The Kangaroo Point Residents Association appealed
against the Brisbane City Council's approval of a large
residential building in Kangaroo Point, where the proposed
development exceeded the height and plot ratio provided for in the
acceptable solutions of the Brisbane City Plan 2000 (City
There was a pre-existing approval for a (different) Multi-Unit
Dwelling. That development also exceeded the height and plot ratio
acceptable solution provisions of the City Plan.
KEY ISSUE IN DISPUTE
The primary issues in this case were:
whether the development conflicted the City Plan (being the
plan that the Development Application was assessed against);
if so, whether there were sufficient grounds to justify the
approval, despite the conflict?
The appellant raised issues in relation to height, bulk and
scale, streetscape, character, views, setbacks, other amenity
impacts, and the reasonable expectations of the community.
Underlying a number of these concerns was an assumption that the
building exceeded the height and plot ratio set out in the
acceptable solutions in the City Plan. Accordingly, a significant
focus of the appellant's case was the acceptable solution that
provided that building height was acceptable if it was 10 storeys
ACCEPTABLE SOLUTIONS – NOT LIMITS
The Court held that, for performance criteria, if a proposal
does not comply with an acceptable solution, the proponent
"must provide sufficient information to demonstrate how
the corresponding Performance Criterion has been
Importantly, the Court noted the statement in Chapter 5 of the
City Plan that an acceptable solution "represents the
preferred way of complying with the Performance
The Court relied on SDW Projects Pty Ltd v Gold Coast City
Council  2 Qd R 441,1 in which Rackemann DCJ
held that while acceptable solutions indicate a
"desirable" way to "ensure" compliance, they
are not the "only" solutions and that this is to be
contrasted with performance criteria which are generally outcome
focussed and, generally, ought not to be interpreted as requiring
an alternative solution to adoption of the acceptable solution
"or even as requiring an alternative solution
to be akin to the acceptable
The Court also held that it was not legitimate to regard
departure from the acceptable solution as necessarily indicating
non-compliance with the code, noting that, under the performance
based approach, the acceptance of an alternative solution did not
represent a "relaxation" or a "dispensation"
but rather was another way of achieving compliance with the
relevant performance criterion.
In relation to height, the Court held that there was not
necessarily a conflict with the Council's planning if a
proposal was greater than 10 storeys, stating "while
Acceptable Solution A3.2 in the KPLPC refers to not
exceeding 10 storeys, its corresponding Performance
Criterion P3, given the cases extensively surveyed earlier, can
contemplate buildings which exceed such limits but otherwise
The Court concluded that the development, despite not achieving
the acceptable solutions, did not give rise to any relevant
conflict of the City Plan. This was consistent with the KD
Page decision, and emphasized that an acceptable solution was
simply that, and was not the only way to achieve compliance with a
It is also noteworthy that the Court emphasised that the
reasonable expectations of the community must be reasonable in
light of all of the planning provisions applying to the land in
question. This meant that a reasonable expectation of the community
should be influenced by the performance criteria in a planning
scheme, and not be an expectation that development that did not
achieve an acceptable solution will or should be refused.
This decision clarifies that a height in an acceptable solution
is not a height 'limit'.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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