and the streetscape.[63]
[73] By way of contrast, Mr Powell and Dr McGowan provide a description of the overall impression of the existing character that is derived from the existing built form and streetscape elements.
[74] Mr Powell opines that the taller buildings on the southern side of Oxlade Drive create a wall of development that, when combined with associated landscaping, tends to obstruct clear views of the Brisbane River from Oxlade Drive. The wall of development provides a noticeable contrast with the predominantly low-rise form on the northern side of Oxlade Drive. Mr Powell says that when travelling southwest along Oxlade Drive toward the subject land, Kirribilli is apparent at the centre of the vista for the 350-metre journey between Turner Avenue and Hazelwood Street, until turning towards the subject land, at which stage Kirribilli and Glenfalloch both clearly come into view. In terms of the journey in the opposite direction, travelling south along the final 120-metre leg of Griffith Street toward Sydney Street, Glenfalloch dominates the centre of the vista. As one passes Glenfalloch and travels the 150-metre journey from Sydney Street south-east along Oxlade Drive toward the subject land, Kirribilli remains at the centre of the vista. Mr Powell supports this description of the existing character with photographs of the area.
[75] Dr McGowan describes the general locality as exhibiting a varied character. He attributes the varied character to four factors. First, the contrast in street patterns. The northern and eastern part of the southwestern corner of New Farm (being an area defined by Dr McGowan as south of Merthyr Road, west of Brunswick Street and otherwise defined by the Brisbane River) has a regular grid street pattern. Conversely, the street pattern in the western and southern part of the area is less regular, with deviations in street alignment, including in the alignment of Oxlade Drive. Second, the land between Oxlade Drive and the river is characterised by medium-high rise development, as opposed to the remainder of the area being characterised by predominantly low-rise development. The third factor is the range of building forms, including detached housing, attached housing and multiple dwelling units. Fourth is the range of building ages, with some prominent older buildings such as Kirribilli and Glenfalloch.
[76] More proximate to the subject land, Dr McGowan says the character of the area is defined by the distinctive difference in height and development type on each side of Oxlade Drive and the river. He explains that the river creates a discrete "fringe" between the built form and the river edge. It also informs the changes in alignment of Oxlade Drive, which runs parallel to the river edge.
[77] Dr McGowan opines that the development on the northern side of Oxlade Drive, between Hazelwood Street and Sydney Street, has a consistency in terms of building type and scale. By way of contrast, development on the southern side of Oxlade Drive exhibits a varied character. There is some consistency in setbacks to the road on the southern side of Oxlade Drive, but the consistency is disguised to varying degrees by the street trees and the changing alignment of the road. Otherwise, there is a variation in building heights, building separation, relationship of building bulk to site area (and the associated space around the buildings), building type and form, width of façade presented to Oxlade Drive, and setbacks.
[78] In support of his overall assessment, Dr McGowan describes the visual contribution certain buildings make to the overall character. He notes that the Glenfalloch and Kirribilli buildings are prominent in the local area because of their much greater height, width, and broad facade presentation to Oxlade Drive. Glenfalloch is 14 storeys high and about 47.5 metres long. Kirribilli is 11 storeys high and about 37.5 metres long. The low site cover of Glenfalloch and Kirribilli and the open space behind them creates a space around the buildings that contributes to their prominence. Dr McGowan opines that the stepping form of the Platinum building (at 168 Oxlade Drive) is not replicated in the local area. It assists in providing a visual transition between Glenfalloch and the low-rise development further south. The Platinum building has a noticeably greater front setback compared to others on the southern side of Oxlade Drive between Sydney Street and Hazelwood Street. The two houses at 162 and 164 Oxlade Drive are narrow compared to the other buildings on the southern side of the street. The recent development at 160 Oxlade Street is five storeys. Dr McGowan notes that it is narrower than Platinum and wider than the nearby houses. It also has a higher site cover than Platinum.
[79] Like Mr Powell and Dr McGowan, Mr Curtis notes that the curved alignment of Oxlade Drive is relevant to the existing character of the locality. It prevents receptors from viewing the full length of the streetscape at any one time. Consequently, in Mr Curtis' opinion, the Oxlade Drive view catchment is comprised of connected segments where receptors move sequentially from one to the next. The elements within each segment are primarily viewed in relation to each other rather than as part of the entire length of Oxlade Drive.
[80] Mr Curtis says that, given the curved alignment of Oxlade Drive, the subject land is located within an approximate visual catchment that extends between the intersection of Oxlade Drive with Sydney Street in the northwest and Hazelwood Street in the east. He opines that the relationship of the proposed development to the existing built form within this visual catchment will be most relevant to its compatibility with, and contribution to, a cohesive streetscape. I accept his opinion. It accords with what is apparent from the many photographs in evidence before me.
[81] Mr Curtis observes that the existing development along the southwest and southeast side of Oxlade Drive is generally more intensive and includes typical building heights of up to four to five storeys. However, he says that building heights of five to seven storeys, and up to 14 storeys, are prominent within the subject land's visual catchment. Further, Mr Curtis says that the differences in adjoining building heights are relatively abrupt in some locations, which creates a contrast in building scale. He opines that these contrasts diminish the cohesiveness of the streetscape, resulting in a discordant built form character. In contrast, the existing development on the opposite side of Oxlade Drive is generally more consistent with respect to its height, bulk, and scale. Mr Curtis opines that this results in a more cohesive streetscape along the northwest side of Oxlade Drive within the subject land's visual catchment. Mr Curtis considers that the significant differences in the general built form between the two sides of Oxlade Drive are a defining aspect of its character. He says the differences would inform the community expectations about the bulk and scale of potential development anticipated along each side of Oxlade Drive.
[82] Mr Curtis opines that notwithstanding the discordant character of the streetscape along the southwest and southeast side of Oxlade Drive and the disparity in bulk and scale between the opposite sides, the existing development along both sides of Oxlade Drive provides a vertical edge to the street that reinforces its desirable spatial character. He says, although discordant, the character is enhanced by landscaping that contributes to the scale and amenity of the street as a pedestrian space.
[83] Mr Curtis also addresses the concept of a "sense of place". It is not a defined term under City Plan. Mr Curtis opines that it refers to how a person engages with the qualities that characterise a place. He says that the spatial quality of the street, although varying, is generally well defined by a contiguous vertical edge of taller development along the southwest and southeast side of Oxlade Drive and a less robust, but still adequate, modulated edge of lower development along the opposite side of the street. Mr Curtis opines that a factor in the sense of place is the contrast between the variation of the built form on the southern side of Oxlade Drive (which includes abrupt differences in the building heights, visual character and age that result in visual discordance) with the consistency of the built form on the northern side of the street. Given the diversity of built form on the southern side of Oxlade Drive informs the local sense of place, Mr Curtis opines that the existing sense of place is likely to be relatively resilient to changes to the streetscape, provided the changes do not exceed the degrees of difference that already exist and do not exacerbate the current discordance or diminish the desirable spatial quality of the street.
[84] I accept the above evidence of Mr Powell, Dr McGowan, and Mr Curtis about the existing character of the area, the streetscape, and the sense of place. Their opinions are supported by detailed and cogent analysis and are consistent with what can be observed in the many photographs of the area.
[85] I also accept the evidence of Ms Morrissy that the area does not have a consecutive or consistent run of building heights. This is demonstrated well by the attachments in Mr Brown's report and the height comparison diagram that is included as Figure 57 in the Architecture Joint Experts' Report. There is a lot of "stepping" of the heights between buildings on the southern side of Oxlade Drive. I accept Ms Morrissy's opinion that it is a characteristic of this neighbourhood precinct.
[86] The New Farm and Teneriffe neighbourhood plan code summarises the existing character well when it refers to "New Farm's characteristic diversity of built form".

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[96] The Appellants invite me to rely on the evidence of Mr Richards generally in relation to this issue. Mr Richards addressed the issue in the Architecture Joint Experts' Report and the Visual Amenity Joint Experts' Report. His evidence on this issue in each report is largely the same. He opines that the proposed development is of a height, bulk, scale, and form that does not achieve the intended planning outcomes. There are three factors that underpin his opinion.
[97] First, as Mr Richards notes in the Joint Experts' Reports, his opinions have been informed by an understanding of the overall outcomes and performance outcomes of the Multiple dwelling code and the finer-grained, place-specific provisions of the New Farm and Teneriffe Hill neighbourhood plan code. Mr Richards exposes the basis of his understanding by extracting what he regards as those parts of City Plan that are most relevant to the issues,[67] emphasising those provisions on which he relies, and providing an explanation about his approach to their interpretation. When one compares Mr Richards' record of the provisions of City Plan to the planning scheme itself, it is apparent that Mr Richards' record is littered with errors. During cross-examination, Mr Richards sought to characterise the errors as transcription errors of little significance. I disagree with that characterisation. It is apparent from Mr Richards' analysis of the provisions that accompanied the extracts that these errors infected his understanding of the assessment benchmarks. Further, as was revealed during cross-examination, in informing himself about the effect of the assessment benchmarks, Mr Richards' did not read the whole of City Plan and was not aware of material considerations that inform its meaning.[68] Mr Richards' errors were material. They leave me with no confidence about the reliability of his ultimate opinions regarding compliance.
[98] The second factor that underpins Mr Richards' opinion about the proposed development is his description of the locality. As I have already observed in paragraphs [71] and [72] above, I do not find Mr Richards' evidence about the existing character of the locality to be helpful.
[99] The third factor that underpins Mr Richards' opinion about the acceptability of the design of the proposed development (and its impact on character) is his analysis of the design attributes of the proposed development. The description provided by Mr Richards is rudimentary. He notes that the overall height is 24 metres because of floor-to-floor heights that are 3.3 to 3.9 metres. He says this makes the building visually equivalent to an eight-storey building. He does not explain the basis for this conclusion. On the premise that the proposed development appears as an eight-storey building, not five-storey, Mr Richards opines that the proposed development does not reflect community expectations and makes no contribution to the amenity of the neighbourhood plan area.
[100] I find it difficult to accept that the residents of the area and other members of the community have an appreciation of the height in metres of a "typical" five-storey, six-storey, seven-storey, or eight-storey building, or that they would have an appreciation of the height of the various buildings in metres as they walk or drive through a neighbourhood.
[101] For the reasons provided in paragraphs [71] and [72] and [96] to [100] above, I do not find Mr Richards' evidence to be persuasive. I do not accept his opinions.
[102] Whether the proposed development will be compatible with, and contribute to, a cohesive streetscape and the locality's character and sense of place was also addressed in the Architectural Joint Experts' Report by Mr Curtis. He provides a detailed explanation of the basis of his opinion. It includes his analysis of the existing character of the locality, the streetscape, and the sense of place and its sensitivity to change. I have already outlined his relevant evidence in that regard, and my reasons for accepting it, in paragraphs [62] to [69] and [79] to [84] above. Mr Curtis also provides a detailed account of the qualitative architectural attributes that characterise the proposed develop[69]nt's function, form, and appearance.69
[103] In relation to its form and appearance, Mr Curtis explains that the ground storey of the proposed development is configured to integrate with the vehicle driveway and the communal recreation area. This is achieved by extending a pergola structure across the north facing façade at level 1. He says the inclusion of the pergola widens the appearance of the built form at ground level to create a "podium like" form that provides a legible base to the building. Mr Curtis opines that this "podium" provides a human scale interface that is largely open to the street and which allows the ground storey to address and engage passing pedestrians. The main entrance to the building is clearly visible and is framed by specimen trees set in raised planter boxes. This provides an attractive transition between the private and public realms. Mr Curtis opines that the cascading vegetation on the pergola and the planter boxes on the storeys above complement the frontage landscaping and contribute to the landscape character and amenity of the street.
[104] Above the "podium", the stack of consistent floor plates creates an extruded form that is capped at level 5 by the setback of the external walls and the fringe of cascading landscaping. Mr Curtis explains that this results in a tripartite composition of the façade. He says the stepped profile of the tripartite composition modulates the height of the built form to provide a gradation and fragmentation of the proposed development's bulk. He opines that it also provides a visual reference in the built form that reflects the varying heights of other existing development in the streetscape. These references will assist the proposed development to integrate into the streetscape and facilitate a transitional relationship between the varying building heights to achieve a more cohesive streetscape appearance.
[105] Mr Curtis opines that, at a height of six-storeys plus a roof terrace, the proposed development does not alter the existing visual dominance of Kirribilli and Glenfalloch. Mr Powell and Dr McGowan express similar views. Their views in this respect were not challenged. Figures 52 and 57 of the Architecture Joint Experts' Report and the photomontages support the opinions expressed by Mr Curtis, Mr Powell, and Dr McGowan. The plans show that the upper level, including the pergola on the roof terrace, involves a notable step in from the edges of the building and that the uppermost projection of the built form and landscaping sits well below the topmost projection of Kirribilli. I accept this evidence of Mr Curtis, Mr Powell, and Dr McGowan.
[106] Even though the proposed development does not alter the existing visual dominance of Kirribilli and Glenfalloch, it has a height that relates well to Kirribilli and the other buildings in its vicinity. The proposed development replaces the jarring visual difference between the existing single-storey houses and the 11-storey Kirribilli with a building that mitigates the visual discordance caused by the differences in height on the southern side of Oxlade Drive. It does so by reinforcing the gentle gradation and transition in height introduced by recent nearby developments. As is depicted in the height comparison diagram that is figure 57 of the Architecture Joint Experts' Report and the cross section of Oxlade Drive at figure 5 of the Joint Town Planning Report, the built form of the proposed development will result in a series of gradual steps in the height of built form in the subject land's visual catchment. Relevantly, the elements of the built form that provide the gradual steps are:

[246]

[110] Mr Curtis' evidence was not meaningfully challenged. During cross-examination, Counsel for the Appellants sought to marginalise Mr Curtis' evidence on the basis that the same design attributes could be employed in a building that was lower in height and which had greater setbacks. That line of questioning is unhelpful. It has long been recognised by this Court that it is not the function of the Court to redesign a development. The Court's function is to pass judgment on the development that is proposed.[78]
[111] Mr Curtis' opinions are supported by that which is depicted in the plans and photomontages. It is also consistent with the evidence of Mr Powell and Dr McGowan.
[112] Mr Powell opines that the proposed development will maintain a complementary visual relationship with other buildings in the vicinity. He says that it will do so by providing for a transition of building height between immediate neighbours to the east and west while stepping back the upper level from dwelling houses across the road to the north. He says the proposed development contributes to a cohesive streetscape character as it maintains Kirribilli and Glenfalloch as the dominant building forms at or near the centre of vistas travelling along straight sections of Oxlade Drive and Griffith Street. It also adopts front boundary and streetscape setbacks up to the fifth storey that are consistent with the immediately adjoining neighbour to the west, while stepping back the sixth storey consistent with the setback of the 11-storey neighbour to the east. Mr Powell explains the basis of his opinions well by reference to the plans and photomontages.
[113] Dr McGowan expresses similar opinions. He opines that the proposed development will achieve appropriate compatibility with the existing and intended character of the area as it will reinforce the general structure of the local area, particularly the clear difference in building scale and form on either side of Oxlade Drive. He says the proposed development will sit comfortably in the context of more intense built form on the southern side of Oxlade Drive, where there are noticeable variations in terms of building height bulk and scale.
[114] In addition, Dr McGowan opines that the proposed development will achieve compatibility with development parameters on the southern side of Oxlade Drive and will achieve a harmonious visual relationship with adjacent development. In that respect, he makes three relevant observations. First, the proposed development has front setbacks that are consistent with the five-storey development at 160 Oxlade Drive, as well as the two houses at 162 and 164 Oxlade Drive. It is also consistent with the front setback for Kirribilli. The consistency is illustrated on the plans. Second, the length of the proposed development is similar to the five-storey development at 160 Oxlade Drive and Platinum. The width of the façade of the proposed development facing Oxlade Drive is greater than that of the development at 160 Oxlade Drive, but less than Platinum, and substantially less than Kirribilli and Glenfalloch. Third, the proposed development will achieve a scale relationship with Kirribilli and 160 Oxlade Drive. The additional height will not cause the building to be incompatible with the other built form on the southern side of Oxlade Drive, particularly as the recessed upper level will not be a prominent part of the building. This is evident in the photomontages.
[115] I accept the evidence of Mr Curtis, Mr Powell, and Dr McGowan. They provide cogent explanations for their opinions, which are supported by what is evident in the plans and photomontages.

[253]

[120] These figures reveal that the front setback, for part of the building, is less than the minimum of six metres from any road alignment stipulated in acceptable outcome AO10 of the New Farm and Teneriffe Hill neighbourhood plan code. The side and rear boundary setbacks are also slightly less than that sought in the acceptable outcomes.
[121] The proposed development has a gross floor area of 2,531.5 square metres and a site cover of 676.9 square metres (equating to 61.7 per cent of the subject land). This is greater than the standard referenced in acceptable outcome AO14 of the Multiple dwelling code, being 45 per cent. Despite that, the proposed development includes significant area dedicated to landscaping and open space. There is landscape open space of 504.6 square metres (equating to 46 per cent of the area of the subject land), deep planting of 146.1 square metres (being 13.3 per cent of the subject land), communal open space of 235.7 square metres (or 21.5 per cent of the subject land), and private open space of various sizes between 30.7 square metres and 197.9 square metres.
[122] It is apparent from the analysis of the metrics of the proposed development above that some of the built form parameters do not comply with acceptable solutions in City Plan. However, these non-compliances are not determinative of the outcome of the appeal. Rather, they highlight the need to consider the qualitative outcomes sought with respect to setbacks, building separation and site cover.
[123] Here, although there is general consistency in front setbacks on the northern side of Oxlade Drive, there is considerable variation in front setbacks on the southern side. The variation in setbacks on the southern side of Oxlade Drive is part of the character of the streetscape. The streetscape on the southern side of Oxlade Drive does not admit of a design solution that would provide uniformity or compatibility with all setbacks. Nevertheless, I am satisfied that the proposed development achieves a street setback that is compatible with the existing setbacks and which appropriately relates to the existing streetscape and setback pattern. As is explained by Mr Powell, the proposed development does so by adopting front boundary and streetscape setbacks up to the fifth storey that are consistent with the immediately adjoining neighbour to the west, while stepping back the sixth storey to be consistent with the setback of the 11-storey neighbour to the east. I accept his evidence. I also accept the evidence of Dr McGowan in paragraph [114] above. The evidence of Mr Powell and Dr McGowan is supported by what is depicted on the plans. Further, the details depicted on the proposed site plan, including the building footprint of the buildings nearby, and the photomontages demonstrate that the visual impact of the proposed development having a smaller setback than that of Kirribilli is disguised by the bend in Oxlade Drive and the proposed landscaping. In those circumstances, I am satisfied that the front setback appropriately relates to the existing streetscape and setback pattern and is sufficiently compatible with existing setbacks in the area. It complies with performance outcome PO10 of the New Farm and Teneriffe Hill neighbourhood plan code.
[124] Further, having regard to the photomontages and photographs of the area, the north elevation (which provides a visual depiction of the front of the building), the evidence of Mr Curtis referred to in paragraphs [103] to [109] above, the evidence of Mr Powell referred to in paragraph [112] and [123] above and the evidence of Dr McGowan in paragraphs [77], [78] and [114] above, I am satisfied that the proposed development complies with performance outcome PO9 of the Multiple dwelling code. It provides a front boundary setback that:

[260]

[127] The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.1.3 4.a. of the Medium density residential zone code on the basis that it is not located on a suitable site.
[128] The subject land consists of three separate lots that have a total combined area of 1,097 square metres. It is trapezoidal in shape, with a narrower (24 metre) frontage to Oxlade Drive and a wider (30 metre) frontage to Merthyr Park and the Brisbane River. There is a gentle fall across the subject land towards the Brisbane River. The existing dwellings on the subject land are not protected under City Plan, nor is the existing landscaping. It is ripe for redevelopment.
[129] The locational attributes of the subject land support its suitability for medium density residential development. The subject land is located within the inner-city suburb of New Farm. It adjoins Merthyr Park. It has a high level of accessibility to transport options. It is proximate to the extensive pathway network in the adjoining Merthyr Park and to a ferry link (as is evident from the photomontages in Exhibit 3). The high level of accessibility of the subject land and its consequent suitability for medium density residential development is reflected in the finer-grained planning for the area.[80]
[130] The Appellants do not explain why these attributes of the subject land and its location are demonstrative of it not being a suitable site for the proposed development. They do not they identify any other site attributes that support their allegation that the site is not suitable.
[131] The Appellants submit that the apartments at the western end of Kirribilli have been designed to take advantage of river views. This is said to be a significant feature of the design of that building. Having regard to that design feature of Kirribilli, the Appellants submit that the proposed development is not located on a suitable site.
[132] The Appellants do not explain how the design of Kirribilli affects the suitability of the subject land for medium density residential development. The design of Kirribilli may be relevant to assessment of acceptability of the design of the proposed development, but I do not accept that it is relevant to the suitability of the subject land for medium density residential development.
[133] I am satisfied that the subject land is a suitable site for the proposed development.

[262]

[134] The assessment of whether the height, bulk and scale of the proposed development acceptably achieves the planning outcomes sought in the assessment benchmarks requires an evaluative judgment.[81]
[135] For the reasons set out above, I am satisfied that the proposed development is a well-designed, location-responsive medium density residential development. Its height, bulk, scale, and form has been considerately tailored to its specific location. It reflects the character of the area in which it is located. It appropriately responds to the characteristics of the subject land, as well as the height, bulk, and nature of adjoining buildings. The recessed upper storey ensures the proposed development co-exists comfortably with dwelling houses on the opposite side of Oxlade Drive. The height of the proposed development improves the cohesiveness of the streetscape and built form character of the area by replacing the visually jarring steps that presently exist with a gradual transition in height.
[136] At six storeys in height, the proposed development is greater than the five storeys encouraged in the overall outcomes in ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code. Despite that, when the requirements of City Plan are read as a whole[82] and the proposed development is considered in its context, I am satisfied that its height is appropriate.
[137] It is apparent from the evidence of the town planners, and the plans, that the proposed development does not achieve several of the acceptable outcomes in the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code. They include acceptable outcomes with respect to front and rear boundary setbacks, side boundary setbacks, building separation, and site cover. Those non-compliances are immaterial in this case because I am satisfied the proposed development achieves the planning outcomes sought in the associated performance outcomes.
[138] Overall, I am satisfied that the proposed development achieves the planning goals with respect to height, bulk, scale, and form in the relevant assessment benchmarks, namely:

[279]

[153] The Appellants concede that the loss of views from lower levels of Kirribilli is not unacceptable. However, they say that the proposed development will cause significant impacts to the visual amenity of units on the western side of Kirribilli from level 6 to level 9 (being the seventh to tenth storeys). This submission is premised on their assertion that, absent a community and economic need for the proposed development, the reasonable community expectations are for a building that is five storeys and 15 metres high. I do not accept the premise for the submission. For reasons already provided, I am of the view that the height, bulk, and scale of the proposed development accords with reasonable community expectations for development on the subject land. As such, it is not necessary for Azure Development Group to demonstrate a community and economic need for the proposed development.
[154] Although I do not accept the premise of the Appellants' allegation of non-compliance, it is nevertheless appropriate that I consider whether the proposed development results in an unacceptable loss of views having regard to the evidence about the extent of impact.
[155] It is uncontroversial that the proposed development does not affect views to and from any of the landmark sites identified in Figure a of the New Farm and Teneriffe Hill neighbourhood plan code. The relevant views to be considered are those to and from the river.
[156] Each of the Appellants provided a statement about the views that they enjoy and their personal expectations with respect to those views.
[157] Mr McKay is the owner and occupier of apartment 704 in Kirribilli. It is the western facing apartment on level 7. In his statement, Mr McKay says he was attracted to the property by its large living area with its magnificent views of the river and city. He says the views are apparent as soon as you walk through the front door. He describes them as 180-degree views from his main living room, spanning from north of the Story Bridge to east of Mowbray Park. He says the views are captured through a bank of windows along the entire western wall that cover more than half of the height from floor to ceiling. He expresses concern that the proposed development will change the whole light and airy feel of the apartment.
[158] Mr Panozzo is the owner and occupier of unit 903 in Kirribilli. Unit 903 is also located on the western side of the Kirribilli building. Like unit 704, it has expansive river views from the rear balcony. Mr Panozzo explains that, from the unit, he and his wife enjoy watching the boats on the river and the view of the central business district during the day. At night, he says that they enjoy spectacular views, including that of the Story Bridge. He is concerned that the proposed development will obscure his current outlook of the river and the Merthyr Park green space.
[159] Mr Jensen lives at unit 801 on the ninth floor of Kirribilli. He was attracted to buy at this location because of the amount of light the unit received and the views it enjoyed. He expresses concern that the proposed development will completely obstruct the views to the west that he has from his balcony on the northern side of Kirribilli. From that balcony, Mr Jensen says he can see the river to the east and the west.
[160] The Appellants also tendered statements from Mr Woods and Mr Lane.
[161] Mr Woods is the owner of unit 803 (which sits on the floor between units 704 and 903). It is on the western side of Kirribilli. Mr Woods became the owner of the unit after the Council approved the proposed development and was aware of the approval at the time of purchase. Despite that, he is now concerned that the proposed development will severely impact the views from his property.
[162] Mr Lane is an owner of the dwelling house at 131 Oxlade Drive, which is diagonally opposite the subject land. He is concerned that the proposed development will "wall-off" part of his connection to the river.
[163] In addition to their common concern about loss of views, each of the residents of the area who gave evidence explained that they had an expectation that any development on the subject land would be limited to five storeys and 15 metres in height.
[164] Each of Mr Richards, Mr Powell and Dr McGowan gave expert evidence about the likely impact that the proposed development would have on the views enjoyed by residents of Kirribilli.
[165] Mr Richards opines that the loss of views is substantial. His opinion is premised on the difference in impact that would be occasioned by a hypothetical "compliant" development limited to 15 metres in height. This approach is unhelpful.[97] I do not accept the evidence of Mr Richards.
[166] Mr Powell opines that the proposed development will not unreasonably impact views to the river from Kirribilli. His opinion is informed by six matters. First, he says the proposed development is well-separated from Kirribilli. Second, the shape and orientation of the subject land, in addition to the alignment of the building on the subject land, forces the proposed building to step further away from Kirribilli as it extends towards the river (up to 25 metres away). Third, the proposed development will not impact the southerly river views from Kirribilli. Fourth, part of the westerly river view currently obtained across the subject land by residents of Kirribilli at or below level 6 would be obstructed by a code assessable building of 15 metres in height on the subject land. Fifth, the upper levels of Kirribilli (levels 8-10) are configured and oriented such that the river views from level 10 are largely unimpacted and the view of the river when one first enters apartments on levels 8 and 9, that is the view via the bedroom balcony to the south, is unimpacted. Those floors are also elevated enough to continue to achieve westerly views to the river and views of parts of the riverbank opposite. Sixth, the part of the proposed development that extends above 15 metres in height is likely to have the greatest impact on the westerly views from level 7 of Kirribilli. Nevertheless, the substantial building separation and the orientation of the respective lots necessitated by the bend in the river has the consequence that the residents will maintain views of the open water and the banks of the river. The proposed development also achieves a degree of transparency and provides reflection of river views through the rear open deck and windows, which are angled away from Kirribilli. The proposed development would not impact the more expansive river views available via the southern balcony doors.
[167] Dr McGowan agrees with Mr Powell in this regard. I accept their evidence. It accords with what is depicted in the photomontages prepared by Mr Elliott, including the photographs and photomontages from the living room, kitchen, and southern balcony of unit 704 and from the living room and southern balcony of unit 903 of Kirribilli. Mr Elliott's evidence was unchallenged, and I accept the photomontages are an accurate visual depiction of the proposed development from the relevant vantage points.
[168] The photomontages show that the proposed development will be visible from the rear balcony of unit 704, but the residents will maintain expansive river views. Although part of the proposed development will come into view through the living room windows, a substantial proportion of the river views will still be available. During cross-examination, Mr McKay conceded that he would still enjoy good river views when standing closer to the windows than the position of the photographer for the photomontages.
[169] Like for unit 704, part of the river views along the western windows of unit 903 will still be available, even though part of the proposed development will come into view. As was accepted by Mr Panozzo during cross-examination, the extent of river views would be even more expansive than that shown in the photomontage as the viewer moves closer to the living room windows.
[170] Unit 801 is located on the eastern side of the Kirribilli building. It enjoys excellent river views from the living and dining areas. It is apparent from the orientation of the building and the location of that unit in the building that those views would not be affected by the proposed development. Any loss of river views will only be those from the northern balcony, which also has views of the central business district and the Story Bridge.
[171] As for Mr Lane, any current river views from Mr Lane's dwelling house would likely be affected by any multiple dwelling development on the subject land, even if it were limited to five storeys and 15 metres in height.
[172] I accept that the concerns of the residents about the impact of the proposed development on their views of the river are genuinely held. The proposed development will result in the partial loss of an attractive view. Despite that, the Appellants' expectations about the extent of views they would maintain are out of step with the effect of City Plan when read as a whole. Further, the evidence does not support the Appellants' submission that the impact will be significant and unacceptable.
[173] I am satisfied that the Appellants (and Mr Woods) will continue to have excellent river views, even if the proposed development is approved. In the circumstances, the loss of part of their river views caused by the proposed development does not pose a material, undue impact. The proposed development will maintain views to and from the river to an appropriate extent.
[174] For the reasons provided above, I am satisfied that the proposed development complies with the relevant assessment benchmarks with respect to maintenance of views.

[292]

[179] The Appellants submit that the extent of the impact upon views is informative with respect to the impacts upon privacy. They say that the absence of built form at the height of the upper levels of Kirribilli is such that its residents enjoy the views without any impact upon privacy. They assert that the introduction of the proposed development into that space will unacceptably impact upon privacy. They rely on three matters to support their submissions. First, the photomontages show that there are lines of sight between the living areas of the proposed development and the living areas and verandas of the upper levels of Kirribilli. Second, in relation to the lower levels of Kirribilli, Mr Richards identifies that there are large windows to habitable rooms on the side elevations within three metres of the boundary. The windows are not screened and overlook 160 Oxlade Drive and Kirribilli. Third, Mr Richards says there are windows on levels 2 to 5 in the proposed development that enable views towards the Brisbane River that are over the private tennis court and outdoor recreation area of Kirribilli. The Appellants complain that this results in unacceptable overlooking of the tennis court.
[180] This is another instance where the Appellants' submissions reveal that their expectations are unreasonable. City Plan does not contemplate that land in the Medium density residential zone would be developed in a manner that would prevent any lines of sight to adjacent buildings and any overlooking of adjoining land. To the contrary, it is apparent from the acceptable outcomes that privacy will be protected to an appropriate degree if development adopts identified placement and design measures. Those measures include building separation as specified in Table 9.3.14.3.F of the Multiple dwelling code. It is apparent from that Table that the extent of building separation considered acceptable varies at different levels of the building, with the minimum separation distance increasing for the higher levels of the building. The minimum separation specified is also greater where there are facing habitable rooms or balconies as compared to that stipulated for that part of the building where there are habitable rooms or balconies facing non-habitable rooms or blank walls, or for that part of the building comprising non-habitable rooms or blank walls.[100] The acceptable solutions also contemplate that appropriate visual privacy can be achieved by offsetting balconies and habitable rooms or through selective screening.[101]
[181] In forming his opinion that the privacy and overlooking impacts are unsatisfactory, Mr Richards appears to have ignored these matters. These matters were considered by Mr Powell and Dr McGowan, whose evidence is consistent with details evident on the plans of the proposed development.
[182] On the western side of the proposed development, adjacent 160 Oxlade Drive, the habitable rooms on levels 1 to 3 only have one side-facing window on each level. They are located toward the rear of the proposed development and positioned to take in oblique views of Merthyr Park. The central side-facing bedroom on level 4 only has one window. It overlooks an inaccessible part of the 160 Oxlade Drive roof and does not overlook any habitable spaces.
[183] In respect of the potential for overlooking to the east, towards Kirribilli, it is relevant to note that there is a substantial building separation of between 17 metres and 25 metres between the proposed development and the Kirribilli building. This is, in part, informed by the location of a tennis court on the site of the Kirribilli building, between the proposed development and the Kirribilli building. The closest part of the proposed development to the Kirribilli building (being that with a building separation of 17 metres) is a blank wall that is set back three metres from the boundary. This setback is consistent with the applicable acceptable outcome. Further, the view from the side-facing bedroom window on each of levels 1 to 4 is directed approximately four metres south of the southern-most corner of Kirribilli.
[184] Having regard to those matters, I readily accept Mr Powell's opinion that the placement and design of the proposed development is well-considered and does not result in any unreasonable overlooking to habitable rooms or balconies nor have an unacceptable impact on the privacy of residents of the adjoining buildings.
[185] The Appellants' complaint about overlooking of the tennis court is also unreasonable. It is apparent from photographs taken from Merthyr Park that the tennis court on the Kirribilli site is readily visible to the public from Merthyr Park.
[186] For the reasons provided above, I am comfortably satisfied that the proposed development complies with the relevant assessment benchmarks with respect to amenity impacts insofar as they relate to privacy and overlooking.

[308]

[204] This condition is consistent with the requirements in performance outcome PO30 of the Multiple dwelling code. That performance outcome deals specifically with deep planting, whereas performance outcome PO7 deals with landscaping as part of an outcome designed to protect amenity of lower density residential areas bordering medium density residential areas.
[205] In addition to the identified deep planting, the proposed development provides landscaping in the front setback and in planter boxes at each level of the building.
[206] The landscaping spaces within the front setback include opportunities for tree planting. Both Mr Curtis and Dr McGowan opine that the 1.5-metre-deep raised planter box will be able to accommodate medium sized trees.
[207] In terms of the visual impact of the landscaping, Mr Curtis opines that the extent and location of the landscaping for the proposed development contributes to the landscape amenity of the setting and the cohesiveness of the built form's integration into the local area.[104] He says it will provide an appropriate interface with Oxlade Drive and Merthyr Park. In the Architecture Joint Experts' Report, he provides detailed and cogent explanations for his opinion.
[208] Dr McGowan opines that the landscaping in the planter boxes, together with the existing street trees, will soften the building's interface with the streetscape and will integrate the built form. He says it will make a positive contribution to the appearance of the streetscape.[105]
[209] I accept the evidence of Mr Curtis and Dr McGowan with respect to the adequacy of the landscaping. Their evidence is consistent with the photomontages.
[210] For the reasons provided above, I am satisfied that the landscaping within the front setback will make an appropriate contribution to the streetscape and will appropriately protect the amenity of those nearby, including those in the lower density residential areas on the northern side of Oxlade Drive. I am also satisfied that the proposed development provides adequate landscaping and deep planting overall, and in those respects, complies with the overall outcome in s 6.2.1.3 5.h. of the Medium density residential zone code and performance outcomes PO7 and PO11 of the Multiple dwelling code.

[320]

[216] There are three relevant observations that can be made about these provisions. Each tell against the construction urged by the Appellants.
[217] First, neither performance outcome PO8 nor acceptable outcome AO8 contains a height limit. If the drafters had intended "medium density" to be construed as development no more than five storeys in height, it would have been simple to include such a constraint in either of these provisions. The only provision of the New Farm and Teneriffe Hill neighbourhood plan code that contains such a constraint is acceptable outcome AO7. However, the related performance outcome (PO7) focusses on maintenance of views, not the density of the development.
[218] Second, performance outcome PO8 must be construed in the context of acceptable outcome AO8. That acceptable outcome indicates that an acceptable means of achieving a medium density development is by providing development that has a maximum gross floor area equal to the area of the site. This type of control is consistent with the ordinary construction of the term "medium density", being a parameter concerned with the density of population to be accommodated.
[219] Third, performance outcome PO8 contains two substantive requirements. One is that the building bulk and size is consistent with the medium density nature of the locality. The second requires the retention of an appropriate residential scale and relationship with other precincts. In concert, these requirements ensure that, to the extent that a taller building might be considered of an appropriate residential scale, its bulk is otherwise adjusted (for example by having a small footprint) so that the overall population density is consistent with the medium density nature of the locality. These requirements do not support the Appellants' submission about an implied limitation of five storeys.
[220] Having regard to those matters, I do not accept the Appellants' submissions. The text of overall outcome 6.a., read in its context, does not indicate that "medium density development" should be read as limiting development to that which is no more than five storeys in height.
[221] I am satisfied that the evidence establishes that the proposed development is medium density. While Mr Richards opines that the proposed development is high density development, his opinion is founded on the implied five storey height limitation. As such, I do not accept his evidence. The density of the development was also the subject of evidence from all three town planners. They are each well qualified to express an opinion about the density of the development. They all agree that the proposed development is a medium density development. Their evidence on this issue was not challenged and I accept it.
[222] Further, even if I am wrong about the proper construction of overall outcome 6.a of the New Farm and Teneriffe Hill neighbourhood plan code, the error is immaterial to the outcome. There is, nevertheless, compliance with this overall outcome as the proposed development is not such as to prevent the achievement of a predominance of medium density development in the Medium density living precinct.
[223] The Appellants' submissions about overall outcome 6.b. of the New Farm and Teneriffe Hill neighbourhood plan code are brief. Their allegation of non-compliance is premised on visual and physical links to the river "for the public". These words do not appear in the overall outcome. The Appellants do not articulate the basis on which the provision should be given a meaning other than its ordinary meaning.
[224] Further, the context in which the provision appears does not support the Appellants' construction. It is apparent from overall outcome 6.c. that when the drafters intend that there be public access, they say so. That outcome also applies to the Medium density living precinct and requires that:

[343]

[235] The above considerations are weighty matters that favour approval of the proposed development.
[236] Third, I am satisfied that the relevant matter referred to in paragraph [229](d) is established on the evidence. In this respect, I accept the opinion of Mr Schomburgk that approval of the proposed development would achieve outcomes sought by the South East Queensland Regional Plan. It does so by providing increased density of development close to infrastructure and services, housing choice and diversity and housing described in the South East Queensland Regional Plan as the "missing middle". I do not consider this to be a particularly weighty consideration, but it favours approval, nevertheless.
[237] Fourth, I am satisfied that the relevant matter referred to in paragraph [229](e) is established on the evidence, and that it supports approval. The general principles that inform and guide an assessment of need are well settled. They are conveniently summarised by His Honour Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council [113] Anor.113
[238] With respect to this matter, I was assisted by the evidence of Mr Stephens, the economist retained by Azure Development Group, and Mr Caulfield, the director of Place Estate Agents in Kangaroo Point, who specialises in sales and marketing of high-end luxury residential apartments in inner city Brisbane, particularly Kangaroo Point and New Farm. Their uncontested evidence persuades me that the proposed development will address a latent demand for premium apartments at New Farm. The greater than standard ceiling heights adopted in the design of the proposed development is an important attribute for the luxury market. Further, I accept the evidence of Mr Caulfield that the segment of the luxury market attracted to riverfront property at New Farm does not regard other riverside suburbs to be comparable alternatives. I accept the evidence of Mr Stephens that the subject land has locational attributes suited to a premium buyer market that are not easily replicated elsewhere. Although this represents only a small segment of the market, it is nevertheless a distinct and recognisable segment.
[239] The Appellants submit that this need could be met by a compliant development. This submission assumes that the public interest embodied in a planning scheme is capable of being quantified by analysing the benefits and dis-benefits of a particular hypothetical development that delivers on identified standards, such as height parameters and setbacks, so that it can then be weighed against the public interest associated with the proposed development. Further, the allegation is founded on an assumption that, in the event of a refusal, Azure Development Group will choose to develop the subject land with the same standard of finishes and architectural treatments but in a building with a footprint that accords with all applicable acceptable outcomes.
[240] The Appellants' submission ignores the reality that, in assessing the acceptability of the proposed development, and whether there is a need for it, a local government is not presented with a binary choice between a non-compliant development and an alternative compliant development. Planning schemes do not advance a particular design option or solution for a particular site. They also do not compel development to proceed. If a developer seeks to pursue development of a parcel of land, planning schemes articulate planning goals and stipulate controls that guide the parameters of the development in performance-based terms.

[345]

[241] Whether an approval is, or is not, in the public interest is a question of fact to be determined in the exercise of the planning discretion. The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016. Not every non-compliance is contrary to public interest or will warrant refusal. The extent to which a flexible approach will prevail in the face of any given non-compliance with an assessment benchmark will turn on the facts and circumstances of each case, which includes a consideration of the "relevant matters".
[242] Here, the Appellants contend that, in the exercise of the discretion, the proposed development should be refused for six reasons.
[243] First, the proposed development exceeds the acceptable outcomes within City Plan in relation to height (both in metres and storeys), plot ratio, site coverage, front setbacks, side setbacks and rear setbacks. They say that although that does not in itself result in non-compliance, it is an indicator that the scale of the proposed development is an overdevelopment of the subject land.
[244] Second, the Appellants say the overdevelopment of the subject land has consequences. It has significant adverse impacts on the views of the residents of Kirribilli and the character of the locality.
[245] Third, the Appellants say the proposed development is not consistent with community expectations.
[246] Fourth, the Appellants assert there is no community or economic need for that part of the proposed development that exceeds community expectations, which they say is an additional three apartments. The Appellants say any need identified is also met by a compliant development.
[247] Fifth, the Appellants contend that any architectural merit attributable to the proposed development cannot disguise the excessive height, bulk, and scale of the proposed development. It is still a bulky building and a building which exceeds community expectations for a building on the subject land.
[248] Sixth, the Appellants allege that Azure Development Group and the Council rely heavily on the transition or gradation in height they assert is provided by this building between the adjacent Kirribilli (with its height of 11 storeys) and 160 Oxlade Drive (at five storeys in height). With respect to that issue, the Appellants say there is no provision in the planning scheme which requires such a gradation, nor is gradation part of the character of the existing locality.
[249] As would be apparent from the reasons I have provided above, I do not accept any of these allegations.
[250] I am satisfied that, in the circumstances of this case, a balanced decision in the public interest favours approval of the proposed development.

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42

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