(McMurdo P, Morrison JA and Douglas J - 20 June 2014)
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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:
- Short Term Accommodation was expressly excluded from A7.3 and the particular use was a significant parking generator for the proposed development;
- Milton was an area which already suffered from significant parking constraints; and
- 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:
- 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.
- The same principles which applied to statutory construction applied to the construction of planning documents.
- The proposal was for a Hotel and as such it did not come within the definition of Short Term Accommodation.
- 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.
- A7.3 was the only Acceptable Solution applicable in the circumstances.
- 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.
- On the evidence, a finding that the accommodation component was the significant parking generator that caused conflict with P7 was not open.
- 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.
- 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.
- 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.
- 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.
- In relation to the contentions raised by the Submitters:
- 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.
- 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.
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