Court decision

‘Non-compliance’ with assessment benchmarks in the absence of adverse planning consequences

By James Ireland and Tom Buckley / 15 October 2021
5 min.
read
Worthwhile read for: Town Planners, Local Governments, Property Developers, Environmental Consultants

A core consideration in development assessment is the level of compliance with the assessment benchmarks in a local government planning scheme.  However, in the face of a ‘non-compliance’ with an assessment benchmark (such as a building height limit), or multiple ‘non-compliances’ (such as a building height limit, a minimum boundary setback and a deep landscaping requirement), the absence of any adverse planning consequences occasioned by the non-compliance is a relevant matter to be considered in the exercise of the planning discretion to approve or refuse the development proposal.1

This principle has been brought into sharp focus by a decision of the Planning and Environment Court that considered a proposal to develop 42 multiple dwellings on low-density zoned land at Sunnybank.  In Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13, the Council contended that the proposed multiple dwellings ought to be refused because they were too intense to be low-density development and represented an overdevelopment of the land.

There were only a few provisions from the Low density residential zone code and Multiple dwelling code that were relied upon to justify refusal. This included provisions that anticipate multiple dwellings that are of a scale, intensity and form that is low density and that reinforces a distinctive subtropical character of low-rise, low-density buildings set in green landscaped areas.  The Court accepted that the proposal was discordant with the planning goals articulated in these provisions, with the effect being that the multiple dwellings were of a greater density than that which is encouraged in the Low density residential zone.

However, it was contended (and accepted by the Court) that the non-compliance would result in no adverse planning consequences, particularly no adverse visual amenity and traffic impacts. The absence of adverse consequences was a feature of two things. 

The first was the unique attributes of the land – it was large (8,910m²), it had extensive frontage to a rail corridor, it had a minimal external road frontage, and it had a small number of adjoining neighbours. 

The second was, the ‘atypical design’ of the carpark. The design was atypical because it was a basement carpark, as opposed to an at-grade carpark. Basement carparks are not characteristic of multiple dwelling developments in the Low density residential zone, they are more commonly found in higher density zones. As the Court noted, the use of a basement carpark resulted in a unique situation where the development was able to comply with many of the metrics in the acceptable outcomes for multiple dwellings in the Low density residential zone, yet not produce a low density outcome.2

This left the Court in a position where there was clear non-compliance with the Council’s planning scheme, but that non-compliance did not result in adverse impacts. In reconciling this position, the Court recognised the importance of a decision to allocate land to the Low density residential zone. Yet such a decision is not always appropriately respected by insisting on rigid adherence to the assessment benchmarks in the planning scheme without reference to their underlying planning purpose. As the Court noted, the residential density provisions in the planning scheme reflect an intention to encourage an identified urban form for the purpose of protecting and enhancing planned character and amenity.  However, the allocation of land to the residential zone can also be informed by factors that affect the real capacity of the area, such as the level of available transport, infrastructure for essential services, and the ease of access to employment, goods and services.

Here, it was accepted that the design attributes of the development and the unique features of the land did not create any adverse amenity or character consequences, nor any internal amenity issues or traffic consequences. Further, it was considered that the land was well-located to provide easy access to high frequency transport, schools, essential services, employment, and goods and services.

In those circumstances, the Court concluded that although the development was of a density higher than that planned under the planning scheme, it did not offend the broader planning goals that underpin the allocation of land to the Low density residential zone. The Court considered that the lack of offence with the planning goals that inform the density provisions, together with other relevant matters supportive of approval, justified approval of the multiple dwellings.

The decision is a reminder of the greater flexibility provided to assessment managers in deciding impact assessable development applications. The absence of any adverse planning consequences occasioned by a non-compliance with a planning scheme is a relevant matter to be considered in the exercise of the planning discretion to approve or refuse the development proposal.


1 Recently confirmed by the Court of Appeal in Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 at [61].

2 Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 at [61].

Authors
James Ireland
Partner
James is Partner in our Planning and Environment practices with a reputation for exceptional advice across the areas of planning and development approvals, planning litigation and dispute resolution, infrastructure, land valuation and the compulsory...
Tom Buckley
Special Counsel
Tom is a Special Counsel in our Planning and Environment practice.

What’s new

Subscribe
Receive email updates of our new publications.