Wells & Anor v Brisbane City Council [2025] QPEC 22

Planning and Environment Court of Queensland|2025-10-17

[1] This is an appeal against the decision of the respondent to refuse development applications for a material change of use and reconfiguring a lot ("the proposed development") in respect of land located at 80 Arthur Terrace, Red Hill ("the site").
[2] Essentially what is proposed is that the recently constructed extension to the dwelling house on the site is to become a separate dwelling house on a separate lot. This would result in attached dwelling houses on two very small adjoining lots. One of these lots would be flood prone, being almost entirely inundated by overland flow during severe rain events. For the reasons that follow, the proposed development is a bad idea. While it might have superficial appeal for the owners, it finds no support in the relevant provisions of the respondent's planning scheme, which is the Brisbane City Plan 2014, Version 27 ("the planning scheme"). It is otherwise unmeritorious from a public interest perspective.

[3] The site is a corner lot, with frontage to Arthur Terrace of approximately 10 metres and to Vowles Street of approximately 43 metres.[1] It is located in the Character zone precinct within the Character residential zone pursuant to the planning scheme. It is also in the Hillside character precinct of the Ithaca district neighbourhood plan, however this assumes no significance in this appeal. The house on the site was constructed prior to 1946 ("the original house"). In circumstances where an overland flow path extends along the Arthur Terrace frontage and covers the majority of the site, it is unsurprising that the original house was constructed at the rear of the site on the elevated portion of it. The original house was extended pursuant to a development permit dated 18 March 2022 ("the extension"). The extension was at the front of the dwelling over a flood prone area the subject of the Flood overlay. The suburban character of this residential area is comprised predominantly of traditional building character houses like the original house. The predominant lot size in the Character zone precinct within the locality is 400m² or greater.

[4] In order to separate off the extension from the original house, two square shaped lots are proposed: Lot 13 to the north with an area of 218m² containing the extension; and Lot 14 to the south containing the original house with an area of 188m².[10] The built form will be separated by the erection of a fire-rated wall and there will be other associated minor building work. A new vehicle cross-over into Vowles Street will serve to provide car accommodation beneath both the original house and the proposed new separate dwelling. This will require an access easement over the existing driveway burdening Lot 14 in favour of Lot 13 which extends under the original house.[11] This access is far from ideal, requiring tight manoeuvring of a vehicle under the original house to access a hard stand area proposed to be built under the extension. It is in my view a contrived attempt at providing vehicular access to proposed Lot 13 in circumstances where it is almost entirely flood prone. A drainage easement over the majority of proposed Lot 13 and a high-density easement relating to the common wall is also part of the proposed development.

[5] Pursuant to the Planning and Environment Court Act 2016 (Qld) ("PECA"), the appeal is by hearing anew,[12] and the appellants must establish that the appeal should be upheld.[13] Section 46 of the PECA addresses the nature of an appeal and relevantly provides:

(2) The Planning Act, section 45 applies for the P&E Court's decision on the appeal as if -

(a) the P&E Court were the assessment manager for the development application; and

(b) the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.

[6] As the proposed development was impact assessable, s 45 of the Planning Act 2016 (Qld) ("PA") provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for development which, in the circumstances before me, are the relevant provisions of the planning scheme.[14] It must also be carried out having regard to matters prescribed by regulation. In this regard, s 31(1) of the Planning Regulation 2017 (Qld) ("PR") states that I must have regard to "any development approval for, and any lawful use of, the premises or adjacent premises",[15] and "the common material",[16] which includes the properly made submissions of which there were two.[17] These submissions essentially allege that the proposed development is inappropriate and an overdevelopment of the site. Further, the assessment may be carried out having regard to any other relevant matter other than a person's personal circumstances, financial or otherwise.[18]
[7] In determining the appeal, the court is conferred a wide discretion pursuant to s 60 of the PA to approve all or part of the application, impose development conditions on the approval, or refuse the application. As the Court of Appeal observed, the ultimate decision of the court is "a broad evaluative judgement".[19] The weight to be given to each of the factors in undertaking this assessment is a matter for the decision-maker.[20]
[8] The appropriate principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council,[21] notably that the same principles which apply to statutory construction apply to the construction of planning documents,[22] and that such documents need to be read as a whole in a way which is practical and intending to achieve a balance between outcomes.[23]

[9] As the reconfigured lots the subject of the proposed development are each less than 450m² in the Character residential zone, the proposed development was subject to impact assessment against the whole of the planning scheme.[24] Relevantly, pursuant to s 1.3.2 "Notes" are part of the planning scheme.[25] Where there is inconsistency between provisions in the planning scheme, the Strategic framework prevails over all other components to the extent of the inconsistency for impact assessment.[26] Code assessable development that complies with the purpose, overall outcomes and performance outcomes or acceptable outcomes of the code complies with the code.[27]

[10] Starting with the Strategic framework, s 3.4.2 lists a number of specific outcomes pursuant to Element 2.1 - Brisbane identity. SO5 states "Brisbane's development and infrastructure strengthens local identity". SO8 states "Brisbane's backyards contribute strongly to local character by providing green landscapes in urban areas."[28]
[11] In s 3.4.4, Element 2.3 - Brisbane's healthy and safe communities contains SO2 which states:

Brisbane adopts a risk-management approach to natural hazards where both the planning scheme and development are responsive to evolving information about natural hazards and the consequential assessment of risk. Risk management balances the economic, social and environmental costs and benefits to the city.[29]

[12] In s 3.7.6, Element 5.5 - Brisbane's suburban living areas contains SO2 which states "Suburban Living Areas experience limited growth, providing predominantly detached housing for residents."[30] SO4 then states:

The local character which is typically defined by features such as consistent block size and house spacing, an established road pattern, a predominance of detached housing, the presence of mature vegetation and gardens and by local topography is maintained.[31]

[13] Turning to the Character residential zone code in s 6.2.1.5 of the planning scheme, s 6.2.1.5.2. states that the purpose of the code will be achieved through overall outcomes which differ depending on whether the lot is in the Character zone precinct or the Infill housing zone precinct. Pursuant to overall outcome 4.b., development in the Character zone precinct where the site is located "provides for low density suburban and inner-city living through... a low density and intact suburban identity..." being maintained "in which multiple dwellings and dual occupancy are not accommodated".[32] Thereafter the following overall outcomes are relevant to the determination of this appeal:
1. Development form overall outcomes are:
  1. Development occurs on an appropriately sized and configured lot and is of a form and scale that reinforces a distinctive subtropical character of low rise buildings set in green landscaped areas.

Development responds to land constraints, mitigates any adverse impacts on environmental values and addresses other specific characteristics, as identified by overlays affecting the site or in codes applicable to the development.

Developmental provides that a new dwelling house:

ii. is located on an appropriately sized and configured vacant lot;

Development provides for a minimum lot size of 450m² to maintain a block pattern that accommodates traditional backyards and large trees.[33]

[14] The following provisions of the Flood overlay code have been identified as relevant to the determination of the appeal:
1. The purpose of the Flood overlay code will be achieved through the following overall outcomes:

Development provides for efficient evacuation and access for evacuation resources including emergency services during flood events, or otherwise plans for the prospect and impact of isolation or hindered evacuation during flooding.[34]

[15] Further, PO18 is also identified as relevant to the following extent:[35]

minimises the risk to people from flood hazard;
creates safe evacuation routes or avoids isolation of the development during a flood greater than the defined flood event.

[16] Finally, a number of provisions of the Subdivision code have been identified as relevant to the determination of the appeal:
1. The purpose of the code will be achieved through the following overall outcomes:
  1. Development for reconfiguring a lot proposed in conjunction with or subsequent to a material change of use maintains or improves the:

i. landscape and built form character, environmental and other values of the site or locality;

iii. amenity of intended uses and existing surrounding residential uses;

Development for reconfiguring a lot results in lots and an arrangement of lots that:

i. achieve the relevant outcomes and comply with the standards required by the planning scheme for the zones, zone precincts, neighbourhood plans and overlays that apply to the site;

iii. are of an appropriate size, dimensions and arrangement suited to their intended use and proximity to infrastructure, services and facilities needed by the development;

iv. are arranged and configured to complement the pattern of development in the locality;

v. address development constraints that impact land use and development and mitigate adverse impacts to character and environmental values.

Development for reconfiguring a lot of an existing building and associated land can be separately titled either in freehold or other title forms.
Development for reconfiguring a lot relating to existing or approved buildings does not apply to the reconfiguring a lot of a dwelling house in a zone in the Residential zones category and a dwelling house, including the main dwelling, plus any secondary dwelling or ancillary outbuildings, in a zone in the residential zones category is always to remain as a sole lot by any title or tenure.[36]

[17] The meaning of s 9.4.10.2.f. is clarified by a Note which appears in s 9.4.10.1 in the following terms:

Note - Where buildings are approved, they and the land they are on can be separately titled either in freehold or other title forms. The provisions in this code relating to reconfiguring a lot of existing or approved buildings do not apply to the reconfiguring a lot of a dwelling house in a zone in the Residential zones category. A dwelling house, including the main dwelling, plus any secondary dwelling or ancillary outbuildings, in a zone in the Residential zones category is always to remain as a sole lot by any title or tenure. A reconfiguring a lot proposal that does separate these components of a dwelling house and includes them on individual title is inappropriate and incompatible development and is highly unlikely to be supported. This ensures that the expectation of residents for a high standard of residential amenity is protected.[37]

The Character residential zone is identified as being a zone in the Residential zones category in the planning scheme.[38]

[18] Thereafter, the following performance outcomes have been identified as relevant:

Development results in lots and an arrangement of lots that:

enable the relevant outcomes and standards required by the planning scheme to be complied with for the intended use;
are consistent with the zones, zone precincts, neighbourhood plans and overlays that apply to the site;

complement the streetscape, local context and character for the locality;
address development constraints.[39]

Development provides for safe and healthy occupation of the lots relative to risks, hazards and land uses that adversely affect the normal occupation of the lot by the intended land use and activities associated with that use. [40]

[19] The agreed list of issues for determination narrowed during the course of the hearing of the appeal. Essentially they are:
1. whether the proposed reconfiguration and the proposed lots are appropriate having regard to considerations arising from provisions of the planning scheme identified above;
2. whether the proposed development minimises the risk to people and minimises the damage to property from flood hazard having regard to considerations arising from provisions of the planning scheme identified above;
3. whether relevant matters, which are essentially an absence of impacts and the provision of housing choice, diversity and affordability, warrant approval of the development in the exercise of the court's discretion;
4. whether non-compliance with provisions of the planning scheme warrants refusal of the proposed development; and
5. whether any non-compliances with provisions of the planning scheme can be cured by conditions.
[20] The Council does not contend that the material change of use component of the development application should be refused if the court is otherwise satisfied that the proposed reconfiguration is appropriate.[41]

[21] In a similar context, when construing a number of the same provisions of the planning scheme, the court made the following observations in Torro v Brisbane City Council:[42]

[22] The provisions of the Strategic Framework quoted above demonstrate a clear intent, which is consistently developed through the planning scheme that the protection of local character extends not only to the built form but also to the context in which it is situated including, specifically, backyards. This planning intent is reinforced in the Character Residential Zone Code in circumstances where the protection and enhancement of character is, understandably, a significant consideration for development in the CRZ. Ultimately, overall outcomes stipulate that development provides for a minimum lot size of 450m² "to maintain a block pattern that accommodates traditional backyards and large trees".

[22] While the appellants assert that the built form as a consequence of the proposed development will be identical to what is there now and there will accordingly be no impact on local character, this ignores the observation above that local character extends not only to the built form but also to the context in which it is situated. So far as this character extends to accommodating traditional backyards and large trees, the positioning of the original house at the rear of the site and the subsequent development of the extension into the front of the site are such that these assessment benchmarks are rendered otiose. As noted above, pursuant to s 31 of the PR, I must have regard to any lawful use of the premises in determining the appeal. This includes the extension which is sought to become the dwelling house for proposed Lot 13. The extent of the extension is such that I am aware of only one large tree which remains on the site and any landscaping is restricted to foliage around the edges of it.
[23] The proposed development nonetheless remains in significant conflict with the planning scheme. It is situated in the Character zone precinct where multiple dwellings and dual occupancy (defined as including two attached dwellings)[43] are not accommodated.[44] It is meant to be located on a lot with a minimum size of 450m².[45] As noted above, the proposed lots are only 188m² and 218m² respectively. They are even smaller than what is contemplated for the much more intense level of development in the Infill housing zone precinct which provides that development must achieve a maximum dwelling yield of one dwelling per 300m².[46] Indeed, the proposed lots are so out of character for the Character zone precinct that Lot 14 would become the second smallest freehold lot in this precinct in all of Red Hill.[47] Moreover, as Mr Adams the planner who gave evidence on behalf of the appellants conceded, it is not the intention of the planning scheme that the lots in this precinct be subdivided into square lots and any square lots in the precinct are a lot larger than what is proposed.[48]
[24] I now turn to the problem of Lot 13 and potential flooding. Two engineers gave evidence: Mr Hu on behalf of the appellants; and Mr Daly on behalf of the respondents. They each modelled flooding impacts in respect of the proposed development. I accept the evidence of Mr Daly in explaining the effect of the flood modelling undertaken by the experts in the following terms:

Almost 68% of the total area of proposed Lot 13 is shown to be inundated in the Defined Flood Event (DFE), which for an overland flow path source is the 2% Annual Exceedance Probability (AEP). If future Climate Change (CC) is included, or indeed a flood event exceeding the DFE were to occur, proposed Lot 13 becomes what is effectively completely inundated with almost 96% of the total area of proposed Lot 13 shown to be inundated.[49]

[25] There was considerable debate about whether the extent of this prospective inundation made Lot 13 unsafe from a flooding perspective. Regardless, what is clear is that the existing house on the site has flood-free access even in the worst flooding scenario as the original house was built on the higher ground at the rear of the site. Conversely, the proposed Lot 13 will be inundated to at least a depth of half a metre at the nearest potential evacuation point in such a scenario.[50]
[26] Turning to the relevant provisions of the planning scheme, SO2 of Element 2.3 adopts a risk management approach to such a hazard.[51] Thereafter, overall outcome 5.g. of the Character residential zone code requires that development respond to such a constraint.[52] I am satisfied that the height of the extension coupled with the predicted extent of the height of inundation means that overall outcome 2.d. of the Flood overlay code is satisfactorily addressed.[53] The same is true for the relevant generally worded assessment benchmarks identified in the Subdivision code. However, when PO18 of the Flood overlay code is considered, it cannot be said that proposed Lot 13 minimises the risk to people from flood hazard in circumstances where the dwelling on proposed Lot 13 will be completely cut off by flood water. In this regard, I note that in Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor,[54] Kefford DCJ observed that the "ordinary meaning of 'minimise' is 'to reduce to the smallest possible amount or degree'". The creation of Lot 13 does not do this.
[27] Proposed Lot 13, which relies upon an elevated dwelling to be habitable, is significantly compromised as a consequence of potential inundation. Indeed, under cross-examination, Mr Adams conceded that if the existing extension was demolished, it would be "very difficult for that land owner to replace it".[55] It is a most undesirable planning outcome to create a new lot for residential purposes which is dependant upon the existing dwelling structure remaining in perpetuity so that it can be used as intended.
[28] The extremely small size of the proposed lots with their configuration, including the creation of attached dwellings, combined with the inappropriateness of creating a lot which is entirely surrounded by floodwater in an adverse flooding event, is sufficient to warrant the appeal being dismissed. This is particularly so when the undesirable driveway access for proposed Lot 13 and the limited utility of proposed Lot 13 for residential purposes into the future are also taken into account.
[29] There is, however, a much more compelling reason for dismissing the appeal. This relates to overall outcome 2.f. of the Subdivision code. When this provision is read in conjunction with the other relevant parts of the planning scheme, its meaning is clear. When regard is had to the fact that it is uncontentious that two separate households are accommodated in the existing dwelling, this provision is even more compelling.[56] This form of residential occupation can lawfully occur in circumstances where the original house is considered the main dwelling and the extension is considered a secondary dwelling as defined in the planning scheme.[57] It can also be the other way around, as it does not matter which of the two is considered the primary dwelling. Overall outcome 2.f., when read in conjunction with the relevant Note which precedes it, makes it clear that:

A dwelling house, including the main dwelling, plus any secondary dwelling... in a zone in the residential zones category is always to remain as a sole lot by any title or tenure.[58]

A reconfiguring of a lot proposal that does separate these components of a dwelling house and includes them on individual title is inappropriate and incompatible development and is highly unlikely to be supported.[59]

[30] Reading the planning scheme as a whole, this desired outcome appears entirely consistent with the intention to preserve the character of the Character zone precinct within the Character residential zone. Overall outcome 4.b. does not envisage attached dwellings and overall outcome 6.b. provides that a new dwelling house is located on an appropriately sized and configured vacant lot.[60] There is no support in the planning scheme for the opportunistic attempt of the appellants to hive off the extension to the original house as a separate lot. In this context, it is relevant that the process of applying for an extension to a dwelling is subject to a lesser level of regulatory control than a reconfiguration of a lot.[61]

[31] The proposed development is not supported by the relevant provisions of the planning scheme. This is unsurprising as it does not represent a good planning outcome. Turning a renovation which extends an existing dwelling house into a separate dwelling house on a separate lot may have superficial economic appeal from the perspective of the owner of the dwelling house. It, however, does not serve any meaningful wider public purpose and significantly detracts from the planning controls which seek to preserve the character of the surrounding area. The futility of the proposed development is obvious when it occurs in the context that, should the extension be demolished, the residential lot sought to be created to accommodate it would be unlikely to be approved for a residential use in the future.
[32] Aside from the non-compliance with the provisions of the planning scheme identified above, the proposed development also represents an obvious over-development of the site.
[33] There are no relevant matters which would justify approving the proposed development. Indeed, the existing dwelling apparently lawfully accommodates a second household, providing additional housing in circumstances where, should proposed Lot 13 be created and it becomes necessary to demolish the extension, there would likely be no opportunity accommodate a second household.
[34] The appeal is therefore dismissed.

[19] Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987 at 1001, [59].

[20] Abeleda & Anor v Brisbane City Council & Anor [2020] QR 441 at 458, [43].

[24] Section 5.6, Table 5.6.1, Ex. 8(a), p 146.

[26] Section 1.5, Ibid, p 50.

[33] Sections 6.2.1.5.5. and 6.2.1.5.6, Ibid, p 176.

[37] Ibid, p 281. This Note was helpfully pointed out by my Associate during the hearing.

Environment Court Act 2016

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