Australia: Charity begins in Herston: performance-based interpretation of development criteria leads to approval

In brief - Development found to be not in conflict with Brisbane City Plan

In the matter Cox & Ors v Brisbane City Council [2013] QPEC 044 His Honour Judge Rackemann dismissed the submitter appeal and allowed the co-respondent, a charity providing family-style accommodation for people dealing with childhood cancer, to proceed with its proposal for a multi-unit dwelling in the Brisbane Character Residential Area.


This case involved a submitter appeal against a development which comprised a multi-unit dwelling in Herston, in the Character Residential Area of Brisbane, proposed by a charity which provided family-style accommodation for people dealing with childhood cancer.


Brisbane City Council approved development for 10 year period
Childhood Cancer Support Inc sought a development approval to relocate and refurbish an existing house, convert it into a unit and construct three new additional units behind the existing house, which would provide residential accommodation for people with special needs.

Brisbane City Council approved the development application subject to conditions, including conditions relating to the design and use of the premises to mitigate its impacts and requiring restriction of the proposed development to those with special needs for a period of 10 years. This afforded the proposed development a development bonus referred to in the Brisbane City Plan 2000 ("the City Plan").

Residents argued that development would compromise local amenity
There were four appellants, residents who were submitters against the proposed development, contending that the proposal was an over-development and conflicted with the relevant provisions of the City Plan. Further, they argued that the proposed development should be characterised as "generally inappropriate impact assessable" development and would compromise the local amenity.

The council and Childhood Cancer Support denied that the proposed development was an over-development and denied conflict with the City Plan. They argued that to the extent there was any conflict, there were sufficient grounds to justify an approval of the proposed development despite any conflict.


Court acknowledged pressing need for special needs residential accommodation
The court was satisfied there was a need for the proposed development, given that there was a recognised demand and pressing need for the type of accommodation and facility proposed by Childhood Cancer Support. The court noted that the proposed development would offer an opportunity to address this pressing need in part.

Court found that development generally consistent with Brisbane City Plan
The City Plan included the subject site in the Character Residential Area, and therefore in a Demolition Control Precinct. A multi-unit dwelling was characterised as "impact assessable - generally appropriate" where complying with the Residential Design – Low Density, Character and Low-medium Density Code ("the LMR Code") and where pre-1946 houses were retained.

Subject to effective management of the impacts of new development, the court noted that the LMR Code envisaged new multi-unit dwellings, incorporating the pre-1946 dwelling in the development.

The court was satisfied that the proposed development was generally consistent with the Demolition Code and the Residential Design - Character Code, given that the traditional character of the streetscape and the pre-1946 character of the existing house would be retained and enhanced.

The court acknowledged that the design of the proposed new units was responsive to issues of bulk and scale and that the proposed development was located and treated in a way which minimised its impact on the low density nature of the locality. In this regard, the court observed that the proposed development, overall, would present as a single house when viewed from the front and as three building components when viewed from the side neighbours.

City Plan allowed for possibility of departure from "acceptable solutions"
The principal argument of the residents who opposed the development was that the determination on whether there was compliance with the LMR Code should be based upon compliance with the relevant acceptable solutions.

The court observed that a departure from an acceptable solution itself would not establish conflict with the applicable code. This was supported by the City Plan itself, which included that:

  • performance criteria "provide a statement of the outcome that the acceptable solution must achieve"
  • a proposal not complying with an acceptable solution must provide sufficient information to demonstrate how the corresponding performance criterion has been met
  • there may be other ways of complying with the performance criteria while still meeting the code's purpose

Accordingly, as observed by the court, the City Plan itself contemplated departure from the acceptable solutions whilst meeting the performance criteria, which was a familiar performance-based approach.

Performance-based approach to establishing compliance with City Plan
By taking a performance-based approach, insofar as it related to issues associated with building size, bulk and height, gross floor area and setbacks, the court was satisfied that, with the proposed development deserving of a development bonus, which was offered to encourage low cost and special needs housing, the proposed development overall was not in conflict with the LMR Code.

After having considered the residents' individual concerns about the impact of the proposed development on their properties and the amenity of the locality, and having regard to the intent of the relevant provisions of the City Plan, the court was satisfied that the proposed development would not be "unduly overbearing" and would not compromise local amenity.

Sufficient grounds to approve development proposal - appeal dismissed
The court found that, despite its departure from the acceptable solutions, the proposed development did not conflict with the City Plan, including, in particular, the LMR Code. The court was therefore satisfied that the proposed development was properly characterised as "impact assessable - generally appropriate development".

The court further noted that, in the event that a conflict was found with performance criteria of the LMR Code, conditions of approval would have been able to mitigate potential impacts adequately.

Further, if a conflict with the LMR Code and the criteria for generally appropriate impact assessable development (for reasons other than unacceptable impacts on amenity) was found, there would have been sufficient grounds to approve the proposed development notwithstanding the conflict.

Accordingly, the court dismissed the appeal, with the parties being given an opportunity to be heard on conditions of approval.


The appeal was dismissed.

Ronald Yuen Jamon Phelan-Badgery
Planning and environment
CBP Lawyers

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