Australia: 26/14 - Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors

P & E Court Updates - June 2014

(McMurdo P, Morrison JA and Douglas J - 20 June 2014)
Download the judgment

Appeal and new trial – appeal – practice and procedure – Queensland – when appeal lies – by leave of Court - generally – where Brisbane City Council (BBC) 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 BCC to approve a development application by Zappala – whether leave to appeal should be granted

Facts: These were applications by Zappala Family Co Pty Ltd (Zappala) and Brisbane City Council (Council) seeking leave to appeal against the Planning and Environment Court's decision to uphold a submitter appeal against Council's decision to approve Zappala's development application for a hotel on land situated at McDougall Street, Milton.

The site was already improved with an operational three storey hotel (the "Coro") that did not provide for accommodation. The proposal was for a hotel incorporating short term accommodation (132 rooms), conference facilities, gym, dining, bar and lounge areas and 56 on-site car parks.

The submitters were unit owners in Coronation Residences, which was a 10 storey building located between the subject site and Coronation Drive.

The relevant planning scheme was the Brisbane City Plan 2000 (City Plan). The Court considered 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 (TAPS Code).

Performance Criteria P7 and Acceptable Solutions A7.2 and A7.3 of the TAPS Code were at the centre of the Court of Appeal proceedings.

P7 required that vehicular parking must not detract from the amenity of an area, must discourage on-street parking and must be consistent with pedestrian and cyclist access.

A7.2 required on-site car parking to comply with a table in the Transport, Access, Parking and Servicing Planning Scheme Policy, except for "non-residential development in the City Centre or City Frame". It was common ground that the site was in the "City Frame".

A7.3 required on-site car parking within the City Centre or City Frame to not exceed 1 space for "every 200m2 of gross floor area for any development other than multi-unit or single unit dwellings or Short Term Accommodation".

At first instance the disputed issues included conflict with City Plan, density, bulk and scale, amenity impacts and traffic impacts resulting from inadequate on-site parking.

The primary judge found that the proposed development would conflict with two planning provisions, namely the Milton Local Plan because a 15 storey hotel was not commensurate with the intent of the Office Precinct where the site was located, and the High Density Residential Area because the proposed development exceeded 10 storeys. However, it was determined that that there were sufficient grounds to justify approval despite those conflicts.

The primary judge went on to consider the issue of traffic impacts. In evidence, Zappala's expert conceded that the likely demand for car parking spaces was up to 70. Council's expert thought "design peak demand" was in the region of 80 car parking spaces. The submitters' expert concluded the likely demand was well in excess of the proposed number of spaces. All three agreed that the design peak parking demand from the accommodation portion of the development was between 33 and 44 spaces. Both Council's expert and the submitters' expert expressed the view that the proposal should not be refused because of inadequate parking.

On the basis of that evidence, the primary judge found that the proposed development seriously conflicted with Performance Criteria P7 of the TAPS Code and held that the conflict could not be justified on the basis that it was in accordance with Council's apparent policy to restrict parking in the City Frame Area because:

  1. Short Term Accommodation was expressly excluded from A7.3 and the particular use was a significant parking generator for the proposed development;
  2. Milton was an area which already suffered from significant parking constraints; and
  3. The existing hotel and restaurant on the subject site already generate demand for parking that was not always accommodated within the existing facility.

The grounds of appeal raised in the applications turned on the primary judge's interpretation of parts of the City Plan and TAPS Code.

Decision: The Court held in granting leave to appeal and allowing the appeals:

  1. It was appropriate to grant leave to appeal. If the Applicants succeeded on the grounds of appeal, which if correct clearly raised errors of law, the consequence was that Zappala's application for approval was incorrectly rejected by the Planning and Environment Court. That was a substantial indication in favour of the grant of leave.
  2. The same principles which applied to statutory construction applied to the construction of planning documents.
  3. The proposal was for a Hotel and as such it did not come within the definition of Short Term Accommodation.
  4. The proposal was not for a residential development and was excluded from A7.2 The same would apply even if the development was characterised as Short Term Accommodation.
  5. A7.3 was the only Acceptable Solution applicable in the circumstances.
  6. The primary judge focussed attention on the question of whether parking demand could be met on-site. There was no analysis of whether A7.3 had been met by the proposal.
  7. On the evidence, a finding that the accommodation component was the significant parking generator that caused conflict with P7 was not open.
  8. The primary judge's finding that the proposal was in conflict with P7, when in fact it came within A7.3 was an error of law which should be corrected.
  9. On a proper construction of A7.3 there was no requirement to look at the various components of use in the proposed development. A7.3 applied to impose a maximum number of required spaces at a rate applicable to the entire development.
  10. It seemed 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 the proposal should not be refused. The primary judge's failure to deal with the traffic engineers' evidence contributed to the conclusion that there was serious conflict with P7. On any view that evidence showed there was no conflict. In that regard the learned primary judge fell into error.
  11. The primary judge erred in failing to explain why the unanimous view of the experts that the proposed development should not be refused was rejected.
  12. In relation to the contentions raised by the Submitters:
    1. It was not demonstrated that the learned primary judge failed to deal with the "loss of views" of the Submitters, or that there was any error in the way he did.
    2. The primary judge's finding that it was incongruous for the site to be in the Office Precinct of the Local Plan was open on the evidence.

You might also be interested in...

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.