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(Dorney QC DCJ - 19 November 2014)
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Planning and Environment – submitter appeal – planning authority supporting dismissal – whether conflict – "community expectations" – new plan in force after approval
Facts: This was a submitter appeal against Brisbane City Council's approval of a development application for Material Change of Use – Multi-unit Dwelling – 253 units and Preliminary Approval for Building Work and Operational Work adjoining a heritage place on land located at Kangaroo Point.
By the time of the hearing, the proposed development involved a GFA of 17,408m2 and a maximum height of 83.15m AHD to the top of the lift overrun. The proposal was for a dwelling unit mix of 121 one bedroom apartments, 81 two bedroom apartments, 1 two bedroom town home, 5 three bedroom apartments and 6 three bedroom town homes.
The development site was within the Urban Footprint under the South East Queensland Regional Plan 2009 – 2031 (SEQRP). At the time the development application was made, the Brisbane City Plan 2000 (CP2000) was in force. Under CP2000, the site was designated a Residential neighbourhood within the High Density Residential area and was contained within the Residential Precinct of the Kangaroo Point Peninsula Local Plan.
At the time of the hearing, Brisbane City Plan 2014 (CP2014) had superseded CP2000. Under CP2014, the site was contained within the Suburban Living Area, within the HDR2 – High Density Residential (15 storey) Zone and within the Residential Precinct under the Kangaroo Point Peninsula Neighbourhood Plan.
At the hearing, the Court was required to determine a number of issues of interpretation and make findings about:
- whether the Brisbane City Council's approval conflicted with the Brisbane City Plan 2000; and
- if so, whether there were sufficient grounds to justify the approval despite the conflict.
Consideration of the primary issues incorporated the issue of the weight to be given to CP2014 in regards to any inconsistency with its provisions.
Decision: The Court held, in dismissing the appeal:
- Construction of town planning policy, plans and schemes should not be attended by the precision and certainty required in construction of contracts and statutes. Relevant documents had to be read as a whole, in a practical way, and with an intention to achieve a balance between outcomes. A correct interpretation of the language and a factual conclusion as to absence of conflict was required.
- Section 326 of the Sustainable Planning Act 2009 required a conflict to be "plainly identified" and grounds to be a matter of public interest. The section did not warrant applying different weight to different grounds.
- Under the performance-based scheme, the adoption of the Acceptable Solution or an alternative solution akin to the Acceptable Solution was not mandatory. Acceptance of an alternative solution was another way of achieving compliance with the relevant performance criterion.
- Views were not protected unless by clear statutory intervention. Performance Criteria P3 could not be construed as preserving intact all relevant views which could be enjoyed across or around a building complying with that Acceptable Solution. In the alternative, the limited number of views that would be affected by a building exceeding 10 storeys led to a conclusion that the proper interpretation of protection and maintenance of views did not extend its protection that far.
- Need was a relative concept relating to the general well-being of the community and it yielded to the decisive effect of amenity and other town planning considerations. However, need was not the sole criterion to be considered. Greater or lesser weight would be afforded depending on all of the circumstances the planning authority was to take into account.
- The size and bulk of the development application was consistent with the high density nature of the Kangaroo Point peninsula locality. No different outcome was achieved under the CP2014.
- In relation to scale, the proposed development was appropriate in terms of the high density residential nature of the peninsula.
- Even if the development was generally inappropriate development, any discerned non-compliance did not give rise to conflict because the impact assessable development had to be judged in accordance with the Kangaroo Point Local Plan Code, of which Performance criteria P2 and P3 had been complied with.
- Consideration of issues such as setbacks, overshadowing and privacy required consideration of matters of fact, degree and judgment.
- The requirement for building forms to be in keeping with the existing streetscape was a flexible concept insofar as it concerned the development site. The proposed town homes would enhance and enliven the streetscape, the street frontage reflected a scale consistent with detached dwellings in the locality and the building articulation and design elements addressed the street frontage.
- There was nothing which established that the setbacks for the proposed development did not ameliorate the impacts of the building on adjacent buildings or did not maintain high levels of amenity for the dwelling units.
- CP2014 also supported the greater height, scale and form of the development application because of a community and economic need for the development.
- The proposed development would not give rise to any relevant conflict because there had been overall compliance with CP2000. As to the level of conflict, it would be of a minor nature.
- Even if a conflict was found to exist, there would still be sufficient grounds to justify an approval.
- The appeal should be dismissed.