THE APPEAL

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 Plan).

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:

  1. whether the development conflicted the City Plan (being the plan that the Development Application was assessed against); and
  2. 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 or less.

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 met.”

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 Criteria.”

The Court relied on SDW Projects Pty Ltd v Gold Coast City Council [2003] 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 solution”(emphasis added).

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 comply”.

CONCLUSION

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 planning scheme.

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’.