Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors [2014] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION: Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors [2014] QCA 147

PARTIES: In Appeal No 6993 of 2013: / ZAPPALA FAMILY CO PTY LTD ACN 009 937 473 (applicant) v BRISBANE CITY COUNCIL (first respondent) TREVOR CLELLAND, TRACEY SMITH, MARLENE HANCOCK, PAUL KERLIN, DIANA WALLIS, VICTOR SISKIND, MARLENE SISKIND, PAUL WRUCK, KERRY LAWFORD, JOHN ESLER (second respondents) / In Appeal No 7117 of 2013: / BRISBANE CITY COUNCIL (applicant) v ZAPPALA FAMILY CO PTY LTD ACN 009 937 473 (first respondent) TREVOR CLELLAND, TRACEY SMITH, MARLENE HANCOCK, PAUL KERLIN, DIANA WALLIS, VICTOR SISKIND, MARLENE SISKIND, PAUL WRUCK, KERRY LAWFORD, JOHN ESLER (second respondents)

FILE NO/S: Appeal No 6993 of 2013 / Appeal No 7117 of 2013 / DC No 1215 of 2012

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Sustainable Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 20 June 2014

DELIVERED AT: Brisbane

HEARING DATE: 27 February 2014

JUDGES: Margaret McMurdo P and Morrison JA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: The applicant in 6993 of 2013, Zappala Family Co Pty Ltd, be granted leave to appeal.The applicant in 7117 of 2013, Brisbane City Council, be granted leave to appeal.The appeal in 6993 of 2013 be allowed.The appeal in 7117 of 2013 be allowed.The order of the primary judge dated 24 June 2013 be set aside, and in lieu thereof the second respondents’ appeal to the Planning and Environment Court be dismissed.In 6993 of 2013 the second respondents pay the appellant’s and first respondent’s costs of the application and appeal.In 7117 of 2013 the second respondents pay the appellant’s and first respondent’s costs of the application and appeal.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where Brisbane City Council (“BCC”) and Zappala Family Co Pty Ltd (“Zappala”) seek leave to appeal, pursuant to s 462 of the Sustainable Planning Act 2009 (Qld), against the decision of the Planning and Environment Court upholding a submitter appeal against the decision of the BCC to approve a development application by Zappala – whether leave to appeal should be granted / ENVIRONMENT AND PLANNING – ENVIRONMENT PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – CONSIDERATION OF PLANNING SCHEMES – where Zappala’s development application is for the material change of use of a three storey hotel on McDougall Street in Milton into a thirteen storey hotel – where the proposed development incorporates a restaurant, bar, function room, gaming room, kitchen and administration area, and 123 short term accommodation rooms, as well as providing 56 on-site car parks – where the learned primary judge held that the proposed development provided insufficient on-site parking and therefore conflicted with Performance Criteria P7 of the Transport, Access, Parking and Servicing Code (“TAPS Code”) – where P7 provides “development must achieve adequate provision for on-site parking” and may be satisfied by Acceptable Solution A7.2 or A7.3 – where the BCC and Zappala contend that the learned primary judge erred by misconstruing the P7, A7.2 and A7.3 of the TAPS Code – where the BCC and Zappala contend that the learned primary judge erred in defining the proposed development as Short Term Accommodation as opposed to a Hotel – where BCC and Zappala contend that the learned primary judge erred by misunderstanding and dismissing the evidence of the expert witnesses – whether the learned primary judge so erred / Sustainable Planning Act 2009 (Qld), s 326, s 462 / AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1; [2012] QCA 44, applied / Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited / CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited / Clelland v Brisbane City Council [2013] QPELR 650; [2013] QPEC 27, related / Council of the City of Liverpool v Turano (2008) 164 LGERA 16; [2008] NSWCA 270, cited / Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98; [2012] HCA 55, cited / Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [1999] EWCA Civ 811, cited / Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd [2010] 1 Qd R 439; [2009] QCA 231, cited / Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32, cited / Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494; [2011] QPEC 23, cited / Loader v (2013) 196 LGERA 207; [2013] QCA 269, cited / [2013] 2 Qd R 302; (2012) 191 LGERA 452; [2012] QCA 370, cited / (2004) 141 FCR 299; [2004] FCAFC 307, cited / [2012] NSWCA 389, cited / [2006] 1 Qd R 416; [2005] QCA 310, cited / (1998) 194 CLR 355; [1998] HCA 28, cited / [2010] QCA 126, cited / [2003] 2 Qd R 441; [2002] QCA 234, cited / [2004] QPELR 337; [2005] QPEC 15, cited / (2004) 60 NSWLR 127; [2004] NSWCA 174, cited

COUNSEL: D R Gore QC, with M A Williamson, for the applicant in CA 6993/13 and for the first respondent in CA 7117/13 / M D Hinson QC for the first respondent in CA 6993/13 and for the applicant in CA 7117/13 / D P O'Brien QC, with N Andreatidis, for the second respondents in both matters

SOLICITORS: Corrs Chambers Westgarth for the applicant in CA 6993/13 and for the first respondent in CA 7117/13 / Brisbane Citylegal Practice for the first respondent in CA 6993/13 and for the applicant in CA 7117/13 / McInnes Wilson Lawyers for the second respondents in both matters

MARGARET McMURDO P: I agree with Morrison JA's reasons for granting these applications for leave to appeal and allowing the appeals with costs.

The applications for leave to appeal are from a decision of a Planning & Environment Court judge allowing a submitters' appeal brought by the second respondents to both applications against the decision of the Brisbane City Council to approve a development application concerning the construction of a tower building for 132 hotel rooms at the Coro Hotel at McDougall Street, Milton. Both the developer and the Council have applied for leave to appeal from the Planning & Environment Court's decision.

The primary judge erred in construing Brisbane City Plan 2000's Transport Access Parking and Servicing (TAPS) Code's Performance Criteria P7 and its Acceptable Solutions A7.2 and A7.3. Contrary to his Honour's reasoning, the development application concerned an "Hotel", not "Short-Term Accommodation" as defined in City Plan and therefore complied with P7's Acceptable Solutions A7.3. This was so even though the developer's traffic expert noted in his report of 15 April 2013 that the fundamental change in the operation of the on-site dining facilities (bar, restaurant and function room) envisaged under the proposal would change from 100 per cent general public custom to focussing on catering for guests in the hotel with a 25 per cent reduction in the on-site dining facilities.¹

The primary judge rightly identified that it was for him, not the traffic experts called by the parties, to determine whether the layout of the proposed development achieved adequate provision for on-site vehicle parking under P7. But the unanimous evidence of the traffic experts was that the proposed on-site vehicle parking either achieved adequate provision under P7 or did not seriously conflict with P7 in light of City Plan's policy to restrict on-site car parking spaces in this area. And the judge did not give, nor did the respondents provide, adequate reasons to justify the judge's rejection of that unchallenged expert evidence. The judge improperly substituted his own view as to the need for on-site parking in the City Frame area which included the development site. His Honour erred in law in failing to conclude that the development application either complied with the requirements of P7 as to on-site parking or there were grounds justifying its approval despite the conflict under s 326(1) Sustainable Planning Act 2009 (Qld).

These significant errors of law warrant the granting of leave to appeal under s 498 Sustainable Planning Act. In the event that leave was given to appeal, the second respondents contended that the appeals should nevertheless be dismissed on grounds other than those identified by the primary judge.

It is certainly true that the primary judge's reasons for concluding that the approval of the development application was justified despite the loss of views suffered by some of the second respondents could have been more clearly explained. But the reasons sufficiently make clear that his Honour considered that, even if there was a conflict with City Plan's Ch 2 s 4.2.2.1 (headed "Meeting realistic expectations of future amenity"), there were grounds justifying approval of the development, despite the conflict, under s 326.

Nor did the second respondents make out their contention that the primary judge erred in law by finding the provisions of City Plan incongruous insofar as the developer's land was located in the Office Precinct of the Milton Local Plan.

As the second respondents to the applications have failed to succeed on the matters raised in their notices of contention, the appeals must be allowed, the decision of the primary judge set aside and instead the second respondents' appeal to the Planning & Environment Court must be dismissed.

I agree with the orders proposed by Morrison JA.

MORRISON JA: Zappala Family Co Pty Ltd (“Zappala”) and Brisbane City Council (“the BCC”) have brought separate but linked applications for leave to appeal against the judgment² of the Planning and Environment Court (“P&E Court”), dated 24 June 2013. At the same time as the applications were heard the Court heard the parties on the merits of the appeals for which they sought leave.

Background

Proceedings

The P&E Court proceeding, from which Zappala and the BCC seek leave to appeal, was a submitter appeal, pursuant to s 462 of the Sustainable Planning Act 2009 (Qld) (“SPA”), against the decision of the BCC dated 29 February 2012, to approve a development application for a material change of use for an Hotel on land situated at 26-30 McDougall Street, Milton.

This development application was made on 30 June 2010 by Zappala, approved by the BCC in February 2012, and appealed by the second respondents on 29 March 2012.

The submitters are the owners of home units in Coronation Residences, which is a 10 storey building located between the site of the proposed development and Coronation Drive.

Subject site

The land is located close to the Brisbane CBD, in the vicinity of Suncorp Stadium, and about 400 metres south of Milton Railway Station. It is in the block bounded by McDougall Street (to the north), Cribb Street (east), Coronation Drive (south) and Park Road (west).

The site is currently developed with an operational three storey hotel (“the Coro”). It has no provision for accommodation, but has a restaurant, bar, function room, gaming room, kitchen and administration area, as well as 43 on-site car parking spaces.

Proposed development

The nature of the proposed development appears sufficiently from the Reasons:³

the development is for an “Hotel”;

that incorporates short term accommodation on levels 2 to 13, consisting of 5900m2 Gross Floor Area (“GFA”), and 132 rooms;

level 1 contains conference and meeting rooms and a gym, taking up 690m2 GFA;

the reception, dining area, lounge bar, and administrative areas are to be located on the ground level and lower level, taking up 700m2 GFA;

56 car parks (including two disabled spaces and one motorcycle space) in the basement; 18 of the spaces will be provided by utilising car stackers;

the proposed development is to be constructed over the existing basement and hotel; these will be modified to support the tower above; and

the tower will be 47 metres above natural ground height, which equates to 15 storeys above McDougall Street and 14 storeys above the rear of the site adjacent to Coronation Residences.⁴

Relevant Planning Provisions

Sustainable Planning Act 2009

Section 495(2)(a) of the SPA provides, in the instance of a submitter appeal, that the P&E Court “must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate”.

On a submitter appeal, the decision of the P&E Court must not conflict with the Brisbane City Plan 2000 (“City Plan”) unless there are “sufficient grounds to justify the decision, despite the conflict”.⁵ The term “grounds” means “matters of public interest” and “does not include the personal circumstances of an applicant, owner or interested party”.⁶

The relevant laws and policies applying at the date of the development application were the City Plan, and therein the Strategic Plan, Milton Local Plan, Milton Local Plan Code, Residential Design – High Density Code, Short Term Accommodation Code and Transport, Access, Parking and Servicing Code.

City Plan

The City Plan divides Brisbane City into seven areas,⁷ one of which is Residential Areas. Residential Areas are then divided into five different areas.⁸ Of these, as identified in “Map C – Residential Areas”, the subject site lies in a High Density Residential Area (“HDRA”), which is provided for in s 5.6 of Ch 3.

Section 5.1, “General provisions”, lays out a number of Desired Environmental Outcomes (“DEOs”) applicable to all Residential Areas, including:

“Non-residential development services local resident needs and does not result in excessive glare, odour, light, traffic, or intrusive noise, or in on-street parking congestion, risk to residential uses, or operation during hours that interfere with residential amenity.”⁹

Section 5.6.1, “Intent”, describes HDRAs as “located close to the City with very good access to public transport and facilities” and as being “in locations with outstanding views to the Central City or Brisbane River”. In HDRAs development “will be to a maximum plot ratio of 1.5” and “will be no higher than 10 storeys and will address the street”. Section 5.6.2 lays out the DEOs, while by s 5.6.3, “Level of assessment”, the proposed development falls within “any other material change of use” and, accordingly, requires “impact assessment” and is “generally inappropriate”.¹⁰

Section 2.5.2, “Impact assessment”, provides, in relation to “Generally inappropriate impact assessable development”, “appropriateness of a proposal in any particular circumstance will be dependent on its location, design and impacts.” In assessing such development, whether there is a specific Code or not, the proposal will need to demonstrate, inter alia, that it “does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of”: “on-site and on-street parking”; “number or type of vehicle movements”; and “manner of access to the site”.

Relevantly, s 10 of Ch 3 contains definitions of “Hotel” and “Short Term Accommodation”. Those definitions are set out below at [64] and [65].

Milton Local Plan

Chapter 4 of the City Plan provides for Local Plans, which provide “detailed guidance for development outcomes across particular localities of the City” and “[override] any other part of the City Plan with which [they] may conflict”. This is reflected in s 5.5.3 of Ch 3, which notes that Local Plans may change the level of assessment and/or the Applicable/Relevant Codes identified.

At the date of the development application, the subject site was included in the Milton Local Plan 2006 (“Milton Local Plan”). It was divided into three precincts, one of which was the Office Precinct.¹¹ The Office Precinct was stated to accommodate “medium rise office development”¹² and for Short Term Accommodation to be generally inappropriate.¹³

Milton Local Plan Code

The Milton Local Plan Code provides:

“additional and/or alternative Performance Criteria/Acceptable Solutions to the generic Codes in Chapter 5. Where directly varying with a Code in Chapter 5, the Performance Criteria/Acceptable Solutions in this Local Plan Code take precedence.”

Performance Criterion P1, of the Milton Local Plan Code, provides: “Building size and bulk must be … of a scale commensurate with the intent of the precinct, … in which the development is proposed.” For the Office Precinct, Acceptable Solution A1.1 is for a “Maximum gross floor area” of “1.5 times site area”, while Acceptable Solution A1.2 is for a “Maximum No. of storeys and building height above ground level” of “4 storeys and 14m”.

The Strategic Plan

Chapter 2, “The Strategic Plan”, of the City Plan contains the DEO, supported by “Citywide strategies to achieve the DEO”, for the City. Section 3.5.1 states the DEO that:

“Brisbane has an efficient transport system that promotes a compact urban structure and less reliance on private motor vehicles, and enables people and goods to move safely, economically, equitably, comfortably and conveniently.”

Section 3.5.2 provides the Citywide strategies to achieve this DEO, one of which is:

“Promote a pattern of development that reduces private motor vehicle dependency and increases potential for use of public transport, cycling and walking through … carparking – managing the supply of on-site carparking to discourage reliance on private vehicle usage, while minimising negative impacts of on-street parking”.¹⁴

Section 4.2.2.1 of Ch 4 is entitled “Meeting realistic expectations of future amenity”, and provides:

“People should be able to choose their residential location with realistic expectations for the future amenity of the area. The Plan’s strategic directions in this regard are to: … protect views from the impacts of development only where nominated in a Local Plan, or where development exceeds the relevant Code’s acceptable solution for building height, and as a result detracts from views from nearby properties.

These community expectations also need to be balanced with expectations of housing choice to meet resident needs during all stages of their life and to meet different lifestyle choices.”

Codes

Chapter 5, “Codes and related provisions”, sets out codes, including the Transport, Access, Parking and Servicing Code (“TAPS Code”).

In relation to “Performance Criteria and Acceptable Solutions”, s 1.1 states:

“For appropriate impact assessment a proposal that complies with all Acceptable Solutions will be approved, subject to”: “being able to be conditioned to mitigate any potential adverse impacts”; “meeting the Code’s purpose”; and “meeting the Plan’s DEOs”; and

“For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts”.

TAPS Code

The TAPS Code applies “in assessing a material change of use”. Its purpose is to:

“ensure that development utilises all relevant transport modes, including walking, cycling and public transport, and does not impact adversely on the efficiency and safety of transport corridors or diminish the amenity of nearby land uses”.

The relevant Performance Criteria (P7) and Acceptable Solutions (A7.2 and A7.3) are set out below at [61] and [62].

P&E Court proceedings

Issues in dispute

In the P&E Court the Second Respondents (“the submitters”) contended:

the proposed development conflicts with the Milton Local Plan, in particular with the intent of the Office Precinct;¹⁵

the proposed development conflicts with the Short Term Accommodation Code, because of its density, bulk and scale, as well as the impacts it will have on the amenity of the Coronation Residences;

the proposed development conflicts with the Residential Design – High Density Code, in particular with Performance Criterion P15 and P16;

as a consequence of the inadequate provision of parking, the proposed development will have unacceptable traffic impacts; specifically, unlawful parking in an adjacent easement, which provides access to the Coronation Residences; and

the draft New City Plan reaffirms the BCC’s intention that the subject site is to be used for office development.¹⁶

In the P&E Court Zappala and the BCC submitted:

the proposed development is not in conflict with the City Plan;

if the proposed development conflicts with the City Plan, in spite of that conflict there are grounds justifying approval of the proposed development; and

the proposed development provides adequate on-site car parking.¹⁷

Decision of the learned primary judge

Having traversed the nature and location of the proposed development, the issues in dispute and the relevant planning provisions, his Honour moved on to consider the substance of the submitters’ allegations of amenity impacts, the import of the draft New City Plan, and the provision of parking by the proposed development.

In relation to the alleged amenity impacts, his Honour found:

there would be amenity impacts, in terms of loss of views, breezes, sunlight, sun penetration, and visual intrusion;

Zappala had addressed overlooking and loss of privacy concerns; and

on the evidence of Mr King and Ms Richardson, whom the learned primary judge described as “suitably qualified engineers”, the amenity concerns relating to light, noise and odour could be suitably addressed by appropriate conditions;¹⁸

in relation to “bulk height, scale and character”, his Honour found that the proposed development would conflict with two planning provisions; it would conflict with the Milton Local Plan, because a 15 storey hotel was not commensurate with the intent of the Office Precinct, while the conflict with the High Density Residential Area lay in the proposed development exceeding 10 storeys;¹⁹

however, the designation of the site in the Office Precinct was anomalous and incongruous; further the extant approval of four 20 storey towers on adjacent land to the west showed the Milton Local Plan had been overtaken by events.²⁰

The learned primary judge held:

“Notwithstanding the conflicts … these grounds in favour of that application as a whole are, on balance, sufficient to justify approving the proposed development…”.²¹

His Honour considered and dismissed the submitters’ contention that:

“to approve the proposed development would cut across the draft New City Plan which, in the draft Milton Neighbourhood Plan, corrects the existing anomaly in the Milton Local Plan by placing the subject site in a sub-precinct and specifying that development in it has a maximum building height of 4 storeys”.²²

His Honour found that no weight should be given to the draft New City Plan in this regard, because it was inconsistent with evidence of intensification of development in the immediate vicinity of the subject site, and might not remain when public submissions had been taken into account.

The learned primary judge summarised the expert evidence regarding parking as follows:

Mr Pekol (called by Zappala) attempted to demonstrate that the proposed development provided adequate parking by modelling based on a variety of sources and then applying Acceptable Solution A7.3; he conceded that he had failed to take into account any prospective parking demand arising from the proposed bar area; he conceded that the likely demand for parking spaces attributable to the proposed development was up to 70;²³

Mr Beard (called by the BCC) expressed the view that utilisation of car stackers would prove frustrating; he expressed the view that the demand generated by the proposed development would be up to 100 to 110 spaces on rare occasions and “design peak demand”, which would likely occur 30 to 50 times a year, was in region of 80 car parking spaces;²⁴ and

Mr Holland’s (called by second respondents) supplementary report concluded that there would be a likely demand for parking well in excess of number of parking spaces to be provided by proposed development.²⁵

In light of this evidence, his Honour found that the proposed development seriously conflicted with Performance Criteria P7 of the TAPS Code. His Honour held that this conflict could not be justified on the basis that it is in accordance with the BCC’s apparent policy to restrict parking for this type of development in the City Frame Area, because:

Short Term Accommodation is expressly excluded from Acceptable Solution A7.3 and this particular use is a significant parking generator for the proposed development;

Milton is an area which already suffers from significant parking constraints; and

the existing hotel and restaurant on the subject site already generate demand for parking that is not always accommodated within the existing facility.²⁶

His Honour expressed the view that the failure of Zappala to provide adequate parking is a result of its “desire to build the proposed development over the existing basement, presumably to save construction costs”²⁷; and that the on-street parking issue could readily be addressed by a design solution which complies with the TAPS Code.²⁸ The learned primary judge also stated:

“This outcome represents bad planning in circumstances where the parking situation in Milton is only going to deteriorate as development in the area intensifies”.

Applications for leave to appeal

Section 498 of the SPA relevantly provides that a party to a proceeding may appeal, with this Court’s leave, a decision of the P&E Court on the ground “of error or mistake in law on the part of the court”.

Each of the BCC and Zappala seek leave to appeal on the basis that:

the learned primary judge erred in law;

the errors of law materially affect the decision of the learned primary judge; and

the treatment by the learned primary judge of the TAPS Code raises issues of general importance for the City of Brisbane.²⁹

Zappala adds that the approval which has been set aside by the decision is of considerable importance to Zappala and its business.

Grounds of appeal

The principal grounds of appeal can be summarised as follows:

the learned primary judge erred in misconstruing the provisions of P7, A7.2 and A7.3, when seen in the context of the policy to restrict car parking spaces evident in the TAPS Code;³⁰

the learned primary judge erred in finding that the proposed development was in conflict with P7, and even if it was, it should have been found that there were grounds to justify the approval of it;³¹

the learned primary judge erred in disregarding the unanimous opinion of the three traffic engineers, that the demand for car parking generated by the hotel rooms component was between 33 to 44 spaces; further, that there was no adequate explanation in the reasons for doing so;

the learned primary judge erred in not finding that the proposed development came within the definition “Hotel” and not “Short Term Accommodation”, and therefore complied with P7 and A7.3;³²

the learned primary judge erred in not finding that the proposed development complied with P7, or was justifiable, on the basis of the expert evidence from the three traffic engineers and the application of the policy evident in the TAPS Code;³³

the learned primary judge provided inadequate reasons for his finding of conflict with P7;³⁴ and

the learned primary judge erred by substituting his own view about provision of car parking for that adopted by the BCC in its policy.³⁵

Zappala had additional grounds relating to the lack of a factual foundation for certain findings. It is unnecessary to enumerate them, as they will be dealt with below.

Orders sought

In the event their appeals are allowed, both Zappala and the BCC seek that this Court set aside the order made by the P&E Court on 24 June 2013, and dismiss the submitters’ appeal to the P&E Court. Both would seek their costs in this Court from the submitters.

Grant of leave to appeal

This is an appropriate case in which to grant leave to appeal. If Zappala and the BCC succeed on the grounds of appeal, which if correct clearly raise errors of law, the consequence is that Zappala’s application for approval will have been incorrectly rejected by the P&E Court. That is a substantial indication in favour of the grant of leave.³⁶

Applicable principles of construction

The resolution of many of the issues in the appeals turns on the interpretation of parts of the City Plan and TAPS Code. It is appropriate, therefore, to note the principles applicable to that task.

The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:³⁷

“[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”

…

[78]However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …”

This Court, in AAD Design, endorsed that “the established principles and canons of statutory construction should be applied” when construing planning documents.³⁸

Chesterman JA took the same view, adding:³⁹

“[37]The starting point in the task of construing statutes and like instruments remains, I think, that explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5:

“It is an elementary and fundamental principle that the object of the court, in interpreting a statute, “is to see what is the intention expressed by the words used”: River Wear Commissioners v Adamson. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what the say: cf. Cody v JH Nelson Pty Ltd. Of course, no part of a statute can be considered in isolation from its context – the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking “nothing remains but to give effect to the unqualified, words”: Metropolitan Gas Co v Federated Gas Employees*’* Industrial Union. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Ltd … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature.”

The correct approach to statutory interpretation must begin and end with the text itself.⁴⁰ At the same time it must be borne in mind that the

“modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense ...”⁴¹

The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical,⁴² and read as a whole and as intending to achieve balance between outcomes.⁴³

As was said by Chesterman JA in AAD Design:⁴⁴

“Planning schemes, and the definitions found in them, often lack clarity, contain ambiguities and sometimes appear contradictory. The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation. Nevertheless, Mr Hinson submits that the court should approach the task of construction in the manner described by Thomas J (with whom Ryan and McKenzie JJ agreed) in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360:

“To arrive at the so-called proper construction of such provisions involves a good deal of guess-work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well as obscure (cf. Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157, 162; Brown v Idofill Pty Ltd (1987) 64 LGRA 218, 227; Tainui Pty Ltd v Brown (1988) 65 LGRA 22, 27).”

However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC.

Principal grounds: Conflict with P7 and Applicability of A7.3

The principal grounds concern the finding that there was serious conflict with P7. That question requires that it be determined whether A7.2 or A7.3 applies to the development, which involves determining whether the development is for an Hotel or Short Term Accommodation.

In order to deal with those grounds it is necessary to first determine the proper construction of the relevant Performance Criteria and Acceptable Solutions, and how they apply to the proposed development.

P7 is in that part of the TAPS Code which sets out “Performance Criteria and Acceptable Solutions”. P7 provides that:

“The layout of development must achieve adequate provision for on-site vehicle parking that is clearly defined, safe and easily accessible and must be designed to contain potential adverse impacts within the site

Vehicle parking:

must not detract from the aesthetics or amenity of an Area

must discourage on-street parking where parking has adverse traffic management, safety or amenity impacts

must be consistent with convenient pedestrian and cyclist access.”

The relevant Acceptable Solutions are then A7.2 and A7.3:

“A7.2For development for any of the uses listed in column 1 of the carparking table, on-site carparking complies with column 2 of that table in the Transport, Access, Parking and Servicing Planning Scheme Policy, except for non-residential development in the City Centre or City Frame⁴⁵

A7.3On-site carparking numbers for development in the City Centre or City Frame is indicated on Map A – City Centre and City Frame Areas do not exceed 1 car space for every 200m2 of gross floor area for any development other than multi-unit or single unit dwellings or Short Term Accommodation.”

While the TAPS Code table puts forward Acceptable Solutions to the Performance Criteria, the City Plan makes it clear that the Acceptable Solutions are not the only way in which the Performance Criteria can be satisfied:

“For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code’s purpose.”⁴⁶

It was accepted that the development was in the City Frame Area. Therefore A7.2 would not apply if the development was “non-residential”. The development application was for an “Hotel” and that term is defined to mean:

“a use of premises for the sale of liquor for consumption on-site, which may also include sale of liquor for consumption off-site, short term accommodation and dining/entertainment activities.”⁴⁷

In so far as A7.3 is concerned, it would not apply if the development was for “multi-unit or single unit dwellings” or Short Term Accommodation. The development was clearly not for multi-unit or single unit dwellings. However, it needs to be determined whether it was for Short Term Accommodation. The term “Short term accommodation” is defined to mean:

“a use of premises for short term accommodation (typically not exceeding 2 weeks) for tourists and travellers, e.g. holiday cabins, motel, hotel (where it entails mainly accommodation), serviced apartments, guesthouse or backpackers hostel and caravan park (that is also often appropriate for use as long term accommodation).”⁴⁸

It can be seen, then, that whilst the use of premises as an Hotel can include short term accommodation, the reverse is not exactly the same. Use as “Short Term Accommodation” can only encompass an Hotel where the use “entails mainly accommodation”.

Was the proposed development an “Hotel” or “Short Term Accommodation”?

The proposal in the development application was for an “Hotel”, and not for “Short Term Accommodation”. Zappala’s application to the BCC was for a change of use to “Hotel including 130 Short Term Accommodation Rooms”.⁴⁹ Part of the application required Zappala to identify the definition in the City Plan that was applicable to the proposal; the definition identified in the application was “Hotel”.⁵⁰

At times the submitters also seemed to characterise the proposal as an “Hotel”, referring to it in submissions (before the learned primary judge) as “an extension of an existing Hotel by inclusion of Short Term Accommodation”,⁵¹ and an “hotel development” with “hotel accommodation”.⁵²

The submitters contended before this Court that the proposal came under the definition of “Short Term Accommodation”, and should be approached that way, rather than as an “Hotel”. This would be so if the “hotel … entails mainly accommodation”. The contention was that one should decide the question whether the hotel “entails mainly accommodation” by referring to the GFA attributed to each use. Thus, it was said: accommodation of 132 rooms had a GFA of 5900m2; reception, dining area, lounge bar lobby and administration, a GFA of 700m2; and the conference rooms, meeting rooms and gymnasium, a GFA of 690m2. That meant 5900m2 to accommodation and 1390m2 to other uses, which, the submitters contended, meant the hotel entailed mainly accommodation.

There are a number of reasons why I do not accept that to be the correct approach. First, there is nothing in the definition of “Short Term Accommodation” which points to the use of GFA as the determinant. Nor is there any similar use of the phrase “entails mainly …” elsewhere in the City Plan which might suggest so. Secondly, that approach would lead to arbitrary results. For example, if the GFA for accommodation was 1m2 more than that for other hotel type uses, that approach would have the same result as if accommodation GFA vastly exceeded other uses.

Thirdly, that approach ignores the intensity of the accommodation use. An hotel with rooms of a particular size will accommodate a number of persons in its rooms. The same hotel but with rooms half the size will accommodate double the number, because there are more rooms, even though the GFA for accommodation is the same. Fourthly, that approach also ignores the difference in intensity of use as between accommodation and non-accommodation. An area used for a function room, bar or restaurant may attract far more patrons on a regular basis than were accommodated in the rooms. Why then would such a development sensibly be said to be one that “entails mainly accommodation”?

That is the case here. The evidence suggested, and the submitters’ case accepted, that the existing function/restaurant facility was capable of taking 400 people at a time.⁵³ If that occurred it is more than likely to exceed the number of persons staying at any time in the 132 rooms. There is no suggestion that the proposed development would decrease that level of use; in fact the contrary seems to be the case. From the point of view of intensity of use, then, it would be accurate to say that such a facility did not entail mainly accommodation.

I do not consider that the recitation of the proposed development’s areas in [3] and [4] of the Reasons, suggests that his Honour was finding that this development fell within the definition of “Short Term Accommodation”. The submitters contended that what his Honour said in [41] of the Reasons amounts to such a finding:

“The conflict cannot be justified on the basis that it is in accordance with the respondent’s apparent policy to restrict parking for this type of development in the City Frame Area, in circumstances where Short Term Accommodation is expressly excluded from Acceptable Solution A7.3 and this particular use is a significant parking generator for the proposed development.”

I am not persuaded that his Honour was there finding that the proposed development should be assessed as wholly “Short Term Accommodation” as opposed to stating his reasons for rejecting the applicability of the policy reflected in the TAPS Code. The sentence is devoid of any analysis of the meaning of the phrase “entails mainly accommodation” in the definition of “Short Term Accommodation”, nor any consideration whether the facts of this proposed development come within the definition. Indeed, those matters do not appear anywhere in his Honour’s Reasons. Moreover, while in the first half of that sentence his Honour seems to suggest it is Short Term Accommodation, in the second part of the sentence Short Term Accommodation is referred to as a “particular use”. If it was such a finding, it was made in error.

The development is for an Hotel, and does not come within the definition of Short Term Accommodation, as while the hotel will incorporate short term accommodation, the hotel will not entail “mainly accommodation”. Accordingly, A7.3 applies to the development.

However, it remains to be determined whether A7.2 applies to the proposed development or whether it is excluded from A7.2 by virtue of being a “non-residential use”.

Was the “Hotel” a non-residential use?

The parties’ contentions tended to refer to the hotel room component of the proposed development as “residential use”. However, there is no reason to conclude that any part of the proposed hotel development falls within the description of residential use. As will appear that is a term which connotes long term residence, in a dwelling. Indeed other parts of the City Plan treat an Hotel as being non-residential.⁵⁴ Still other parts use the term “non-residential” as a contrast to “residential”.⁵⁵

That the term “residential” has the connotation of long term or permanent residence has been long accepted. In Pearson v Thuringowa City Council⁵⁶ the Court said:⁵⁷

“… words such as “residence”, “reside” and “residential” … usually connote “a degree of permanent or long-term commitment to the occupation of the premises in question”.⁵⁸

Keane JA went on:⁵⁹

The question in this case is whether the applicant used the shed for "residential purposes". In my opinion, bearing in mind what has recently been said by the Full Federal Court about the meaning of "residential", a building is being used for "residential purposes" when the primary use of the building is as a venue for a function or functions normally undertaken in a dwelling, such as food preparation and consumption, washing or sleeping, in a manner that is not merely temporary or sporadic but is consistent with an intention to use the building for such functions on a permanent or long-term basis. Whether or not the usage to which a building has been put meets this definition will be a question of fact in each case. In the present circumstances, in my view, the applicant's admissions about his persistent use of the shed in order to carry out functions consistent with the use of that building as a dwelling mean that it is not possible to conclude that the learned Magistrate, and the learned District Court judge on appeal, were in error when they found that the applicant had made use of the shed for "residential purposes."

In Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd,⁶⁰ the question was one closer to the present case. A piece of land was the subject of a contract which would be affected by provisions of the Property Agents and Motor Dealers Act 2009 Qld if the land was for “residential purposes”. The land was to be developed into a medium rise resort with accommodation units. Chesterman JA said:⁶¹

“[30]The primary judge found that “most if not all of those using the accommodation units would be transient occupants – in all probability, tourists”. In concluding that the development was “other than for residential purposes” his Honour relied upon the judgments in Pearson v Thuringowa City Council [2006] 1 Qd R 416 in which Keane JA (with whom McPherson JA and Dutney J agreed) accepted that:

“... words such as ‘residence’, ‘reside’ and ‘residential’ ... usually connote ‘a degree of permanent or long-term commitment to the occupation of the premises in question’.”

[31]The Court referred to the judgment of the Full Federal Court in Marana v Commissioner of Taxation (2004) 141 FCR 299 which was concerned with the meaning of “residential premises” in a Commonwealth Act which did not give the term a specific definition. After a very extensive review of dictionary meanings the court concluded:

[26]Clearly, both ‘reside’ and ‘residence’ have the connotation of permanent, or at least long-term commitment to dwelling in a particular place. ...

…

[28]... a hotel was described as ‘[f]irst-class family and residential’. The word ‘residential’ was obviously meant to suggest something other than ordinary hotel accommodation. ... the word ‘residential’ implies a special kind of accommodation, probably long term.

[31](The dictionary) references stress the relationship between the word ‘residential’ and the word ‘residence’, suggesting the aspect of permanent or long-term occupation to which we have previously referred. They recognise use of the expression in connection with hotels but generally suggest that such usage describes a hotel that caters for long-term residents.”

[32]There is no definition of “residence” or “residential” in either PAMDA or IPA. The word must be given its ordinary meaning and connotation which, as Keane JA observed, requires the occupant of the premises in question to live in them over a substantial period. The occupation must be “permanent or long-term”. The trial judge was correct in concluding that the Oasis development was not for residential purposes.”⁶²

The hotel room accommodation does not fit within the established meaning of residential use. It is designed for temporary accommodation. The same is the case for the accommodation entailed within “Short Term Accommodation” which, by its very definition, is the opposite of residential use.

Thus the proposal for “Hotel” was for a non-residential development, and excluded from A7.2 if it was in the City Frame or City Centre, which it was. The same would apply even if the development was characterised as “Short Term Accommodation”. Therefore A7.3 is the only Acceptable Solution applicable to P7 in this case.

Proper construction and application of P7 and A7.3

There was a deal of argument as to the meaning of the phrase in P7, “adequate provision for on-site vehicle parking”. However, it was accepted that if the proposal’s vehicle parking provisions met the Acceptable Solutions for P7, that would be the end of the matter.

A7.2 and A7.3 deal with different aspects of the Acceptable Solutions to P7. A7.2 applies rates for the provision of car parking spaces, but excludes non-residential development in the City Frame or City Centre from its scope. But for that exclusion Table 12 in the Transport, Access, Parking and Servicing Planning Scheme Policy (“TAPS Planning Scheme Policy”)⁶³ specifies what is acceptable. That table sets out the parking rate for various uses. “Short term accommodation” is included but that only applies if any hotel within its definition “entails mainly accommodation”. As discussed above, that is not shown to be the case here.

A7.2 makes provision for “development for any of the uses listed in column 1”. “Hotel” is not one of the uses in column 1. The only reference in either column to “hotel” comes in “Short Term Accommodation” where column 2 specifies a rate “for non-residential component of a hotel”. However, the proviso to A7.2, “except for non-residential development in the City Centre or City Frame”, means that reference cannot apply here, where the proposed development is within the City Frame.

By contrast A7.3 does not use the same form of words as in A7.2, namely referring to “development for any of the uses in column 1”. It does not address the uses at all. It applies to “development in the City Centre or City Frame”. Thus it applies to all development in those designated areas, for whatever use. That is made plain by the rate of 1 space per 200m2 GFA, which is for “any development other than” the three exceptions listed. Therefore the plain words of A7.3 means it applies to any development, except the three exceptions, regardless of the use or uses within the development. Thus reference to the text of the provision leads to the conclusion that the consideration of components of the use (the “sectional approach” as it was referred to) is not warranted.

The context in which the words of A7.3 appear includes:

the language of A7.2, which as discussed above has a different approach to non-residential development outside the City Frame or City Centre;

the identification in column 1 of residential uses, namely “House”, “Multi-unit dwelling” and “Single unit dwelling”; the definition of each of those terms⁶⁴ show that they are for “residential occupation” or use as “the principal place of longer term residence”, and referable to dwellings;

in the case of “Multi-unit dwelling”, none of the examples of things included in that definition are examples of “Short Term Accommodation”; the only one that comes close is “hostel”, whereas in “Short Term Accommodation” the example is “backpackers hostel”, clearly emphasising the short term and non-residential nature of the use;

the definition of “Hotel” which is principally “a use of premises for the sale of liquor for consumption on-site”; by contrast a development for “Short Term Accommodation” would not permit the sale of liquor, unless the development was an hotel which “entails mainly accommodation”;

the definition of “Short Term Accommodation” which reveals that use is directed to accommodation “typically not exceeding two weeks”; and

those parts of the City Plan referred to in [77] above, which treat an Hotel as non-residential, and contrast “non-residential” with the established meaning of “residential”.⁶⁵

What the text, when considered in context, reveals is that an “Hotel” and “Short Term Accommodation” are non-residential uses for the purposes of A7.2 and A7.3.

Thus A7.2 has no application to the proposed development. Further, because A7.3 applies to any development in the City Frame or City Centre, regardless of the mixture of uses in it, except for (relevantly) the defined use “Short Term Accommodation”, A7.3 applies to the proposed development.

What does A7.3 require?

Therefore one must look to A7.3 to see what is acceptable in answer to the required performance criteria in P7. A7.3 specifies an acceptable parking space rate, namely “on-site carparking numbers … do not exceed 1 car space for every 200m2 of gross floor area …”.

Several matters can be noted about A7.3:

it imposes a maximum by specifying that the car parking numbers must not exceed 1 space per 200m2; no mention is made of a minimum;

the acceptable solution is achieved simply by provision of on-site parking that does not exceed the specified rate; no mention is made of off-site parking;

it is considerably less than the rate applicable to a development caught by A7.2; and

it does not apply to “Short Term Accommodation”, but does apply to “Hotel”.

The evident policy behind such a differential in the rate specified in A7.2 and that in A7.3 is the intention to ensure that development in the City Frame or City Centre utilises all transport modes, which includes walking and public transport.⁶⁶ That policy applies in relation to short term tenants, as the TAPS Code reveals. Given the location of this proposed development and its proximity to public transport, such as the Milton Railway Station, that is an understandable approach here.

There is no question that A7.3 does not apply to “Short Term Accommodation”. However, that is a defined term for a use that is not an “Hotel”. The uses are distinct, though each can have an element common to the other. So, an “Hotel” might have a component of short term accommodation, but that does not convert the proposed use from “Hotel” to “Short Term Accommodation”. As discussed above, a proposed use that is “Short Term Accommodation” can be an Hotel, but only where it “entails mainly accommodation”. For the reasons set out above at [67] to [75], this proposed development was an “Hotel”,⁶⁷ not “Short Term Accommodation”. Even if, contrary to my view, the proposed development straddled each definition, it was up to Zappala to choose that which applied and characterise the proposal accordingly.⁶⁸ It did that, designating it “Hotel”.

A7.3 operates to put a maximum limit on the car parks required for development in the City Frame or City Centre, namely one space per 200m2 GFA. That is achieved by the words “carparking numbers … do not exceed 1 car space for every 200m2 of gross floor area …”.

The three exceptions to A7.3 are “multi-unit or single unit dwellings or Short Term Accommodation”.⁶⁹ However, the effect of the exception is not to send one back to A7.2. It is simply that the maximum limit of 1 space per 200m2 does not apply to the three excepted uses. Therefore, in respect of “Short Term Accommodation” in the City Frame or City Centre the Acceptable Solutions do not set out a rate, nor impose a maximum limit. In that case, there would not be a defined rate of car parking in the Table, in which case s 5 applies.⁷⁰ It provides:

“… where a rate of carparking is not defined in the following table, the applicant is responsible for providing evidence in support of the carparking proposed to be provided, for assessment by Council in determining the application.”

The approach of the primary judge to P7 and A7.3.

The development proposed 56 car parking spaces. The question which then fell for decision was: does the provision of 56 car parking spaces satisfy A7.3 and therefore P7?

The learned primary judge held that: “The proposed development is seriously in conflict with performance criterion 7 of the [TAPS] Code”.⁷¹ However, how his Honour reached that conclusion is unclear.

The learned primary judge addressed the issue of provision for car parking at [32] to [42] of his Reasons. Whilst referring to P7, A7.2 and A7.3, and setting out the terms of P7 and A7.3,⁷² his Honour did not examine the proper construction of their terms and the application of that construction to the facts. He did hold that there was serious conflict with P7 and impliedly rejected the application of A7.3 in these terms:

“I find that the proposed development is seriously in conflict with performance criterion 7 of the Transport Access, Parking, and Servicing Code. The conflict cannot be justified on the basis that it is in accordance with the respondent’s apparent policy to restrict parking for this type of development in the City Frame Area, in circumstances where Short Term Accommodation is expressly excluded from Acceptable Solution A7.3 and this particular use is a significant parking generator for the proposed development. Milton is an area which already suffers from significant parking constraints. The existing hotel and restaurant on the subject site already generates a demand for parking which is not always accommodated within the existing facility. The failure of the co-respondent to provide adequate parking is a result of its desire to build the proposed development over the existing basement, presumably to save construction costs. This outcome represents bad planning in circumstances where the parking situation in Milton is only going to deteriorate as development in the area intensifies.”⁷³

Three traffic engineers were called: Mr Pekol for Zappala, Mr Beard for the BCC, and Mr Holland for the submitters. His Honour dealt with their evidence at [36] to [40] of the Reasons.

The aspect of Mr Pekol’s evidence that his Honour recorded was his conclusion that “likely demand for parking spaces attributable to the proposed development was up to 70”.⁷⁴ It was noted that Mr Pekol had applied A7.3 in his approach. The aspect of Mr Beard’s evidence that was noted was that:

“the demand generated by the proposed development would probably be up to 100 or 110 spaces on rare occasions and that the “design peak demand” which is likely to occur 30 - 50 times a year is in the region of 80 car parking spaces”.⁷⁵

The part of Mr Holland’s evidence that his Honour focussed on also related to demand: “… he concluded that there would be a likely demand for parking well in excess of the number of parking spaces to be provided by the proposed development”.⁷⁶ His Honour went on:

“Both Mr Holland and Mr Beard noted the extreme difficulties associated with parking on the street in circumstances where the proposed development was in the vicinity of Suncorp Stadium and parking restrictions regularly applied. Curiously however, both Mr Beard⁷⁷ and Mr Holland⁷⁸ expressed the view that the proposed development should not be refused because of the inadequate provision of parking. However, both Mr Beard and Mr Holland stated that the inadequate provision of parking was not a good outcome having regard to the increased development in the vicinity. Mr Beard expressed the view that the lack of parking provision would make the subject site “a difficult place to run this sort of facility”.⁷⁹ Mr Holland was of a similar view.⁸⁰ The basis for their position, in terms of whether the development should be refused because of the provision of inadequate parking, is therefore unclear. In any event, the ultimate decision in this regard rests with me, not them. Although the respondent identified a car park facility some distance from the subject site in Little Cribb Street, with the capacity to provide up to 348 car parking spaces,⁸¹ the utility of this facility to the proposed development was not explored with the traffic engineers who gave evidence and I find that it will have a negligible impact on the demand for on-street parking created by the proposed development.”

It is apparent that the learned primary judge focussed his attention on the question of whether the parking demand could be met on-site, and if not, the corresponding “demand for on-street parking created by the development”. There appears to be no analysis as to whether A7.3 had been met by the proposal; or to put it in the language of A7.3, whether the proposed car parking rate met what was required for an acceptable solution.

His Honour evidently held that A7.3 did not apply for three reasons: first, that “Short Term Accommodation” was excluded from A7.3; secondly, that part of the proposed development which was for short term accommodation was “a significant parking generator for the proposed development”; and thirdly, that the car parking demand would not be accommodated on-site.

As shown above, the conclusion that “Short Term Accommodation” was excluded from A7.3 is irrelevant to the question whether A7.3 is met when the development is “Hotel”. Thus, attention can be turned to the second and third reasons.

Is there conflict with P7 because: the hotel rooms are a significant parking generator; and car parking demand cannot be met on-site?

Whilst it may be that the accommodation component of the proposed development was a “significant parking generator” for it, that does not turn what is an “Hotel” into “Short Term Accommodation”.

Further, the finding that the accommodation component was a “significant parking generator” for the development giving rise to serious conflict with P7, cannot be sustained. The extent of any conflict with P7, generated by the hotel accommodation, was revealed in the joint reports of the traffic engineers, namely that the demand for car parks generated by the accommodation portion was between 33 and 44 spaces, well short of the figure specified for a development falling within “Short Term Accommodation”.

Even if one could use A7.2 and A7.3 on a “sectional basis”⁸², the result would be:

non-residential component 1390m2, therefore seven spaces required by A7.3;⁸³

accommodation, 44 spaces as determined by the experts;

still short of the 56 spaces provided in the proposal.

It is therefore difficult to see the justification for the finding of serious conflict. Indeed, even the submitters’ expert, Mr Holland, expressed the view that the proposed development should not be refused because of inadequate provision for parking.⁸⁴

The traffic experts largely agreed as to the overall design peak parking demand. Mr Beard said it was 80 spaces, occurring 30 to 50 times a year.⁸⁵ Mr Pekol said it was up to 70 spaces.⁸⁶ All three agreed that the design peak parking demand from the accommodation portion was such that the required car parking for that portion was between 33 and 44 spaces:

“It was agreed that the residential component of the hotel would not generate an on-site parking demand for 140 spaces (one space per room), and that the parking demand was more likely to be one space per 3 or 4 rooms (Mr Pekol considers one space per 4 rooms to be most appropriate). That is the residential hotel is likely to generate a design peak parking demand of between 35 and 47 spaces.”⁸⁷

That was evidence from all three sides of the case as to a factual matter, namely what was the likely demand for car spaces from the accommodation component of the development. Thus, even the submitters’ evidence was that the hotel rooms did not require one space each, rather only one space per three to four rooms.

That evidence meant that at times of design peak demand the 56 spaces were well in excess of what was required for the accommodation component (33 to 44) which meant the balance was attributable to the other components, i.e. restaurant, function rooms and bar.

On the evidence a finding that the accommodation component was the significant parking generator that caused conflict with P7 was not open.

In any event, as discussed above, the fact that the demand for car parking might not be met on-site is something which is contemplated by A7.3, and recognised in the purpose of the TAPS Code, part of which purpose is to: “… ensure that development utilises all relevant transport modes, including walking, cycling and public transport …”.⁸⁸

The difficulty with the learned primary judge’s approach is that if A7.3 was inapplicable, that left only A7.2 as an Acceptable Solution to P7. Even if one took the view that the short term accommodation component of the proposed development could be assessed under A7.2 that would lead to the requirement of one car parking space per unit.⁸⁹ That meant 132 car parks because of the 132 accommodation units in the proposed development. In other words, the set rate implicitly reflected a demand for car parking spaces at one space per room. However, all three traffic engineers rejected that as appropriate. In their third joint report they agreed that the demand was likely to be one space per three or four rooms.⁹⁰ That meant a range of 33 to 44 spaces.⁹¹ In fact 56 spaces were provided in the proposal.

However, his Honour did not find that A7.2 was applicable or that the proposal did not comply with it. The submitters contended that a fair reading of his Honour’s Reasons at [32] to [42] confirms that he proceeded on the basis that the proposal did not comply with A7.2. I am unable to accept that. The bare reference to A7.2 followed by the quotation (in full) of A7.3,⁹² and then the reference to A7.3 in [41], demonstrates that his Honour did not apply A7.2, and there was, therefore, no occasion to make a finding that the proposed development did not comply with A7.2.

The learned primary judge’s approach was to focus on “inadequate provision for on-site parking”.⁹³ It is that which was examined in terms of whether the demand for car parking generated by the proposed development could be accommodated on-site by the 56 car spaces, and whether it would impact on the demand for on-street parking.⁹⁴

His Honour held that the “conflict cannot be justified” by A7.3.⁹⁵ That is an apparent reference to s 326(1) of the Sustainable Planning Act 2009, which provides:

“326Other decision rules

The assessment manager’s decision must not conflict with a relevant instrument unless –

(a)the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or

(b)there are sufficient grounds to justify the decision, despite the conflict; or

…”

In applying s 326(1) the Court must, inter alia, examine the nature and extent of the conflict.⁹⁶ That step did not occur here as the learned primary judge considered, wrongly, that A7.3 was inapplicable because “Short Term Accommodation” was excluded from it.

The error in the learned primary judge’s approach was to find that the proposal was in conflict with P7, when in fact it came within A7.3 which provided the acceptable solution to the on-site parking for this development. That was an error of law which should be corrected.

The submitters’ contentions included two points: first, the proposed development was properly characterised solely as “Short Term Accommodation”, therefore being excluded from A7.3 and coming within A7.2; and secondly, if the development did not come within A7.3 then that necessarily meant that it was in conflict with P7.

The first point cannot be sustained, for the reasons set out above at [67] to [75].

However, even if the submitters’ contention was correct, for the reasons set out above at [77] to [82] and [84] to [95], the application would fall to be assessed, not by reference to A7.2 nor by imposing the “not to exceed 1 space per 200m2” formula in A7.3, but by reference to the evidence touching on whether P7 was met by what was proposed. That inevitability leads back to the evidence of all three traffic engineers, namely that the provision of only 33 to 44 spaces for the hotel room component was all that was required. For the reasons expressed above the learned primary judge erred in not dealing with that evidence.

As to the second point, non-compliance with an Acceptable Solution does not ipso facto result in conflict with the Performance Criteria.⁹⁷ The Acceptable Solutions are merely preferred ways to comply, not the only ways. Put another way, if one complies with an Acceptable Solution then the Performance Criteria will be met; if one does not comply with an Acceptable Solution the Performance Criteria may still be met notwithstanding that.

The applicants are entitled to succeed on this ground.

The primary judge’s rejection of the traffic engineer’s evidence and inadequate reasons for doing so.

Zappala’s contentions were that there were three possible, and alternative, approaches one could take to assessing matters under A7.2 and A7.3. They were:

the development is for an “Hotel”, which is a non-residential use;

the development could be treated as “Short Term Accommodation”; or

the component parts could be assessed, the 132 accommodation rooms being treated as “Short Term Accommodation” and the rest as non-residential.

On the proper construction of A7.3 there is no requirement to look at the various components of use in the proposed development. Rather A7.3 applies to impose a maximum number of required spaces, at the rate of one space per 200m2 GFA to the entire development.

However, all sides made submissions based on the third approach identified by Zappala, namely that one looks at a rate for the hotel rooms (treating it as “Short Term Accommodation”) and another rate for the “non-residential” component, i.e. all the area not used for hotel rooms. The traffic engineers used the same approach in their reports. Under that approach a strict application of A7.2 would require that there be 132 car spaces for the 132 hotel rooms. The remaining areas, with a GFA of 1390m2, would require seven spaces, applying A7.3.⁹⁸

However, it was contended, the strict application of A7.2 was not called for given the unanimous view of the traffic engineers, that the demand for car parking would only be one space per three to four hotel rooms. Since the Acceptable Solutions were not the only way to satisfy P7, but merely the preferred way, it was contended that the evidence of the traffic engineers should have been accepted as showing that only 33 to 44 spaces were required for the demand generated by the hotel rooms.

If the sectional approach were, contrary to my view, the correct way to approach the application of A7.2 and A7.3, the traffic engineers’ evidence (that only 33 to 44 spaces were required to meet the requirement for the hotel rooms) would be a compelling reason to find that P7 was met by the provision of 33 to 44 spaces for the hotel room component.

However, it appears that the learned primary judge did not deal with that evidence. Whilst aspects of the traffic engineers’ evidence are noted at [36], [39] and [40] of the Reasons, nowhere does his Honour refer to the jointly held view that the demand for car parking generated by the hotel rooms would be less than one space per room, and only one space per three - four rooms. Nor is the assessed range of 33 to 44 spaces referred to.

It seems plain that the traffic engineers’ conclusion that only 33 to 44 spaces were needed for the hotel room component was the reason why each of them said that the application should not be refused on grounds of inadequate parking. The learned primary judge’s failure to advert to that evidence may be the reason why his Honour characterised that recommendation as curious.⁹⁹ It would also explain the statement: “The basis for their position, in terms of whether the development should be refused because of the provision of inadequate parking, is therefore unclear”.¹⁰⁰

In my view the learned primary judge’s failure to deal with that part of the traffic engineers’ evidence contributed to his conclusion that there was serious conflict with P7. On any view that evidence showed there was no conflict. There was no reason why that evidence should have been rejected. In this regard the learned primary judge fell into error.¹⁰¹

This ground of appeal succeeds.

Inadequate reasons

Zappala’s contention was that the learned primary judge erred because he failed to explain, in a reasoned way, why he rejected the unanimous view of the traffic engineers that the proposed development should not be refused because of inadequate parking. Reliance was placed on authorities such as Liverpool City Council v Turano¹⁰²; Wiki v Atlantis Relocations (NSW) Pty Ltd¹⁰³; and Flannery v Halifax Estate Agencies Ltd.¹⁰⁴

That contention must be accepted once the failure to deal with the important part of the traffic engineers’ evidence is revealed. That was the reason for their view that the development should not be refused for inadequate parking. His Honour took the contrary view, focussing on the impact on on-street parking, but because of the failure identified, did not offer a reasoned explanation for doing so.

This ground of appeal succeeds.

Grounds based on lack of evidentiary support for findings

One matter raised by Zappala is that certain findings by the learned primary judge had no proper evidentiary basis. This focussed on that part of [40] of the Reasons where his Honour said:

“However, both Mr Beard¹⁰⁵ and Mr Holland¹⁰⁶ stated that the inadequate provision of parking was not a good outcome having regard to the increased development in the vicinity. Mr Beard expressed the view that the lack of parking provision would make the subject site “a difficult place to run this sort of facility”.¹⁰⁷ Mr Holland was of a similar view.”¹⁰⁸

The first passage cited from Mr Beard’s evidence is:

“You then look at the broader community and know there is a pretty fierce competition for car parking in that area generally. If you’re talking about State of Origin nights, nobody gets a car parking space. And then the third thing is, really, the operator themselves. Now, is this a good location for this particular use or is it going to be pretty hard to – to, in fact, make it work because you are going to be relying substantially on on-street car parking, which 40 or so nights a year is simply not going to be available at all? Then that’s going to be pretty difficult, but when all’s said and done, it’s certainly not the traffic engineer’s job to judge the financial viability of the proposal.”¹⁰⁹

The second passage is:

“And, in expressing those views, you do take into account the potential for redevelopment of this Milton area that his Honour has referred to in this context in this appeal?--- Yes. Look, that’s just going to make it more difficult. As I said, it probably makes it, ultimately, a difficult place to run this sort of facility but that’s not my job.”¹¹⁰

The same passage of Mr Holland’s evidence is cited for both references:

“MR LITSTER: What happens with the overflow parking, Mr Holland?--- It will – for – during a business day and I think on some nights there’s intense pressure on kerbside parking there at the moment. Obviously overflowed parking will increase that pressure. As redevelopment occurs in the area, the pressure will become greater. For instance, parking at a apartment buildings – the parking requirement for apartment buildings accepts there will be some kerbside parking. The rates that are required in a town plan do not provide for all parking [indistinct] on site, except there will be some kerbside parking [indistinct] by visitors to apartment buildings. As the area develops and particular if it’s principally apartment buildings, people would have a – I suppose a legitimate need or intent to visit people in the area who live there to be visitors to apartment buildings. They would be distinctly disadvantaged, because (a) any overflow of visitor parking probably won’t be able to occur and [indistinct] I can say that my wife has got a very good friend in the city, and she just doesn’t go there because it’s just too hard to park in an apartment building where visitor spaces are provided. They’re always occupied, there’s no kerbside parking, she doesn’t go. I know that sounds [indistinct] but I think that situation would apply in this area of [indistinct] if the area develops – redevelops primarily for apartment buildings.

So it goes onto a street and sorts itself out in some fashion does it?--- Well, I suppose the end result and I know it’s [indistinct] to me is you just refuse to go to that area. I mean if a consultant say let’s have an expert meeting at my office at Milton, I’d say, you can have your meeting on your own, I’m not coming.

HIS HONOUR: I just wonder, from where I sit, whether that’s a good planning outcome or not?--- It’s too hard, your Honour, you know. Come to my place, you can park right outside the front door. Convenient. And I think that would be the end result, that a deterrence in interaction of people that were living there and I personally think it will have an impact on the operation of this business because you wouldn’t be able to park there.

MR LISTER: Why do parking controls – parking demand for a development – sorry, I’ll start again. With developments, do parking demands look to be accommodated on site as a starting point?--- In the main, they do, except – the only case I can think of which doesn’t is the case I’ve already explained, being the case that these are paid for apartment buildings. It’s accepted that some visitors will park on the street, and it’s evident to anyone that drives around the street that where there’s relatively intense apartment building developments, there’s very heavy kerbside parking day and night.”¹¹¹

A number of things are evident from Mr Beard’s evidence. To the extent he suggested that it would be a “difficult place to run this sort of facility”,¹¹² he was answering a question directed to the demand for on-street parking and whether, in the context of the appeal, it was acceptable or unacceptable.¹¹³ Insofar as he expressed a view about the impact on the operator of the facility he made it clear it was not his area of expertise.¹¹⁴

There is therefore no factual support for the second part of the passage cited above from [40] of the Reasons.

Mr Holland’s comment was similarly qualified as being his personal view.¹¹⁵

Mr Beard’s evidence offered no foundation for the first comment attributed to him, namely “not a good outcome”.¹¹⁶ His evidence, leaving aside his personal unqualified view as to the operation of the facility, was that the impact was not so great as to warrant refusal, notwithstanding that there was already competition for on-street parking, and that would increase.

Mr Holland’s evidence (leaving aside his personal comment on operation of the business) at the page referred to was in answer to a question directed as to why he had the view that overflow of parking was not a refusal issue.¹¹⁷ He said: there was pressure for on-street parking already, and that would increase as redevelopment occurred; the town plan recognised that there would be on-street parking for apartment buildings, and visitors to apartment buildings would be disadvantaged; and that might lead to visitors to the area being deterred because parking was hard to come by.

However, that was said in explanation of why the parking issue was not a basis to refuse. It hardly provides a foundation for the contrary proposition, which was what was attributed to him.

Submitters’ Notice of Contention

Counsel for the submitters accepted that if the Court found A7.3 applied then grounds 1 and 2 of the Notice of Contention would fail.

Ground 3 was pressed. It was that the proposal was in conflict with Ch 2, s 4.2.2.1 of the City Plan. That provision is part of s 4.2 which applies to “Residential Neighbourhoods”. It provides

“People should be able to choose their residential location with realistic expectations for the future amenity of the area. The Plan’s strategic directions in this regard are to:

…

protect views from the impact of development only where nominated in a Local Plan, or where development exceeds the relevant Code’s acceptable solution for building height, and as a result detracts from views from nearby properties.

These community expectations also need to be balanced with expectations of housing choice to meet resident needs during all stages of their life and to meet different lifestyle choices …”¹¹⁸

The contention is that the applicable code is in the Milton Local Plan 2006 and Milton Local Plan 2011. Acceptable Solution A1.2 of that Code¹¹⁹ refers to Table 2¹²⁰ which specifies a maximum height of four storeys. The proposed development is 15 storeys. It is contended that whilst the learned primary judge referred to the height of the development and loss of views for five apartments in the Coronation Residences, he made no finding on this issue.

Before the learned primary judge the submitters contended that, relevantly, views would be lost to a number of residents, and replaced with views into the rooms in the proposed developments.¹²¹ This was said to constitute part of the “amenity impacts” of the proposed development.¹²²

The contention that there was relevant conflict because of the height of the proposed development and its impact on views cannot be sustained. Section 4.2.2.1 only applies:

to protect views “where nominated in a Loca1 Plan”; or

where the development exceeds the relevant code’s acceptable solution for height and as a result detracts from the views.

As to the first point, there was no evidence that any relevant view was nominated for protection in a Local Plan.

As to the second, the learned primary judge noted that the ground was advanced, specifically referring to s 4.2.2.1,¹²³ and then addressed “the alleged unacceptable amenity impacts” including “loss of views” as dealt with by Zappala’s town planner. His Honour said:

“Before examining, in detail, the question of conflict with provisions of City Plan, I wish to explore the alleged unacceptable amenity impacts on occupiers of apartments in the adjacent Coronation Residences building. Mr O'Brien explored in great detail in his evidence the prospective impacts from the perspective of loss of views, overlooking, loss of privacy, loss of sunlight and sun penetration and visual intrusion. He was assisted in this regard by photomontages prepared by Mr Elliott, an experienced architectural draftsman who has both the expertise and the necessary equipment to prepare such representations. Mr Elliott also gave evidence. I am satisfied that there will be amenity impacts of the types explored in the evidence of both Mr O'Brien and Mr Elliott. Approximately 5 apartments out of the 48 in the Coronation Residences building will suffer a very significant loss of the views available to them.¹²⁴ Obviously there are also similar losses in terms of breezes, sunlight and sun penetration. However, in respect of issues concerning overlooking and loss of privacy, I am satisfied that the co-respondent has undertaken appropriate treatments to the windows of the proposed development which address any legitimate concerns in this regard.”¹²⁵

Clearly his Honour found that the loss of views was as the submitters contended, but that even if there was a conflict with s 4.2.2.1 there were grounds justifying approval of the proposal.

Whilst his Honour did not expressly refer to “views” again after the reference in [24] of the Reasons, he did deal with “overlooking and loss of privacy” which were part of the complaint about loss of views. He concluded that section of the Reasons, entitled “Conflicts and grounds generally”, in this way:

“Notwithstanding the conflicts identified above, these grounds in favour of that application as a whole are, on balance, sufficient to justify approving the proposed development.”¹²⁶

In my view it cannot be demonstrated that the learned primary judge failed to deal with this ground, or that there was any error in the way he did.

Ground 5 was also pressed. It concerns an alleged error in finding that the provisions of the City Plan were “incongruous”. That is a reference to what was said in [29] of the Reasons:

“Grounds which are relevant to the above conflicts are that the designation of the subject site in the Office Precinct of the Milton Local Plan is anomalous as it fails to take into account not only the long standing hotel use on the subject site but also the presence of Coronation Residences itself which shares this designation. The only planner who attempted to justify the status quo was Mr Brown who was called by the appellants. Mr Brown expressed the view that the purpose of this designation was to protect the amenity of unit holders in the Coronation Residences building. I find this explanation extraordinary from a planning perspective and I reject it. Significantly, the other planners who gave evidence, Mr Forsyth and Mr Kay readily conceded this designation of the subject site pursuant to the Milton Local Plan is incongruous. I am also of the view that the designation of the subject site is incongruous. The other ground which I find relevant to the conflict is that the development which has been constructed and which is approved in the vicinity, including Coronation Residences and the immediately adjoining four 20 storey towers to the west, are such that the restrictions on the subject site, as a consequence of not only the Milton Local Plan but also the intent of the High Density Residential Area provisions, have been overtaken by events. There is no basis for contending that McDougall Street acts as some sort of buffer between less intensive development and more intensive development when regard is had to the Milton Station Neighbourhood Plan.”¹²⁷

As is evident from what his Honour said, the point arose because the subject site was designated in the Office Precinct of the Milton Local Plan. Relevant to the conclusion that it was incongruous to have this site in the Office Precinct were these matters:

the Office Precinct was intended to limit the height of developments to four storeys and for office purposes; yet the Coronation Residences themselves, and the existing use on the subject site, were contrary to that; even if, as the submitters contend,¹²⁸ those two sites were originally in a High Density Residential Precinct when approved, and only included in the Office Precinct in 2006, that does not remove the incongruity;

only one of those town planners who gave evidence tried to justify why there was no incongruity; his evidence was rejected on this point; and

the Milton Local Plan had, in effect, been overtaken by events, which included the approval of four 20 storey buildings on an adjacent site to the west.

The additional matters urged by the submitters¹²⁹ do not detract from the learned primary judge’s finding, which was open on the evidence. They are all factual matters which, it is said, would have led the learned primary judge to:

“recognise the deliberate planning decision evidence in the planning controls that applied under the Milton Local Plan Code (which applied to the subject site) and those that applied under the Milton Station Local Plan”.

However, the extra facts referred to do no more than show that the Coronation Residences and the subject site both remained in the Office Precinct.

Moreover, the planning history of the subject site was dealt with comprehensively by Mr Forsyth, whose evidence was accepted. In his review he adverted to the substance of the extra matters subsequently raised in the Notice of Contention,¹³⁰ but nonetheless formed a view about the planning intent contrary to that advanced in the submitters’ submissions.¹³¹

It was open to the learned primary judge to accept Mr Forsyth’s evidence, supported as it was by another town planner, Mr Kay.

I do not consider that ground 5 has been made out.

Grounds 6 and 7 were not pressed. The remaining grounds were all contingent on success in respect of grounds 3 and 5.

Conclusion

Zappala and the BCC have succeeded in demonstrating errors of law in the approach of the learned primary judge, such as would warrant the grant of leave to appeal, and for the appeals to be allowed. The grounds raised in the Notice of Contention have not succeeded.

I would order that:

The applicant in 6993 of 2013, Zappala Family Co Pty Ltd, be granted leave to appeal.

The applicant in 7117 of 2013, Brisbane City Council, be granted leave to appeal.

The appeal in 6993 of 2013 be allowed.

The appeal in 7117 of 2013 be allowed.

The order of the primary judge dated 24 June 2013 be set aside, and in lieu thereof the second respondents’ appeal to the Planning and Environment Court be dismissed.

In 6993 of 2013 the second respondents pay the appellant’s and first respondent’s costs of the application and appeal, and of the proceedings below.

In 7117 of 2013 the second respondents pay the appellant’s and first respondent’s costs of the application and appeal.

DOUGLAS J: I agree with the reasons of Morrison JA and the orders proposed by his Honour and gratefully adopt his Honour’s analysis of the issues.

The focus by the learned primary judge on the parking issue, particularly on on-street parking, appears to have been one of his own making.¹³² His Honour erred if he characterised the proposal as “short term accommodation” for the purposes of Acceptable Solution A7.3 rather than as a “Hotel” and in treating the accommodation component of the “Hotel” as a significant parking generator. He also erred in failing to conclude that the proposal complied with the requirement for “adequate” provision of on-site vehicle parking in P7 of the TAPS Code, having regard to the Council’s policy in the City Frame Area and to the opinions of the three experts called in the case.

As was submitted for the applicants, those errors materially affected the decision. Had his Honour correctly construed P7 and A7.3 and acted on the uncontradicted traffic engineering evidence that the parking demand of the short term accommodation was 33 to 44 spaces, the finding of conflict with performance criterion P7 was unsustainable, so that the appeal to the Planning and Environment Court should have been dismissed.

Footnotes

1. AB 572. ↩

2. Clelland v Brisbane City Council [2013] QPEC 27 (“Reasons”). ↩

3. Reasons [3] and [4]. ↩

4. The difference in storeys is attributable to the topography of the site. ↩

5. SPA, s 326. ↩

6. SPA, Sch 3. ↩

7. City Plan, Ch 3. ↩

8. City Plan, Ch 3, s 5. ↩

9. City Plan, Ch 3, s 5.1.1, DEO No. 9. ↩

10. See Reasons [16]. ↩

11. See “Map B – Office Precinct, Sub-precincts and Special Areas” of the Milton Local Plan. ↩

12. Milton Local Plan, s 3.3. ↩

13. Milton Local Plan, s 4.3. ↩

14. City Plan, Ch 2, s 3.5.2.2 (e). ↩