Australia: Court allowed appeal against approval of multi-unit dwellings, finding conflicts with the Brisbane City Plan 2000 and insufficient grounds to justify approval

Last Updated: 5 April 2018
Article by Ian Wright and Georgina Taylor

IN BRIEF

The case of Kissane & Ors v Brisbane City Council [2016] QPEC 57 concerned a submitter appeal in the Planning and Environment Court against the decision of the Brisbane City Council to approve a development in Kuraby involving a development application for a development permit for a material change of use and preliminary approvals for building works for 68 multi-unit dwellings, together with a development permit for reconfiguring a lot to create a new road.

Mary Kissane, Arsil Nayyar Hussain and Shamile Hussain are neighbours of the site who commenced the appeal. The issues in dispute were narrowed during the appeal to the remaining issues of density, amenity and character impacts and bushfire risk.

The Court found that the proposed development was in conflict with the Brisbane City Plan 2000, and that the extent of these conflicts were confirmed by the Brisbane City Plan 2014. In the absence of sufficient grounds to justify approving the proposed development despite the conflicts, the Court allowed the appeal.

COURT FOUND OBVIOUS AND SIGNIFICANT CONFLICT WITH THE BRISBANE CITY PLAN 2000 WITH RESPECT TO THE DENSITY, FORM AND SCALE OF THE PROPOSED DEVELOPMENT

The development application was lodged by Pacific Enterprises Pty Ltd and Noriba Pty Ltd with the Council under the Brisbane City Plan 2000, shortly before the Brisbane City Plan 2014 came into effect. Since the commencement of the appeal, the proposed development had changed and been reduced to 62 multi-unit dwellings of between two and three storeys, to be built over four stages.

Under the Brisbane City Plan 2000, the site was located in the Emerging community area, which was "generally suitable for urban purposes at some future time." Under the Brisbane City Plan 2000, the site was also included within a Potential Development Area in the Kuraby local plan, which relevantly provided that the site was generally intended for low density residential houses with dwelling densities of between 10 and 15 dwellings per hectare. The Kuraby local plan encouraged higher dwelling densities of up to 20 dwellings per hectare between 400 and 800 metres from Kuraby or Fruitgrove railway stations, where dwellings "must be designed to ensure compatibility with the form and scale of detached housing." Within 400 metres of Kuraby or Fruitgrove railway stations, dwelling densities of up to 25 dwellings per hectare were encouraged.

Kuraby railway station was the nearest station to the site, which was approximately one kilometre away. Pacific Enterprises and Noriba submitted that a flexible approach must be taken when considering the wording of the Kuraby local plan and that the strategic intent to provide increased housing densities close to public transport must be taken into account. Despite the site being located greater than 800 metres from Kuraby railway station, the Court accepted that it was within walking distance, albeit not comfortable walking distance.

However, the Court found that the requirement that dwellings greater than 400 metres from Kuraby railway station "must be designed to ensure compatibility with the form and scale of detached housing" was a mandatory requirement under the Kuraby local plan. In considering the evidence from the town planning experts, the Court accepted the evidence of the town planning expert for the submitters that the proposed development was incompatible with detached housing, including the adjoining detached housing, in terms of its height, form and scale. The Court also accepted the submitters' town planning expert's evidence that there was no support for development of the density proposed within the Kuraby local plan area. The Court found that the nature and extent of the conflict with the Brisbane City Plan 2000 was obvious and significant.

COURT GAVE SIGNIFICANT WEIGHT TO THE BRISBANE CITY PLAN 2014 AS IT REPRESENTED A CONTEMPORANEOUS STATEMENT OF PLANNING INTENT FOR THE SITE

Section 495 of the Sustainable Planning Act 2009 relevantly provides that the Court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate. In hearing the appeal, the Court considered the appropriate weight to be given to the Brisbane City Plan 2014.
As the development application was lodged ten days before the Brisbane City Plan 2014 came into effect, the Court was of the view that the Brisbane City Plan 2014 represented a contemporaneous statement of planning intent for the site, and so should be accorded significant weight.

Under the Brisbane City Plan 2014, the site is located in the Emerging community zone and the purpose of the code for this zone is to "identify land that is suitable for urban purposes and conserve land that may be suitable for urban development in the future." The site is also subject to the Kuraby neighbourhood plan code, which the Court found was generally in accordance with the provisions in the Kuraby local plan, but relevantly provided the restrictions on dwelling densities within 800 metres of Kuraby railway station in more mandatory terms. With respect to the issues of density, form and scale, the Court was of the view "that the relevant provisions of City Plan 2014 confirm the extent of the conflict of the proposed development with the planning intent for the area."

COURT GAVE SIGNIFICANT WEIGHT TO THE BRISBANE CITY PLAN 2014 BUSHFIRE OVERLAY CODE AS IT REPRESENTED A COMPREHENSIVE RESPONSE TO A CONTEMPORARY RISK

The Brisbane City Plan 2000 did not include provisions to manage bushfire risk. At the time the development application was made, State Planning Policy 2013 applied and dealt with the issue of bushfire risk. Under the Brisbane City Plan 2014, the site is identified on the Bushfire overlay code map as being surrounded by predominantly medium hazard areas and some high hazard areas. The Bushfire code provides for a minimum building protection zone of 20 metres of reduced fuel and includes an inner 10 metre zone of very low fuel.

The parties' three bushfire experts all undertook an assessment of the proposed development against the Bushfire overlay code. They all agreed that the Bushfire overlay code was part of "the most up-to-date instrument available." The Court took this evidence into account in determining that significant weight should be given to the Bushfire overlay code as "it represents a comprehensive response to a contemporary risk in circumstances where City Plan 2000 did not address the issue."

COURT FOUND PART OF THE PROPOSED DEVELOPMENT SUBJECT TO UNACCEPTABLE BUSHFIRE RISK

The bushfire expert for Pacific Enterprises and Noriba downgraded the hazard level of the site from medium-high to low-medium based on his detailed site-specific analysis, including taking into account the low combustibility of Black Sheoak, which was found to be present in significant numbers adjoining the site to the south. Accordingly, the developers' bushfire expert was of the opinion that the use of fire retardant fencing and appropriate building design would provide "appropriate levels of safety for people and property" in those parts of the proposed development most at risk from bushfire threats.

The submitters asserted that the site was not suitable for the proposed development because it was subject to unacceptable bushfire risks. Their and the Council's bushfire experts maintained the position that "access and a total separation of at least 20 metres from the hazard to the nearest building are essential to provide a minimum acceptable risk position." The Court preferred this evidence to that of the bushfire expert of the developers and found that the Bushfire hazard overlay in the Brisbane City Plan 2014 was accurate.

In applying this position, the Court found that some of the buildings in stage one and all of the buildings in stages three and four of the proposed development failed to comply with the minimum 20 metre separation from the bushfire hazard. The Court found that this risk could not be addressed through conditions and that only those parts of the proposed development not subject to unacceptable bushfire risks should be considered appropriate for approval.

In considering whether there were sufficient grounds to justify approval of the proposed development, the Court found that there was need for the proposed development. However, in light of the significant conflicts with the Brisbane City Plan 2000, the Court found insufficient grounds to justify approving the proposed development despite the conflict.

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.

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

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

Authors
Ian Wright
 
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”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions