(Jones DCJ - 4 June 2014)
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Application – where applicant sought to raise four preliminary matters prior to the substantive hearing of the appeal – whether matters ought to be heard and determined as preliminary matters or heard at the same time as the substantive hearing of the appeal – whether matters raised so fundamental as to require them to be determined as preliminary matters

Facts:  This proceeding concerned applications brought by the Applicants (Mr Golder and Westrex Services Pty Ltd) (Westrex) to have four matters dealt with by way of a preliminary points hearing prior to the substantive hearing of their respective appeals.

The substantive proceedings were two submitter appeals against Council’s decision to approve a development application lodged by We Kando Pty Ltd (We Kando) for a development permit for a material change of use – high impact industry (waste water storage pond) and a development permit for environmentally relevant activity (ERA) 56 – regulated waste storage.  The development application was impact assessable and was required to be publicly notified.  The Department of Environment and Heritage Protection (DEHP) was a concurrence agency.  DEHP had no requirements for the development application and approved the environmental authority application subject to conditions.

The four preliminary points identified in Westrex’s applications were:

  1. Public notification
    Westrex submitted that We Kando had not complied with its public notification obligations under theSustainable Planning Act 2009 (SPA). 
  2. Finality
    The conditions imposed by Council on its approval of the development application required We Kando to submit an Environmental Management Plan (EMP) to Council to be approved prior to commencement of the use.  The EMP was to be in accordance with Schedule 9 of the Bungal Shire Council Planning Scheme 2006(Scheme).  The Scheme stated that the Council could refuse an application if an EMP had not been completed to Council’s satisfaction. 
  3. Responsibility
    The DEHP prepared a concurrence agency response to the application.  Council then prepared a report in support of the application, stating that “because the environmental management of waste water storage facilities [was] controlled by an environmental authority which [was] approved by the [DEHP], the Council should not refuse a development application on any grounds which [were] within the scope of the environmental authority…” 

    Westrex submitted that Council’s decision to approve the application was defective in that Council failed to carry out an independent assessment of the environmental impacts and management issues associated with the proposed development, instead relying on the conditional approval granted by DEHP.
  4. Characterisation
    Westrex submitted that the ERA component of the development application was not properly characterised.  It was submitted that what would actually occur went beyond the waste water storage contemplated by ERA 56 and would include at least some level of treatment.

Council and We Kando opposed the applications, save for the public notification point which all parties agreed should be dealt with as a preliminary point.

Decision:  The Court held, in allowing the applications in part:

  1. The “finality” point did not involve significant contested factual issues nor was it likely to require further evidence.  It could be dealt with on the material currently filed in the Court.
  2. The “finality” point was a matter about which a judicial final or conclusive decision could be made.
  3. The “responsibility” point was disposed of in the same way as the “finality” point.
  4. Unlike the other matters, it was likely that if the “characterisation” point were to be dealt with in a preliminary manner, some evidence would be required including the potential cross examination of expert witnesses and would be likely to result in the hearing going beyond one day. Further, unlike the other matters, even if Westrex succeeded on the point, it did not go directly to the standing of the Council’s decision to approve the development.  It would not result in the Council’s approval being invalid.  It could readily be dealt with during the conduct of the substantive appeal.
  5. It was appropriate that the “notification”, “finality” and “responsibility” points raised by Westrex be heard and determined as preliminary matters prior to the substantive hearing of the appeals.


(Rackemann DCJ - 6 June 2014)

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Planning and environment – appeal against approval of a development application to facilitate the construction of a high-rise office and retail development – application for minor change – reduction from high-rise to mid-rise development – whether the proposed change resulted in a substantially different development

Facts:  These were minor change applications in the course of two submitter appeals against Council’s decision to approve a development application to facilitate construction of a high-rise office and shop development on land situated at Albert Street, with frontage to the Queen Street Mall, in the Brisbane CBD.  There was an existing low-rise local heritage place on the land.

The original proposal was for a high-rise tower which retained the two level façade of the heritage building and featured:

  1. a lower basement level, predominantly for commercial storage and upper basement, with two retail tenancies;
  2. “street” level and first floor retail tenancies;
  3. 12 levels of office space above the retail levels; and
  4. two plant levels on top of the building.

The high-rise tower was to extend over a laneway and also into space that was occupied by an extension of development at 117 Queen Street (which was to be demolished).

The new proposal was for a mid-rise development, which still retained the two level façade of the heritage building and the street and first floor level retail tenancies, but featured only:

  1. one basement level of retail tenancies;
  2. four levels of office space above the retail levels; and
  3. one level for plant.

The new proposal did not extend into the laneway and did not involve re-development of the existing extension of 117 Queen Street.  By comparison with the approved proposal, the new proposal:

  1. had a greatly reduced gross floor area (around 55%);
  2. was reduced in height, from  61.2m to 27.37m (around 55%);
  3. had reduced office space and one less basement level;
  4. had a different internal configuration of the floor levels, including the size of proposed tenancies, the number and location of lifts and the location of amenities; and
  5. had a different number of plant levels which were presented differently.

The determinative issue for the Court in determining whether the change was “minor” was whether the extensive redesign work in the new proposal resulted in a “substantially different development.”

The Appellants submitted that the new proposal involved a change that was more than minor which required fresh assessment, particularly due to the differences in bulk and scale between the original proposal and the new proposal.

The Co-Respondent conceded that the changes were significant, but submitted that they did not result in a substantially different development.  The two proposals were both multi-storey developments involving the redevelopment of a local heritage place with offices above retail and that the changes reduced impacts and addressed the concern in relation to encroachment on the laneway.  It was contended that the change in height and gross floor area of the subject building was not dramatic in the context of the amount of floor space and the mix of building height in the CBD. 

Decision:  The Court held, in dismissing the applications:

  1. It was appropriate to have regard to the statutory guideline made under s. 759(1)(c) of the Sustainable Planning Act 2009.
  2. The dramatic change in built form in terms of scale, bulk and – largely as a consequence, appearance may support a conclusion that it was more than a minor change but did not necessarily or inevitably do so.
  3. It was relevant to consider the proposed change from a qualitative, as well as quantitative, perspective.  Traditionally changes which had the potential to raise new or additional impacts not dealt with at the application stage were scrutinised more critically.  That approach was consistent with the statutory guideline.
  4. An overly conservative approach to the statutory scope for change would be counter-productive.  Proposed changes were assessed broadly and fairly, rather than pedantically.
  5. The ultimate question was not whether the new proposal was smaller or better per se, but rather whether it represented more than a “minor change” and whether it was a substantially different development.
  6. It was possible for a proposal to be both reduced in height and scale and to be described as substantially different from the original proposal.
  7. The new proposal was dramatically different in its bulk, scale and appearance and represented a different response to the site’s physical and planning context.  It was a substantially different development.


(Searles DCJ - 20 June 2014)

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Appeal against Council refusal of small lot development in Large Lot Residential Zone – significance of existing approval – whether proposal conflicted with the Ipswich Planning Scheme 2006 – sufficient grounds

Facts:  This was an appeal against Council’s decision to refuse a development application over a site at Karalee.

The development application originally sought a preliminary approval overriding the planning scheme to facilitate Residential Low Density development and a development permit for reconfiguration of a lot for Stages 1 – 3 of the development (8 into 101 lots and 2 balance lots).  The ultimate intention was to develop the site for approximately 420 lots in 11 stages over 20 years.

By the time of the hearing, the proposal had been amended to reduce the total number of allotments to 341 lots.

The site was part of a larger area which had the benefit of an existing approval for large lot development.  Operational works permits had been issued for Stages 1 and 2 of that development, which immediately bordered the site.

The site was contained within the Large Lot Residential Zone under Council’s planning scheme.

The issues in dispute related to engineering (geotechnical, hydrology and stormwater management and civil engineering), ecology, character and visual amenity, town planning and need.  At the time of the hearing, engineering issues had essentially been resolved between the parties’ experts.

Decision:  The Court held, in dismissing the appeal:

  1. The Court should have regard to the existing approval, which regard should extend to a consideration of the implications of that approval for the subject site and any future impacts of development under that approval.
  2. The proposed development would have a significant impact on the fauna and flora habitat areas of the site and on the ecological values associated with natural vegetation of the area.  It was also inconsistent with the Vegetation Management Code under the planning scheme.
  3. It was difficult to accept that the proposed development would not erode and alter the existing character and amenity of the area.  The substantial increase in the number of lots and corresponding decrease in their size was at odds with the existing character and amenity of the site.
  4. The proposal conflicted with the scheme.  The conflict was more than minor.
  5. There was no need for the proposed development.
  6. None of the grounds advanced by Karalee, taken individually or collectively, were sufficient to overcome the conflict so as to justify approval of the application.

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(Rackemann DCJ - 27 June 2014)

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Planning and environment – proposal to re-establish the use of an industrial development previously developed within a green space and rural area as exempt development – where exemption had expired – whether undesirable entrenchment – conflict with the planning scheme – sufficiency of grounds – SEQRP regulatory provisions

Facts:  This was an appeal against Council’s decision to refuse a development application to facilitate the recommencement of a concrete batching plant and pre-cast facility use at Bald Hills.  The uses were previously lawfully carried out as exempt development in conjunction with the Airport Link project.

The site was 29.47 hectares with existing disused facilities including a large pre-cast shed with associated mobile cranes, crane tracks and demountable buildings located towards the centre of the site.  The site was adjacent to a waterway that linked wetlands of ecological significance.

The proposal was for a material change of use for a pre-cast facility and concrete batching plant that would supply concrete to the pre-cast facility and the general market and a preliminary approval overriding the City Plan.

The applicable planning scheme was the Brisbane City Plan 2000 (City Plan), under which the site:

  1. was located in a Rural Area;
  2. was part of a Waterway Corridor (subject to the Waterway Code and Biodiversity Code) as defined by the Flood Regulations Lines;
  3. was located on floodable land (subject to the Stormwater Management Code);
  4. contained wetlands (subject to the Biodiversity Code);
  5. was adjacent to Conservation and Parkland Areas; and
  6. was within the Green Space (Rural Component) Area.

The site also fell within the Regional Landscape and Rural Production Area (RLRPA) (outside of the Urban Footprint) under the South East Queensland Regional Plan (SEQRP).

The Council’s grounds for refusing the proposal were spread across the following disciplines: terrestrial ecology; aquatic and wetland ecology; acoustics and air quality; geotechnical engineering; groundwater; hydrology; water quality; acid sulphate soils; traffic; visual amenity; need and town planning. 

Following joint expert meetings in the course of the appeal, a number of the disputed issues were resolved, subject to the imposition of appropriate conditions.  The remaining disputed issues related to conflict with the planning scheme, conflict with the SEQRP and its regulatory provisions, visual amenity, traffic, need and whether there were “sufficient grounds” to overcome conflicts with the City Plan and the SEQRP and its regulatory provisions.

Decision:  The Court held, in allowing the appeal:

  1. That the fact that the use was formerly carried out (as exempt development) was not, in and of itself, justification for approval notwithstanding conflict.
  2. The new City Plan 2014, which had been adopted but was not yet in force, was deserving of weight.
  3. In relation to the visual amenity issues:
    1. The site had only a modest effect on the visual quality and landscape character in that part of Brisbane;
    2. The current state of the developed part of the site did not contribute positively to the green space values of the broader area, but the proposal would bring some overall benefit (and no significant adverse impact) from a visual perspective; and
    3. Refusal of the proposal would not necessarily, or even probably, lead to the developed part of the site being rehabilitated in a way which made a significant positive contribution to Green Space values. 
  4. In relation to traffic, the use of the on-ramp by laden agitator trucks would be, at least, undesirable.  That was a matter of relevance to be weighted in the ultimate decision as to whether external concrete deliveries should be permitted.
  5. In relation to the need issues:
    1. There was a strong public or community need and at least a significant planning need that supported the proposal for recommencing use of the pre-cast concrete facility, together with concrete batching plant, insofar as it supplied the pre-cast facility.
    2. Insofar as external deliveries were concerned, there was not, on a traditional analysis, a strong planning need to provide an approval at the subject site to facilitate the establishment of a concrete batching plant to service the external market.  The balance lay in favour of refusing the external deliveries component, so as to obviate the undesirable traffic consequence.
  6. In relation to the conflict with SEQRP:
    1. The developed part of the subject site did not exhibit the desired values of the RLRPA.  The departure from what was intended on the site (which was proximate to the Urban Footprint) would not do violence to the intentions of the RLRPA in that area more broadly and the subject proposal would, with the landscaping, rehabilitation and other works proposed, increase the values of the land, particularly beyond the developed part.
    2. The question was not whether a facility should be allowed to be located for the first time on a site within the RLRPA but whether a development which already existed in that area should be allowed to be reused in circumstances where to do so would bring benefits and increase the site’s contribution to the values of the RLRPA.
  7. There were sufficient grounds to approve the pre-cast facility and batching plant (for the purposes of supplying the pre-cast facility) notwithstanding conflict with the planning scheme.


(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:

  1. Short Term Accommodation was expressly excluded from A7.3 and the particular use was a significant parking generator for the proposed development;
  2. Milton was an area which already suffered from significant parking constraints; and
  3. 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:

  1. 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.
  2. The same principles which applied to statutory construction applied to the construction of planning documents.
  3. The proposal was for a Hotel and as such it did not come within the definition of Short Term Accommodation.
  4. 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.
  5. A7.3 was the only Acceptable Solution applicable in the circumstances.
  6. 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.
  7. On the evidence, a finding that the accommodation component was the significant parking generator that caused conflict with P7 was not open.
  8. 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. 
  9. 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.
  10. 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. 
  11. 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. 
  12. In relation to the contentions raised by the Submitters:
    1. 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.
    2. 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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