Peach v Brisbane City Council & Anor [2019] QPEC 41

[3] At the time the development application was assessed and decided by Council's delegate, it was inevitable the planning strategy for the land and immediate locality, which had been in place since 1982[2], was changing direction. The outdated strategy was embodied in the Petrie Terrace and Spring Hill neighbourhood plan (PTSHNP), which formed part of version 8 of City Plan 2014. The planning scheme amendments adopted by Council included a new neighbourhood plan, known as the Spring Hill neighbourhood plan (SHNP). Even in draft form, the SHNP encouraged a material increase in the height, bulk, scale and form of future development in Spring Hill, particularly in the area where the land is located. By way of example, the acceptable outcome for building height on the land was 10 storeys under the PTSHNP. This was increased to 30 storeys under the SHNP.

Planning and Environment Court of Queensland|2019-08-21|Before: Mr J

Mr J Horton QC and Mr M Batty for the co-respondent

[1] The co-respondent, Wharf Investment Corporation Pty Ltd (Wharf), wishes to redevelop land situated at 152 Wharf Street, Spring Hill (the land) with a 27 storey high-rise office tower. To facilitate the redevelopment, an impact assessable development application was made to Council in January 2018. In the application material, it was accepted the redevelopment did not comply with the planning scheme in force, namely version 8 of City Plan 2014. The redevelopment was designed to respond to a shift in Council's planning for the land, and Spring Hill[1].

[2] The shift in planning was foreshadowed by publicly available documents promulgated as early as October 2014. Those documents took various forms over time. In January 2018, the shift was embodied in draft planning scheme amendments, which had been adopted by Council on 31 July 2017. The amendments did not take effect until 14 September 2018.

[4] In April 2018, Council's delegate approved Wharf's development application, subject to conditions. The decision was based on a detailed assessment of the proposed redevelopment against version 8 of City Plan 2014 and the planning scheme amendments that had been adopted, but not yet taken effect. The assessment, and subsequent decision, proceeded on the footing the application did not comply with version 8 of City Plan 2014. Determinative weight was afforded to the planning scheme amendments referred to in paragraph [3]. The amendments were treated as favouring approval of the development.

[5] This is a submitter appeal by Mr Peach against the delegate's approval. The appeal was commenced on 18 May 2018 under the Planning Act 2016 (PA).

[6] Mr Peach contends the development application should be refused for the reasons identified in a document titled 'Revised agreed list of issues in dispute'[3]. The document alleges the application should be refused because: (1) it does not comply with, and is in conflict with, City Plan 2014; and (2) there are no grounds, or relevant matters, that justify the development being approved in the face of the alleged non-compliances/conflicts with City Plan 2014.

[7] Mr Peach has alleged the development does not comply with, and conflicts with two versions of City Plan 2014, namely version 8 and version 13. As I have said, version 8 was in effect when the application was properly made. Version 13 was in effect at the date of the hearing, and includes the planning scheme amendments referred to in paragraph [3]. Mr Peach contends that an assessment of the application against versions 8 and 13 of City Plan 2014 yield the same result, manifesting fundamental conflicts and non-compliances. This position assumes version 13 involves 'limited changes in planning' in respect of 'form, scale and intensity of development in this part of Bris[4]ane'4 and, as a consequence, does not support approval of the application.

[8] As this is a submitter appeal, it is for Wharf to establish the appeal should be dismissed[5]. To discharge the onus, Wharf advanced a case founded upon four propositions, namely: (1) whilst the development does not comply with particular aspects of version 8 of City Plan 2014[6], the planning scheme has been overtaken by events, namely the formal planning scheme amendments embodied in version 13; (2) the fate of the application should be determined having regard to version 13 of the planning scheme; (3) the application complies with version 13 of the planning scheme; and (4) there are no matters of town planning practice, or principle, that warrant refusal of the application. Alternatively, Wharf contends there is a basis in town planning practice and/or principle to approve the application in the face of any non-compliance with version 8 and/or 13 of City Plan 2014.

[9] The position adopted by Wharf raises the following questions for determination:

(a) Has version 8 of the planning scheme been overtaken by events?

(b) Does the application comply with version 13 of the planning scheme?

(c) Is there a basis in town planning practice, or principle, to approve Wharf's development application in the face of non-compliance with version 8 and/or version 13 of the planning scheme?

[10] I will deal with the questions in subparagraph (a) and (b) as separate and distinct topics. The question in subparagraph (c) will be dealt with as part of the exercise of the town planning discretion.

[11] Before turning to deal with each of the above questions, it is necessary to set out some background with respect to the land and surrounding locality. I will also deal with matters relating to the form of the proposed development, and the applicable statutory assessment and decision making framework.

[12] The land is a prominent corner site with an area of 1,981m2. It is semi-circular in shape, with the arc presenting to three principal frontages, namely Turbot Street (to the south[7]), Wharf Street (to the east) and Astor Terrace (to the north). The diameter of the semicircle is located on the western side of the land. This is a common boundary with the only adjoining neighbour, which is developed with a high-rise residential tower known as Quattro on Astor. The land slopes from Astor Terrace to Turbot Street. A major constraint for any redevelopment of the land is a subterranean easement for a railway tunnel. The easement is located at the southern end of the land in proximity to the corner of Turbot Street and Wharf Street.

[13] At present, the land is vacant. Historically it has been improved with, inter alia, a 5 storey commercial building. This building was demolished in recent times to make way for redevelopment. At one point in time, that redevelopment may have taken the form of a high-rise residential tower. On 15 May 2018, Council granted an approval for the land, which authorises a 30 storey residential building, comprising a podium (or base) with a 25 storey residential tower above. Centre activities were approved at ground level. Access is provided via a small lane, known as Cousins Lane. Whilst the approval has taken effect, there is no evidence to suggest it has been acted upon.

[14] The intersection of Wharf Street and Turbot Street is a notable feature of the local area. It is a wide and busy intersection. The frontage of the land at this intersection has been altered in recent years by the closure of a turning lane. This lane closure resulted in the widening of the verge, which is now landscaped.

[15] The adjoining land is a narrow rectangular site with an area of 1,114 m2. Together, the adjoining land and the land form an irregular shaped island surrounded on all sides by road reserve. Within that island, a uniform boundary line is presented to Astor Terrace in the north. The same cannot be said for Turbot Street to the south. The southern corner of the land extends further south than the adjoining land. This has the consequence that the land has an additional, but small frontage along the diameter of the semicircle to Cousins Lane. This Lane is orientated, for all intents and purposes, in an east-west direction terminating in the southern corner of the land. It also intersects with Henry Street. This street is orientated in a north-south direction and intersects with Astor Terrace in the north. Henry Street forms the western boundary of the island comprising the land and its immediate neighbour.

[16] Quattro on Astor is a 14 storey high-rise multi-unit dwelling. The development was approved in July 2005 under the now superseded Brisbane City Plan 2000. The built form has two identifiable components; a podium and a tower.

[17] The podium has three levels, two of which are for car parking and accessed via Cousins Lane. It is built to boundary on three sides, namely the eastern, southern and western boundaries. The podium does not present, or seek to create, an 'active frontage' to any of these boundaries. This can be contrasted with the Astor Street frontage to the north where the base of the building is set back from the boundary.

[18] A cafe is located on the Astor Street frontage of the development at ground level between the property boundary, and base of the building. It sits beneath an awning, which obscures the view of the tower above.

[19] The tower is set back from the edges of the podium below. It is a narrow rectangular structure with four units per floor. This is a product of the shape of the land, which is itself narrow and rectangular. Each unit has a generous balcony that is orientated towards either Turbot Street or Astor Terrace.

[20] The eastern side of Quattro on Astor has been designed and constructed in anticipation of the land being redeveloped. The podium is built to boundary with no discernible openings. The tower is designed such that it presents only high level slit windows facing the land[8]. Condition 16 of Council's approval requires the development to be constructed, and maintained, to include 'Fixed, external privacy screens or fixed obscure glazing to all side windows at a sill height less than 1.5 metres above floor level on the east elevation of the building'[9].

[21] The character of local area, of which the land forms part, was helpfully described by the visual amenity experts. They described the character as follows[10]:

"In summary, the subject land (and the local area generally) are located at an interface of city centre and city fringe, as well as an area where low-intensity uses (churches and open space) meet high-intensity commercial, hotel and residential towers, street front activation and busy intersections, and where older low-rise built forms are being progressively replaced by newer high rise developments."

[22] I accept this description of the character of the land and surrounding locality. It accords with the photographic evidence, which reflects the area is one in transition, where older built form is being progressively replaced by newer high-rise development. The approval granted by Council for the land in May 2018, being for a 'newer high rise development', is consistent with that transition. The same can also be said for Quattro on Astor.

[23] The built form character of the local area is fairly described as mixed. In the immediate locality, there are a variety of land uses and diversity of built form[11]. I accept Mr Chenoweth's evidence that the built form character of the immediate locality expresses little consistency or coherency in terms of age, height, bulk, scale, form and streetscape presentation[12]. There is no consistent 'podium and tower' typology. Mr Chenoweth's opinion was consistent with the photographic evidence contained in the visual amenity joint report. This evidence confirms that, while traditional parts of Spring Hill remain, parts of it have been developed over the last few decades to include higher density residential and commercial development. The development on the adjoining land to the west, and the Novotel hotel site further to the west again, are examples where this part of Spring Hill is transitioning to newer, high-rise development.

[24] Beyond the immediate vicinity of the land, the local area is characterised by an intense mix of commercial, retail and residential uses. To the south and west of the land, intensive high-rise built form is visually dominant, particularly development that is located closer to the core of the city centre. There are a number of prominent buildings in the locality including the Sofitel hotel above Central Station, and the circular Suncorp building between Turbot Street and Ann Street.

[25] The visual amenity experts agreed there was a distinction to be drawn, in character terms, between the 'immediate vicinity' and the 'local area'. At paragraph 21 of their joint report they said:

"...the immediate vicinity of the site is less intense than other parts of the local area owing to the confluence of roads and wide landscaped road verge around the site (and the width of Turbot St...at this point); the open space of Cathedral Square...; and the lower intensity of the block accommodating St Andrew's Lutheran Church and bus lay-by area..."

[26] I accept this point of agreement. The character of the immediate vicinity of the land is less intense than other parts of the local area. To the south of the land, across Turbot Street, there are two churches, namely St Andrews Lutheran Church (a modern brick building) and All Saints Anglican Church (an historic stone building). To the south-east of the land, across Turbot Street and Wharf Street, are the gardens of Cathedral Square and St John's Cathedral. These features contribute to the mixed character of the 'local area' and 'immediate vicinity'.

[27] The proposed redevelopment is a 27 storey high-rise commercial office tower with centre activities located at ground level. The components that make up the building can be grouped as follows: (1) one basement level; (2) two split ground levels (due to the slope of the land); (3) three podium levels of car parking; (4) twenty levels of office space, each having a floor area in excess of 1,400m2; (5) a rooftop garden and recreation area; and (6) roof plant and lift overrun. The town planning witnesses agreed[13] the development has a gross floor area in excess of 29,000m2. Vehicle access is to be obtained from Astor Terrace.

[28] The tower is uniform in shape, save at the lower levels of the building, and at roof level. The floor plates are consistent with the semicircular shape of the land and described by Wharf's architect, Mr Robinson, as a 'pin wheel plan form'. The façade of the building is a tinted double glazed façade addressing Turbot Street, Wharf Street and Astor Terrace.

[29] The design includes a number of features to break up the bulk of the building, and to provide visual interest. The features include horizontal and vertical sun shading fins, inset balconies and planter boxes. In addition, the glazed façade has been articulated through a series of short flat faces. These flat faces have been faceted to follow the curved boundary of the land. The façade will appear pleated, rather than as a continuous vertical wall of glass.

[30] The proposed development turns its back to the adjoining land to the west. It does this by presenting a solid wall to the boundary from the ground level up to level 5. For that part of the building above level 5, it presents a solid wall with small openings to the boundary. The solid wall represents the location of the building core where services and amenities are located.

[31] The northern and southern ends of the building core wall are glazed and have been splayed in an easterly direction to provide an increased setback to the adjoining development. The splayed edges of the tower increase the setback from a distance of 2.77m to 3.54m. This splay is to maintain, as far as is practicable, views from the balconies of Quattro on Astor. Vertical sun shading elements[14] have also been included on the splayed walls to break up building bulk, and to provide visual interest.

[32] The design of the development is not a traditional 'tower and podium' where the former is recessed back from the edge of the latter to create two distinct building elements. Whilst the design has no traditional podium element[15], it was Mr Robinson's opinion that the design has a 'subtle' tower and podium distinction. In the architectural joint report he said[16]:

"Despite the tower having reduced setbacks the design of the tower still presents a podium-tower distinction - albeit subtle. In generalised terms, there is a variation in form and articulation between the tapering single glazed podium glazing and its planter boxes; and the vertical tinted doubled glazed office floors with their inset balconies, pin wheel plan form and horizontal and vertical sun shading fins."

[33] The subtle distinction between the tower and base of the building is achieved by a tapered element, which was referred to in the evidence as a glass 'skirt'. It is an element which flares outwards from the building line to a point where it creates an overhang for pedestrian comfort at street level. This element of the design was described by Mr Robinson in the following terms[17]:

"...the podium form is composed of two defined bands that circumnavigate the West, North and Eastern elevations of the building. The lower band is delineated by the base of the façade's tapered glass skirt, which provides a pedestrian overhang for comfort and which, as it wraps around onto the Astor Terrace frontage is seen to align with and respectfully tie into the podium height of the Quattro on Astor Apartments...Below this podium reference line lies the elements providing amenity for the pedestrian realm i.e. the glass awning, landscaped public plaza, streetscape works, planter boxes and public realm art...The upper band of the podium is delineated by the completion of the tapered glass skirt along with its horizontal slots and planter boxes...

Together this upper band and lower band combine with the tower to form what could be considered as an 'integrated podium'. At the same time, the podium remains a clearly readable element distinguishable from the tower and its pin wheel form..."

[34] Mr Robinson's evidence is made good having regard to the architectural plans, read together with the photomontages prepared for the development. I accept his evidence.

[35] Further in this context, I accept Mr Chenoweth's evidence. His opinion was consistent with Mr Robinson's, and pointed to three elements of the design that work in combination to distinguish the lower and upper levels of the development. This was said to achieve the subtle visual effect of a podium, or building base.

[36] The particular design elements to which Mr Chenoweth referred are depicted in an architectural elevation described as 'Detail street elevation (Turbot & Wharf)'. That elevation vividly depicts[18]: (1) the flared skirt awning above street level; (2) the angled column supports providing framing at the ground level pedestrian spaces; and (3) the parking level planter boxes.

[37] The proposed development was described by Mr Robinson as a catalyst for redevelopment, and an exemplary development that will serve as a benchmark for future office development in Spring Hill[19]. I accept his evidence. The photomontages and plans illustrate the development will be of a high architectural standard. This is unsurprising given the development was subject to an extensive collaborative design process[20]. That process has yielded a design which will, as Mr Robinson said, 'positively contribute to a highly visible central city corner location'[21].

The statutory assessment and decision making framework

[38] The development application before the Court is impact assessable. It is common ground the statutory assessment and decision making framework for the application is prescribed by the PA and PECA. I have traversed this legislative framework in two recent decisions, namely Smout v Brisbane City Council [2019] QPEC 9[22] (Smout) and Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPEC 16[23] (Ashvan). I have approached the exercise of the town planning discretion in this appeal consistent with these decisions, in particular paragraphs [51] and [54] of Smout. At paragraph [51] of Smout I said:

"The planning discretion conferred under the PA to decide an impact assessable application is broad. It is to be exercised subject to three requirements: (1) it must be based on the assessment carried out under s.45 of the PA; (2) the decision making function must be performed in a way that is consistent with s.5(1) of the PA, namely the assessment and decision making function must be performed in a way that advances the purpose of the Act; and (3) the discretion is subject to any implied limitation arising from the purpose, scope and subject matter of the PA. The exercise of the discretion will inevitably involve a balancing exercise. The balance that is struck in any given case is no longer mandated by the existence of 'conflict' with a planning scheme, and the absence of 'sufficient grounds'..."

"As I have already said, the planning discretion to be exercised does not mandate that the application must be refused because a non-compliance with an assessment benchmark, namely a planning scheme, has been identified. Given the size, and complexity of modern performance based planning schemes, not every non-compliance, in my view, will warrant refusal. Each non-compliance should be examined having regard to: (1) the verbiage of the planning scheme; and (2) proper town planning practice, and principle. The verbiage of the planning scheme is to be examined to ascertain the planning purpose of, and degree of importance attached to compliance with, a particular planning principle. The extent to which a flexible approach to the exercise of the discretion will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case."

[40] Central to the decisions in Smout and Ashvan is the proposition that the town planning discretion to be exercised in relation to an impact assessable application is more flexible than its statutory predecessor[24]. That the discretion is flexible, and different to its statutory processor is consistent with the recent decision in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132 at [60], which deals with this point in the context of the planning discretion conferred under the Local Government Act 1936. Like the PA, this discretion was not constrained by a 'conflict' and 'grounds' test.

[41] Ashvan and Smout were published after submissions were completed for this appeal. As a consequence, I invited the parties to make submissions with respect to that part of Ashvan dealing with the statutory assessment and decision making framework. The submissions filed in response to that invitation did not suggest Ashvan was wrongly decided.

[42] I later invited the parties to make further written submissions with respect to ss.45(6), (7) and (8) of the PA, which were the subject of recent amendment. The provisions are relevant to the assessment of the application. The amendments were made by the Economic Development & Other Legislation Amendment Act 2019. Council and Wharf submitted the legislative amendments did not alter any of the submissions made on their behalf. Mr Peach elected to make no submissions about the legislative amendments.

[43] Whilst there was a large body of common ground about the applicable assessment and decision making framework, there were two submissions made on behalf of Mr Peach that warrant particular attention. Both submissions, if accepted and acted upon, had the potential to lead the Court into error.

[44] The first submission concerns the weight to be given to 'relevant matters'. The following submission was made on behalf of Mr Peach:

"Whilst the Appellant accepts that the wording of section 45(5)(b) of the PA gives the Court an unfettered discretion to consider "relevant matters", it does submit that, if it is accepted that, as set out in the Explanatory Notes, the prescribed matters are always to carry "substantial weight', perhaps less room is left for "relevant matters" to weigh heavily in the assessment process.

[46] It is implicit in the above submission that the Court is invited to treat the assessment and decision making process as if it has an underlying capacity, which, by reference to the Explanatory Notes for the Planning Bill 2015, is 'always' substantially consumed by 'prescribed matters'. It is said this leaves 'less room for relevant matters'. The plain and ordinary meaning of ss.45(5)(b) and 60(3) of the PA do not support this submission.

[47] Sections 45(5)(b) and 60(3) are broadly expressed. Neither provision purports to predetermine, or limit, the weight a relevant matter/s may be given in the assessment of a development application or in the exercise of the planning discretion. The weight to be given to a prescribed matter, or a relevant matter, is for the assessment manager (or this Court on appeal) to determine on an application by application basis. The exercise is to be guided by, inter alia, s.5(1) of the PA, and town planning practice and principle.

[48] Further, the submission assumes it is legitimate to have regard to the following passage of the Explanatory Notes for the Planning Bill 2015, with two relevant parts emphasised:

"Assessment against, or having regard to other relevant matters is not obligatory. Neither are they intended to substitute for the prescribed matters. Assessment against and having regard to the prescribed matters is always required. Furthermore, given that the prescribed matters are matters of public record included in statutory instruments that have been the subject of extensive community consultation, the prescribed matters are always expected to carry substantial weight in any assessment."

[49] It was submitted on behalf of Mr Peach that 'resort' to the above Explanatory Notes was justified because the PA gives limited guidance as to the weight that may be given to relevant matters mentioned in s.45(5)(b) of the PA. Whilst it is correct to say the provision provides no express guidance as to the weight to be given to relevant matters, I reject this, in turn, justifies having regard to the Explanatory Notes for the purposes of filling the gap.

[50] It is orthodox to refer to extrinsic material to aid in the proper interpretation of a provision of an Act. It will be appropriate to do so where any one of the circumstances arising under s.14B(1) of the Acts Interpretation Act 1954 is engaged. For example, where a statutory provision is ambiguous or unclear, or to confirm its plain and ordinary meaning. Mr Peach does not invite the Court to consider the Explanatory Notes in this context.

[51] Mr Peach does not contend that s.14B(1) is engaged having regard to s.45(5) of the PA. Rather, the Court is invited to consider the Explanatory Notes for the purpose of 'understanding' the weight that ought be attributed to prescribed matters in contrast to relevant matters under s.45(5) of the PA. This goes beyond a point of interpretation. It was an attempt to use extrinsic material to suggest how a broadly expressed discretion is expected to be exercised. No authority was cited in support of the contention that extrinsic material may be utilised for this purpose.

[52] In any event, the fact the Explanatory Notes suggest a prescribed matter is 'always' expected to carry substantial weight in an assessment is of no assistance. The reason for this is a simple one. The statement may represent the view of the author, but it is not reflected in the legislation that is to be construed, and applied, by the assessment manager (or this Court on appeal). Neither ss.45 nor 60 of the PA expressly, or as a consequence of context, require prescribed matters to be given significant weight in all circumstances. Nor do the provisions suggest relevant matters will attract less weight than prescribed matters. Significant amendments would need to be made to these provisions, and surrounding context, to give effect to such a requirement.

[53] It has not been established that it is appropriate to depart from the plain and ordinary meaning of ss.45 and 60 of the PA for the purposes of determining the weight to be given to prescribed, or relevant matters in the circumstances of this case, or at all.

[54] The second submission I wish to deal with relates to the operation of ss.45(7) and (8) of the PA.

[55] These provisions of the PA, in simple terms, require an assessment manager to assess an application against the applicable planning documents in effect at the time the application was properly made, but permit weight to be given to any new, or amended, planning documents. In this appeal, given Wharf's reliance upon the amendments to City Plan 2014, these provisions have work to do. In particular, there is a genuine issue as to what weight, if any, should be given to, inter alia, the SHNP.

[56] In paragraph 3.30 of the amended further submissions filed on behalf of Mr Peach, it was submitted:

"The Appellant notes the recent decision of the Court of Appeal in Klinkert v Brisbane City Council [2019] QCA 40 where the Court of Appeal found that there was no basis for using an entitlement to 'give weight' to amendments to a planning scheme (see s.45(7) of the PA) to displace or modify the assessment against the planning scheme in force when the development application was lodged (see s.45(6) of the PA). This applies to both code and impact assessment and lends considerable significance to the non-compliance with Version 8 in this case."

[57] At paragraph 4.2 of the same written submissions, it was contended the decision in Klinkert v Brisbane City Council [2019] QCA 40 (Klinkert) identified limitations in the consideration, and use, of changes to planning schemes after lodgement of a development application. The precise limitation/s referred to in the submission were unclear.

[58] In my view, the decision in Klinkert has limited application to this appeal.

[59] I accept the submission that Klinkert stands for the following proposition: there is no basis for using the entitlement to 'give weight' to amendments to a planning scheme to displace or modify the assessment against the planning scheme in force when the development application was lodged. This is clear enough from the plain and ordinary meaning of ss.45(7) and (8) of the PA. Further, I accept this proposition applies to the application of these provisions in this appeal.

[60] Accordingly, I have approached Wharf's application on the basis that an assessment against version 8 of City Plan 2014 must be carried out. This requirement is not displaced because version 13 of City Plan 2014 has taken effect. The weight to be given to each of those assessments in the exercise of the planning discretion is, however, a different matter.

[61] A central issue to be determined in this appeal concerns the weight to be given to the outcome of the assessment of the application against version 8 and 13 of City Plan 2014 in the exercise of the discretion under s.60(3) of the PA. The issue to be determined in Klinkert was different. It was a code assessable application where an important issue involved the interplay between s.60(2) with ss.45(6) and (7)[25] of the PA. Section 60(2) mandates approval of a code assessable application where compliance is achieved with all applicable assessment benchmarks. This provision does not apply to an impact assessable application. The relevant decision making power for an impact assessable application is conferred by s.60(3) of the PA, which is expressed in different terms to s.60(2). This is a material point of distinction between this appeal and Klinkert.

[62] Whilst it is not clear from Mr Peach's submissions what, if any, limitation is to be read into ss.45(7) or (8) by applying Klinkert, I do not accept that any such limitation should be read as if it equally applies to an impact assessable development application under the PA. This is not only because of the differences between ss.60(2) and (3) of the PA. It is also a consequence of s.45(5)(b) of the PA.

[63] In my view, s.45(8) of the PA is not the only provision that permits the SHNP and other planning scheme amendments to be considered in the exercise of the planning discretion under s.60(3) of the PA. They are also relevant in this appeal by operation of s.45(5)(b) of the PA, which permits an assessment manager (and this Court on appeal) to have regard to a 'relevant matter'.

[64] As I observed in Ashvan, s.45(5)(b) captures an expansive range of considerations, and includes matters for, and against, approval[26]. That the expansive range of considerations includes the SHNP and other planning scheme amendments is clear enough from the note following s.45(5)(b). The note gives examples of relevant matters, and includes 'the current relevance of the assessment benchmarks in the light of changed circumstances'. The current relevance of version 8 of the planning scheme is squarely in issue in this appeal. The SHNP and other amendments to City Plan 2014 are directly relevant to Wharf's contention there has been a material change in planning circumstances. As relevant matters, they may be given weight in the assessment of the application.

[65] Klinkert does not prescribe any limitation that is applicable to s.45(5)(b) of the PA. The provision was not considered in that decision because it did not apply to the code assessable application before the Court. Section 45(5)(b) of the PA applies only to impact assessable applications.

The extent of the issues and the appellant's written submissions

[66] Before dealing with the disputed issues to be determined, I wish to make some observations about the extent of the issues raised on behalf of the appellant to warrant refusal of the application, and the written submissions relied upon to advance those issues.

[67] The issues relied upon to warrant refusal of the application are articulated in Exhibit 8A, which is described as a 'Revised agreed list of issues'. Save for collecting alleged planning scheme non-compliances into one of a number of topics, the document does not reliably identify the issues to be determined.

[68] Exhibit 8A is deficient in three material respects: (1) contrary to recent statements of this Court, it contains an imposing list of alleged non-compliances with City Plan 2014[27], which are cast in a way that suggests the vast majority warrant refusal of the application in their own right; (2) despite the submissions made on behalf of Mr Peach pointing to the differences between ss.45(7) and (8) of the PA, the document invites the Court to conflate the assessment of non-compliances with versions 8 and 13 of City Plan 2014, rather than examine the latter version as a matter of weight; and (3) the document invites the Court to ask and answer the wrong question. The document invites the Court to exercise the discretion as if it were a SPA appeal, that is, to consider whether an approval can be justified in circumstances where there is 'conflict' and an absence of 'grounds'. The third matter could have been rectified. I invited further submissions from the parties about my decision in Ashvan, which deals with this very issue at paragraphs [36] to [38] and [86]. Despite extensively addressing this decision in further submissions, this difficulty was not confronted by Mr Peach. Nor was leave sought to rely upon a further revised list of issues.

[69] Further to point (1) above, Exhibit 8A alleges 'conflict' with 30 provisions of version 8 of City Plan 2014. It alleges 'conflict' with 30 provisions of version 13. For both versions of the planning scheme, 16 of the alleged 'conflicts' were identical, and were directed at the Centre or mixed use code. Contrary to the submissions made on behalf of Mr Peach, a number of these alleged 'conflicts' did not warrant refusal in their own right and had, in some, but not all respects, the hallmarks of a scatter gun approach to the nomination of issues.

[70] In my view, the primary focus in the appeal is the finest grain level of planning for the land, and locality. In version 8, this comprises the Mixed use zone code and the PTSHNP. In version 13, this comprises the Principal centre zone code and the SHNP. This is not to say the Centre or mixed use code is irrelevant. The simple point is that the issues relied upon in that code, in isolation, did little to advance the case one way or the other. Despite this, the conflicts alleged with the Centre or mixed use code were pressed by Mr Peach with the same vigour as the conflicts alleged with the PTSHNP, Mixed use zone code, Principal centre zone code and the SHNP.

[71] I accept there will be cases where the nature of the development proposed may result in an imposing number of non-compliances with a planning scheme. Where a party elects to nominate such a list of non-compliances, it must accept the consequence that attaches to that election. By nominating and advancing an imposing list of non-compliances, a party will be expected to provide commensurate assistance to the Court in relation to each alleged non-compliance, particularly where the planning provisions comprise compound propositions. The assistance will include detailed written submissions.

[72] To assist the Court, written submissions are ordinarily expected to: (1) identify each of the planning scheme provisions in issue; (2) make submissions, where required, as to the proper interpretation of each provision in issue, particularly where a provision contains compound propositions; (3) identify the evidence relied upon to establish compliance, or non-compliance with each provision in issue; and (4) provide some analysis of the evidence, and where relevant, identify why the evidence relied upon should be preferred to other contrary evidence.

[73] Points (2), (3) and (4) above will not be discharged by a party asserting compliance or non-compliance with a planning scheme, and seeking to establish this by merely repeating the words of the planning provision relied upon. An assertion of this kind, absent any reference to, or analysis of the evidence, is of little assistance. It leaves the Court with the unenviable task of analysing all of the evidence to determine what is relied upon to establish compliance or non-compliance with an assessment benchmark. It also leaves the Court to determine, for itself, why a party contends particular evidence should be accepted in preference to contrary evidence. This, in my view, is unsatisfactory.

[74] Here, not only was an imposing list of non-compliances alleged with two versions of City Plan 2014, the submissions advanced in support provided little assistance as to the proper interpretation of many provisions of City Plan 2014. Further, the submissions offered little by way of assistance as to the evidence relied upon to establish the alleged non-compliances. The assistance provided fell short of what I said is expected in paragraph [72].

[75] The written submissions prepared on behalf of Mr Peach comprised an outline of submissions and a schedule described as 'Attachment B'. It was submitted that 'all disputed planning issues...were canvassed' in the attachment[28], with specific submissions made in the outline about key broad categories of issues.

[76] Attachment B[29] is a document that identifies the planning scheme provisions that are in issue, and submits why 'conflict' has been established. It seeks to make good the alleged 'conflicts' by repeating those parts of each planning provision in issue.

[77] The attachment, and the accompanying submissions, were wholly inadequate given the number of alleged non-compliances. The attachment is repetitive, no doubt as a consequence of a 'cut and paste' word processing exercise. No evidence is cited in the document in support of any asserted conflict. It provides no analysis of the evidence. This was not remedied by the outline of submissions. Like the attachment, the outline asserts conflict with various provisions of City Plan 2014. Save for five footnotes[30], the assertions did not refer to the evidence relied upon in relation to the key broad categories of issues. This document, like the attachment, does not analyse the evidence.

[78] The failure to address or analyse the evidence in a meaningful way was unsatisfactory given the number of alleged non-compliances with two versions of City Plan 2014. The assessment of compliance with the planning documents was not made any easier by the substantial body of evidence before the Court. The evidence included 318 pages of joint expert reports, 87 pages of further statements of evidence and 3 days of transcript.

[79] The number of planning scheme provisions relied upon by Mr Peach to warrant refusal was extensive. That, as a factor in its own right, has the potential to protract litigation in this Court, making it more time consuming than is necessary. In isolation, this is disappointing, but is often overlooked. Here, it was not an isolated concern. It was a difficulty that was exacerbated by the nature of the written submissions filed on Mr Peach's behalf. The combination of an imposing list of planning scheme provisions, coupled with inadequate submissions, did little to assist the Court in the timely disposition of this appeal. Conduct of litigation in this Court should not follow this, or a similar model. It impedes the efficient use of the Court's finite resources. Further, it does little to engender confidence that the implied undertaking given by a party to the Court under s.10(2) of PECA has been complied with.

[80] I now turn to deal with the three questions identified in paragraph [9] above.

Has version 8 of City Plan 2014 been overtaken by events?

[81] This question is answered in the affirmative for the following reasons.

[82] The statutory assessment and decision making framework mandates that Wharf's application is to be assessed against version 8 of City Plan 2014[31]. As was conceded by Wharf[32], this assessment discloses two non-compliances, namely by reason of: (1) the height of the development; and (2) the 'non-traditional' design of the podium. This concession, whilst sensibly made, does not represent the full extent of non-compliance with version 8 of City Plan 2014.

[83] The PTSHNP was, until September 2018, the most detailed and locally focussed planning for the land, and surrounding locality. It is, in this case, complemented by the Mixed use zone code. These planning documents, working in combination, provide no support for the height, bulk, scale and resulting form[33] of the proposed development[34]. Further, they provide no support for the proposed building-to-building relationship with Quattro on Astor - that relationship cannot be characterised as a 'sensitive transition' in the context of the PTSHNP. These matters give rise to a number of non-compliances with version 8 of City Plan 2014. They principally arise with overall outcome (8)(d), and performance outcomes PO1 and PO17 of the PTSHNP. Non-compliance also arises with overall outcomes (5)(b) and (5)(h) of the Mixed use zone code. Consequential non-compliances arise with the Centre or mixed use code because the development is not consistent with that anticipated in the 'local area'.

[84] The nature of the non-compliances with version 8 of City Plan 2014 are significant. Taken in isolation from version 13 of City Plan 2014, the non-compliances represent a sound, if not compelling, reason to refuse the application.

[85] Wharf, however, submits the non-compliances should not be determinative of this appeal because version 8 of the planning scheme has been overtaken by events. It relies upon the long-established principle that a planning appeal court may depart from the intent expressed in a planning scheme where a local government has itself departed from that intent, or where it has been overtaken by events[35].

[86] It has been said that cases engaging the above principle are expected to be rare[36]. This is one of those rare cases. The planning strategy in force at the time Wharf's application was properly made has been overtaken by events. It no longer has relevance, in a planning sense, for this particular part of Spring Hill. This proposition is, in my view, made good, having regard to the amendments made to City Plan 2014, which involve a change to the zoning of the land, coupled with the introduction of the SHNP. It is necessary to deal with each of these amendments in turn.

[87] At the time Wharf's application was properly made, the land formed part of an area of Spring Hill included in the Mixed use zone. This part of the Mixed use zone had an interface with the Principal centre zone, being the highest order centre in Council's hierarchy of centres. It is also the highest order centre in the hierarchy of centres for Southeast Queensland. The interface between the centre designations occurred along the length of Turbot Street. City Plan 2014 was amended in September 2018 such that the Principal centre zone 'jumped' Turbot Street to encompass part of Spring Hill, inclusive of the land, that was once included in the Mixed use zone.

[88] The change in zoning brings with it important contextual changes that inform the assessment of the application before the Court. There are three material contextual changes, all of which inform the assessment of the acceptability of the proposed development in terms of its height, bulk, scale and relationship with Quattro on Astor.

[89] First, the Principal centre zone code paints a different forward planning picture to that emerging from the Mixed use zone code. As the name suggests, the purpose of the Mixed use zone is to provide for a variety of uses and activities. In contrast, the purpose of the Principal centre zone is to provide for a large variety of uses and activities to, inter alia, 'form the core of an urban area'[37], namely Brisbane. Spring Hill has a particular role to play in this stated purpose, which it did not formally have prior to September 2018. This is recognised in overall outcome (4)(b) of the Principal centre zone code, which states:

"Development provides for a diverse and intensive mix of land uses in ...Spring Hill...that support and provide opportunities for the expansion of the core function of the inner city and play a vital role in the growth and economy of the city."

[90] Second, the land is now included in the same zone as the Central Business District of Brisbane (CBD), where existing and anticipated development includes high-rise office towers of substantial height, bulk and scale. The substantial nature of development anticipated and encouraged in the zone includes that identified by, inter alia, overall outcome (4)(a) of the Principal centre zone code, which states:

"Development provides for the greatest concentration and intensity of activities and land uses in the planning scheme area in Brisbane's inner city that support its role as the heart of the State's capital and South East Queensland's principal activity centre."

[91] The land is included in the City Centre zone precinct of the Principal centre zone. The overall outcomes in the zone code particular to this precinct complement overall outcome (4)(a) above. One such overall outcome is (6)(b), which reinforces that substantial development is anticipated in, inter alia, the northern portion of the precinct where the land is located. The character of development encouraged in the precinct is 'at high densities and contains a mix of diverse and commercially focused land uses that support the core function of the inner city'. Further, the highest employment densities are encouraged in this precinct, particularly in areas within walking distance of public transport facilities. The land is located within a comfortable walking distance to Central Station.

[92] Third, the change in zoning brings with it a change in the planning controls regulating building height, bulk, scale and form. This is particularly so for commercial development that shares an interface with residential or sensitive uses.

[93] The Mixed use zone code provides that the height, bulk, scale and form of development is to be, inter alia, tailored to its specific location' and 'the nature of the surrounding neighbourhood'[38]. Further, it is envisaged that the form and intensity of development in the zone 'transitions sensitively to surrounding residential areas'[39] and is 'sensitively designed and operated to avoid or mitigate any potential adverse impact on an adjoining use'[40].

[94] The Principal centre zone code takes a different approach to the interface between commercial development and sensitive uses. Whilst development is to be 'tailored to its specific location', the zone code does not require development to sensitively transition to surrounding residential uses. Nor does the zone code require development to be sensitively designed and operated to mitigate or avoid adverse impacts on adjoining uses. This difference is unsurprising once it is appreciated the planning scheme encourages development that optimises the airspace in the City Centre[41], and expressly discourages residential development that 'compromise(s) the primary function of the Principal centre zone as a commercial activity centre'[42].

[95] The change to Council's planning does not end with the zoning provisions. Council also adopted the SHNP. The differences between the PTSHNP and SHNP are of significance and demonstrate the planning strategy embodied in the PTSHNP has been overtaken.

[96] City Plan 2014 includes a number of neighbourhood plans. They are planning documents addressing matters at the local or district level, and may provide more detailed planning for the zones[43]. As I have already said, the PTSHNP was in force at the time the application was properly made. All of the land included in the Mixed use zone in Spring Hill was subject to this neighbourhood plan[44].

[97] For the purposes of the PTSHNP, the land was included in the High-rise commercial precinct and the High-rise commercial 1 sub-precinct. The latter is one of four related sub-precincts, which were identified as bands of building intensity stepping out, and down, from the city centre. The bands were intended to allow for a gradation of intensity, height and uses, with the highest and most intense development located closest to the city centre[45]. The sub-precinct was one of the locations in the neighbourhood plan area where higher density residential and non-residential development was anticipated and encouraged. This was because of its close proximity to the city centre, Central station, bus routes, parking facilities and accessibility to major traffic arteries[46].

[98] The encouragement offered by the planning scheme for higher density uses in the High-rise commercial precinct of the PTSHNP is accompanied by particular planning controls with respect to building form. Overall outcome (8)(d), which applies to the High-rise commercial precinct states:

"The environment for the first 2 or 3 storeys is essentially of a commercial character in the form of a podium extended to the boundaries, except where front setbacks are required. Tower construction is intended above the podium, providing open space at the upper levels, and where residential uses are proposed, providing opportunities for outdoor living areas on roof decks. The location and shape of towers is to be carefully designed to minimise impacts of loss of light, air and outlook to buildings in the vicinity." (emphasis added)

[99] The PTSHNP includes Table 7.2.16.1.3.A, which contains performance outcomes and acceptable outcomes for the neighbourhood plan code. Section 7.1(6)(f) and (e) of City Plan 2014 provide, respectively, that: (1) the acceptable outcomes in a neighbourhood plan code achieve the performance outcomes of the code; and (2) the performance outcomes achieve the overall outcomes of the neighbourhood plan code. A number of the performance outcomes in the PTSHNP code are relevant to building height, scale and form considerations.

[100] Performance outcome PO1 of the PTSHNP code, and its accompanying acceptable outcome are in the following form[47]:

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:

(a) consistent with anticipated density and assumed infrastructure demand;

(b) aligned to community expectations about the number of storeys to be built;

(c) proportionate to and commensurate with the utility of the site area and frontage width;

(d) designed to avoid significant and undue adverse amenity impact to adjoining development;

(e) sited to enable existing and future buildings to be well separated from each other and to avoid affecting the potential development of adjoining sites.

Development complies with the number of storeys and building height in Table 7.2.16.1.3.B.

[101] Acceptable outcome AO1 above refers to a table prescribing 'Maximum building height'. It prescribes 10 storeys, and a podium height of 12 metres for the land. The proposed development substantially exceeds 10 storeys. A performance based solution is therefore proposed. The performance based solution does not comply with PO1 above because the development:

(a) is not of a 'height' and 'scale' intended in the High-rise commercial precinct;

(b) does not align with the community's expectation as to the number of storeys to be built; and

(c) is not a traditional tower and podium form, which is the intended built form outcome in the High-rise commercial precinct.

[102] As a consequence of the above, the proposed development cannot be said to comply with PO1, which requires development to 'improve(s) the amenity of the neighbourhood plan area'.

[103] Related issues of building size and bulk arise for consideration under, inter alia, Performance outcome PO17 of the PTSHNP code. This provision, and the accompanying acceptable outcome state:

Development ensures that building size and bulk are consistent with the density and nature of the neighbourhood plan area.

Development that has a gross floor area that complies with the following:

[104] An application of acceptable outcome AO17.1 to the land equates to a development gross floor area in the order of 6,900m2. The town planning witnesses agreed the proposed development has a gross floor area in excess of 29,000m2, which far exceeds that envisaged by AO17. Again, a performance based solution is therefore proposed.

[105] The proposed development, as a performance based solution, does not comply with PO17. The development is located in a High-rise commercial precinct, but the planning documents do not anticipate, let alone encourage development of the height, size and bulk proposed. It far exceeds what is anticipated, and is, therefore, inconsistent with the intended density and nature of the PTSHNP area.

[106] Version 13 of City Plan 2014 includes the SHNP. This is a new neighbourhood plan for Spring Hill and embodies a shift in planning. The document positively supports the expansion of the core function of the inner city centre into a limited part of Spring Hill. That area has been earmarked in the SHNP as the 'City Centre expansion precinct'. The land is included in this precinct.

[107] Land included in the City Centre expansion precinct is intended to accommodate the highest densities and most diverse range of uses. This does not, however, mean it is intended the new development may replicate the scale of development in the city centre. The scale of the uses in the precinct are intended to be subordinate to the CBD. The scale of development that will be subordinate to the CBD includes development in the City centre expansion precinct that is 30 storeys in height.

[108] One point of difference between the PTSHNP and the SHNP is the absence in the latter of a requirement for development to include a traditional tower and podium form. The SHNP, unlike its predecessor, does not include a precinct specific overall outcome that promotes a formal tower and podium design in the City Centre expansion precinct. Rather, the SHNP speaks of a 'street building' and 'slender towers'. The former appears in a performance outcome of the SHNP code. The latter appears in an overall outcome for the neighbourhood plan area. For reasons later given, they are not necessarily limited to a podium and tower design[48]. This change, in my view, represents a softening of Council's position. It no longer requires development to be of a particular design typology (tower and podium). The softening provides flexibility in the SHNP that was not provided in the PTSHNP.

[109] A significant shift in Council's planning manifests itself in the application of a particular provision of the SHNP code. In this regard, it will be recalled from paragraphs [100] to [102] that the proposed development does not comply with performance outcome PO1 and acceptable outcome AO1 of the PTSHNP code. The performance outcome is expressed in the same terms as PO1 in the SHNP code, but a change has been made to the accompanying acceptable outcome, AO1. The acceptable outcome in the SHNP code states that 'Development complies with the number of storeys in Table 7.2.19.5.3.C-Maximum building height and maximum tower site cover'. The number of storeys stated in that table for the City Centre expansion precinct is 30, where development is proposed on a site of 1,800m2 or greater. The proposed development complies with this acceptable outcome.

[110] Compliance with AO1 of the SHNP code means, by virtue of 7.1(6)(f) of City Plan 2014, compliance with PO1 of the same code is also achieved. The proposed development, for the purposes of Council's most recent statement of planning intent for Spring Hill, is therefore to be treated as meeting each of the elements that make up PO1 of the SHNP code. That is, the development is treated as being:

(a) of a height, scale and form that achieves the intended outcome for the City Centre expansion precinct;

(b) of a height, scale and form that improves the amenity of the neighbourhood plan area;

(c) of a height, scale and form that contributes to a cohesive streetscape and built form character;

(d) consistent with the anticipated density and assumed infrastructure demand;

(e) aligned with community expectations about the number of storeys to be built;

(f) proportionate and commensurate with the utility of the site area and frontage width;

(g) designed to avoid significant and undue adverse amenity impacts to adjoining development; and

(h) sited to enable existing and future buildings to be well separated from each other, and to avoid affecting the potential development of an adjoining site.

[111] Compliance with PO1 an AO1 of the SHNP code is an indicator of the extent to which the planning for this part of Spring Hill has changed and now anticipates the development of the kind proposed. The extent of change is such that the development transitions, in the context of PO1, from a non-compliant to a compliant development.

[112] A significant point of controversy between the parties relates to the nature and extent of the changes to Council's planning. Having regard to paragraphs [87] to [111], the shift in Council's planning for the purposes of this case is significant. The SHNP, coupled with the new zoning of the land, paints a different forward planning picture to that reflected in the PTSHNP and Mixed use zone. This has the consequence that the context in which the acceptability of the proposed development (in terms of its height, bulk, scale, form and siting) is to be examined is materially different. A clear demonstration of the extent of the change emerges from the assessment of the proposal against PO1 and AO1 of the SHNP code.

[113] Wharf submits that Mr Peach's case failed to give proper recognition, and sought to downplay the significance of the changes, to the Council's planning for this part of Brisbane[49]. I accept this submission. It is made out having regard to the matters set out above, read in conjunction with: (1) Mr Buckley's evidence; and (2) the written submissions prepared on behalf of Mr Peach.

[114] In the town planning joint report, Mr Buckley expressed the opinion that he did not consider the SHNP heralds a particular change in policy. At paragraph 55 of the joint report, he disagreed with the suggestion that the 'policy constitutes expansion of the City Centre into the Fortitude Valley and Spring Hill'. This position was developed a little further by Mr Buckley in his oral evidence.

[115] In cross examination, it was suggested to Mr Buckley that all of the views expressed by him assume the inclusion of the land in the City Centre expansion precinct of the SHNP is of little moment. In response, he said[50]:

"...I don't agree with what I interpreted as being a suggestion that the CBD is moved into this part of the Spring Hill Petrie Terrace Neighbourhood Plan area. So I don't - interpret that from opinions expressed by Mr Schomburgk and Mr Mulcahy. I might be unfair to them, but to me you could have called it the Turbot Street precinct and the provisions would speak to themselves in terms of what the outcomes might be, ultimately."

[116] I am unable to accept Mr Buckley's evidence having regard to the clear terms of the SHNP. This planning document includes a precinct described as the 'City Centre expansion precinct'. As the name suggests, the SHNP promotes an expansion of the city centre into part of Spring Hill. This is reinforced once it is appreciated that the precinct is coincident with the Principal centre zone, being the same zone in which the city centre is included.

[117] Mr Buckley, in my view, did not approach the change in Council's planning on a sound footing, which undermines the opinions expressed by him. In particular, it undermines the opinions he expressed about the acceptability of the proposed development in the context of version 13 of City Plan 2014.

[118] The written outline submitted on behalf of Mr Peach contends the obvious and only real change to planning intent for the locality are the increases to the acceptable building height and site cover[51]. Otherwise, it was contended that version 13 of City Plan 2014 reflects 'limited changes'[52] with respect to form, scale and intensity of development in this part of Brisbane. The submissions were pitched as high as suggesting the relevant provisions in version 13 'repeat the planning strategies in Version 8 for the Site and the locality'[53] and there is 'a great deal of consistency between the relevant provisions of Version 8 and Version 13'[54].

[120] The submissions are not supported by an objective reading of version 13 of City Plan 2014. In simple terms, version 13 of the planning scheme includes the land in the highest order centre, not just for Brisbane, but South East Queensland. In this centre, substantially greater building height, bulk, scale and form is anticipated and promoted in contrast to the Mixed use zone. This is only complemented by the SHNP, which includes the land in the City Centre expansion precinct. Like Mr Buckley, the submissions sought to downplay this clear change in planning intent.

[121] An important issue to be determined in this appeal is the weight to be attributed to version 13 of City Plan 2014, and any assessment of the development against that planning document. It was submitted on behalf of all parties that version 13 should be given weight. I accept this submission.

[122] To ignore the SHNP and the zoning change would be illogical. The changes reflected in version 13 of City Plan 2014 represent Council's most recent statement of planning intent, which departs from the planning intent expressed in the PTSHNP and the Mixed use zone. The departure is a formal one, which should be given its full force and effect. This is so for three reasons, taken in combination: (1) given the nature and extent of the change to Council's planning for Spring Hill; (2) given the extensive consultation and adoption process undertaken before implementing the change in planning, which dates back to early 2014[55]; and (3) given the draft of the SHNP was adopted by Council on 31 July 2017, being a date prior to the delegate's decision to approve Wharf's application.

[123] Logic, and the prevailing circumstances, lead to the inevitable conclusion that version 13 of City Plan 2014 should be the determinative planning document. This is consistent with the town planning evidence, in particular, the evidence of Mr Buckley. He is a senior and experienced town planner. During cross-examination he was asked to express an opinion as to the weight, if any, he would give to version 13 of City Plan 2014, assuming three things: (1) the proposed development did not comply with version 8 of City Plan 2014; (2) the nature and extent of the non-compliance with version 8 was 'as serious as it gets'; and (3) the proposed development complies with version 13 of City Plan 2014. Whilst Mr Buckley did not accept the third assumption was made out, but he fairly conceded there would be no planning reason left to refuse the application assuming all three assumptions were established[56]. He said "I'd have nowhere to go".

Does the development comply with version 13 of City Plan 2014?

[124] Mr Peach alleges the development does not comply, or conflicts, with three aspects of version 13 of City Plan 2014, namely: (1) the SHNP; (2) the Principal centre zone code; and (3) the Centre and mixed use code. Wharf and Council do not agree.

[125] The non-compliances alleged by Mr Peach with version 13 of City Plan 2014 are identified in Exhibit 8A. They are collected by reference to nine (9) topics, which allege the proposed development:

(d) is an inappropriate design, in that it is not a tower and podium form;

(e) does not deliver high quality, subtropical architecture;

(f) is out of character with the existing and planned character of the locality;

(g) will result in unacceptable adverse amenity impacts, including impacts on adjoining residential development;

(h) will undermine the role and function of the City centre and the CBD; and

(i) does not provide appropriate landscaping.

[126] I will deal with each of the nine topics in turn.

[127] Mr Peach contends the development does not comply with version 13 of City Plan 2014 because it is of an 'excessive height'. This is said to be a symptom of 'overdevelopment', rather than a reason for refusal in its own right.

[128] I reject this contention. The height of the development is not excessive. It complies with the SHNP code.

[129] For the reasons given in paragraphs [109] and [110], the development complies with the acceptable outcome for building height in the SHNP code, which envisages a development of 30 storeys on the land.

[130] Further, the contention sits uncomfortably with the approval granted by Council in May 2018. The approval authorises a high-rise residential development, which attaches to the land, and must be taken into account in the assessment of Wharf's application. It authorises development with a height similar to that proposed. The approved high-rise residential tower is 30 storeys. In comparison, the proposal is 27 storeys. Both the proposed and approved development comply with AO1 of the SHNP code.

[131] In support of his position, Mr Peach alleges the height of the development does not comply with three provisions of City Plan 2014.

[132] The first provision relied upon is overall outcome (4)(a) of the SHNP. This provision states:

"(a) The City Centre expansion precinct contains a mix of commercial, retail, residential, community and recreational uses, providing a transition in height between the CBD and development in the Boundary Street heart precinct and Spring Hill mixed used precinct."

[133] It is submitted the proposed development will not provide a "transition" as required by the above overall outcome. The evidence supporting the submission is that of Mr Peabody and Mr Buckley. With respect to Mr Peabody's evidence, in his opinion, the proposed development does not offer a suitable height transition within the local context[57]. Mr Buckley expressed a similar view. He readily accepted the height of the proposal was less than that anticipated in the adjoining neighbourhood plan area, but considered it was taller than existing development in the locality, and substantially more bulky. In this way, Mr Buckley considered the proposal did not reflect the transition anticipated by overall outcome (4)(a)[58].

[134] Contrary to submissions made on behalf of Mr Peach, the evidence established compliance with overall outcome (4)(a). The provision speaks of uses in the precinct providing a 'transition in height' between the CBD and 'development in the Boundary Street heart precinct and Spring Hill mixed used precinct'. I am satisfied this will be achieved here because the development is of a height (in storeys) that is anticipated in the City Centre expansion precinct and, as a consequence, the development complies with PO1 of the SHNP code.

[135] I do not accept Mr Peabody and Mr Buckley's assessment of the transition anticipated by overall outcome (4)(a). It was not clear that either of their assessments proceeded on the correct footing. That is, it was not clear whether they expressed their opinions cognisant of the proposal's compliance with AO1 and PO1 of the SHNP code. Further, their respective assessments proceeded on the premise that overall outcome (4)(a) speaks of a building-to-building, or a 'local area' transition. The overall outcome does not speak of a height transition in these terms. The transition of which it speaks is specific. It is a height transition that uses in the precinct provide between the CBD and particular precincts in the SHNP. The proposed development will contribute to the City centre precinct achieving this intended height transition.

[136] The second provision relied upon is overall outcome (4)(b) of the SHNP, which states:

"The Principal centre zone develops as a strong economic centre for Spring Hill, encouraging investment and employment in the area and leveraging off its proximity to the CBD and existing major healthcare and education institutions in the neighbourhood plan area. The Principal centre zone accommodates the highest densities and most diverse range of uses at a scale that is subordinate to the CBD."

[137] It was submitted on behalf of Mr Peach that the proposal fails to comply with the above provision because it is not of a scale subordinate to the CBD. Moreover, it was submitted the proposal is of a scale that is expected in the CBD under the City centre neighbourhood plan code.

[138] The evidence relied upon in support of this submission is that of Mr Buckley. Having regard to a combination of factors, it was his view the proposed development is not of a scale subordinate to the CBD. He said the proposal was of an intensity contemplated principally in the Tower in Plaza precinct of the City Centre neighbourhood plan area[59]. I was not referred to the provisions of the City Centre neighbourhood plan code relied upon to establish this point.

[139] Overall outcome (4)(b) and Mr Buckley's evidence is directed at the issue of building scale. This issue is not limited to an assessment of building height. The scale of a building is the combination of its height, length and width. With these three integers of scale in mind, the question to be examined is as follows: What scale of development in the SHNP area will be subordinate to the CBD?

[140] This is answered by reference to the performance outcomes and acceptable outcomes of the SHNP code, which are intended to achieve the overall outcomes of the code, including overall outcome (4)(b)[60]. The performance outcomes include PO1, which is dealt with above[61]. The development complies with PO1, and its accompanying acceptable outcome. As a consequence, the planning scheme recognises that the development is of 'a height, scale and form that contributes to a cohesive streetscape and built form character', and 'is consistent with the anticipated density'. The proposed development is consistent with other performance outcomes of the SHNP code relevant to the issue of scale. This includes PO3, which is dealt with later in these reasons[62].

[141] I am satisfied the development is of a scale that is anticipated by the performance outcomes of the SHNP code. It will, as a consequence, be subordinate to development in the CBD in the manner envisaged by the SHNP code. This is confirmed by the architectural perspectives forming part of the evidence[63]. The perspectives vividly show the proposed development in its context, which includes part of the CBD.

[142] In context, the development appears in the perspectives to be subordinate in scale to the CBD. It is also confirmed by a comparison of the development with the provisions of the City Centre neighbourhood plan code. Table 7.2.3.7.3.C of that code informs a number of acceptable outcomes relevant to the height and scale of development anticipated in the CBD. The table anticipates development in the CBD that is substantially larger in scale than that anticipated in the City Centre expansion precinct of the SHNP area[64].

[143] The third provision relied upon by Mr Peach is performance outcome PO21 of the Centre or mixed used code, which states, in part:

Development ensures that the building height is consistent with the centre or mixed use area intent and local and street context considering:

(d) the height of existing adjoining buildings and proposed heights; ..."

[144] PO21 is of little assistance to Mr Peach's case.

[145] The proposed development complies with the corresponding acceptable outcome, namely AO21. The acceptable outcome requires development to comply with the maximum building height specified in a neighbourhood plan. As I have already said, the proposed development complies with AO1 of the SHNP code, which is directed at building height. Given the structure of City Plan 2014, compliance with AO21 results in compliance with PO21.

[146] The height of proposed development, having regard to version 13 of City Plan 2014, is not excessive. It will be in keeping with the height of development anticipated and promoted in the City Centre expansion precinct on sites equal to, or greater than 1,800m2. As a consequence, the height of the building is not a symptom of overdevelopment.

[147] Mr Peach alleges the proposed development is of an excessive bulk and scale. It is submitted this manifests itself in significant conflict with numerous planning scheme provisions, which can be grouped into one of three categories, namely: (1) holistic provisions; (2) provisions based on specific planning metrics or criteria; and (3) provisions that require the design to incorporate elements to mitigate, or relieve, the impression of bulk and scale.

[148] Before dealing with the three categories of planning provisions relied upon by Mr Peach, it is necessary to observe that this aspect of the appeal is to be determined against the background the proposed development complies with Performance outcome PO1 of the SHNP code. This provision is set out at paragraph [100] and informs an assessment of the acceptability of the height, scale and form of the development.

[149] As I have already said in paragraphs [109] and [110], compliance with PO1 is significant in the determination of this appeal. In simple terms, it follows from compliance with PO1 of the SHNP code that the height, scale and form of the development is anticipated in this part of Spring Hill. More particularly, by virtue of compliance with PO1, the development is considered by City Plan 2014 to be of a height, scale and form that improves the amenity of the neighbourhood plan area, and contributes to a cohesive streetscape and built form character.

[150] The holistic planning provisions relied upon by Mr Peach are those that require the development to be 'tailored' to the characteristics of the site and surrounding context. There are four provisions of version 13 of City Plan 2014 that require new development to be tailored in this way.

At a glance

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Judgment (582 paragraphs)

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Legislation Cited (5)

Cases Cited (1)