Court decision

The Planning and Environment Court delivered judgment in the matter of YQ Property Pty Ltd v Brisbane City Council & Ors [2020] QPEC 2 on 24 February 2020. The matter involved an appeal against the Council’s refusal of a development application seeking to establish multi dwellings on land located at 25, 27, 31 and 35 Eric Road, Holland Park. By the time of judgment, the proposed development was for 23 four-bedroom dwellings taking access from Eric Road with an internal road network.  

The reasons for refusal advanced by the Council included that the proposed development would be unacceptable in terms of height, bulk, scale, form, character, intensity and building separation; as well as being inconsistent with community expectations and significantly impacting on the immediate area to an unacceptable degree. The Council also submitted that the proposed development would result in unacceptable ecological impacts warranting refusal. 

The focus of this alert, however, is on two of the Council’s specific reasons for refusal namely:

• whether the proposed development provides adequate car parking spaces having regard to amendments to the planning scheme after the development application was lodged; and
• whether the proposed development should be refused because it does not accord with the major amendment to the planning scheme contained in Major Amendment Package H (Package H) adopted by the Council on 11 February 2020, which removes provisions allowing for multiple dwellings in the low-density residential zone.

In short, on the facts of the particular case, the Court did not give any weight to the amended Transport Access, Parking and Servicing (TAPS) planning scheme policy and found the proposed provision of two car parks per unit to be adequate. The Court also did not find it appropriate to give effect to Package H in the circumstances.

Amendment of the TAPS Planning Scheme Policy 

The Court first addressed the amendment of the TAPS planning scheme policy, which commenced on 29 November 2019 (noting that the subject development application was lodged 8 January 2019).  

His Honour Judge Everson observed that section 45 of the Planning Act requires the Court to assess the development application having regard to the planning scheme “as in effect when the development application was properly made”, but goes on to state that the Court “may give the weight” the Court “considers is appropriate, in the circumstances” to the “amendment or replacement” planning scheme.  The starting point is that an applicant is entitled to the benefit of the assessment benchmarks in place at the time the development application is properly made, unless the Court considers it appropriate in the circumstances to give weight to any amendments or a replacement planning scheme. 

On the facts in this case, the proposed development went from significantly exceeding the required car parking spaces to a shortfall (based on the amended TAPS planning scheme policy) of 12 resident car parking spaces and two visitor spaces. His Honour observed:

"This is an extreme change in terms of policy expectations with alarming consequences, considering that the exceedance in terms of the provision of parking has now become the opposite.”
 

In the exercise of determining what weight, if any, should be given to the TAPS planning scheme policy amendment, His Honour was guided by the traffic engineers who gave evidence in the appeal. Significantly, the Council’s expert ultimately conceded that the provision of two car parks per unit as proposed by the appellant is “certainly a common allocation and it’s broadly accepted as a number which satisfied the demands of most residents.”

In the circumstances, the Court found that the proposed development provided adequate parking and did not propose to give any weight to the amended TAPS planning scheme policy. 

Major Amendment Package H

On 4 September 2018, the Council resolved to make a major amendment to Brisbane City Plan 2014 to remove provisions allowing multi dwellings in the low-density residential zone. Package H proceeded to adoption by Council resolution on 11 February 2020. This step occurred after the scheduled completion of the hearing of the appeal and, although the amendment had not become law (in terms of section 45(8) of the Planning Act), His Honour noted that the last steps for this to occur appeared to be a formality and imminent. 

His Honour explored the well-known Coty principle which concerns the appropriateness of taking into account draft planning controls. His Honour noted that the cases illustrate the importance of draft planning controls being given effect where the intended development would permanently change the desired character and amenity of the area in question. He went on to observe that the facts before him in the subject case were different. His Honour was satisfied, having regard to the evidence, that the area containing the subject site already contained a number of uses including multiple dwellings and that the character would not change if the proposed development was approved. The proposed development would “merely be another multi dwelling development in an area where there are many, including another on similarly zoned land in the same block and another on the opposite side of the street.” The town planning witnesses also observed that despite the mixed character of the area in terms of the uses present, detached dwelling houses predominated and this would continue to be the case even if the proposed development proceeded.

In exercising his discretion as to whether or not to give effect to Package H, His Honour identified that He needed to take into account that:

• the development application was properly made on 8 January 2019, more than four months after the Council resolved to make the major amendment in accordance with package H; and
• upon the amendment becoming law, the appellant would have the right to make a superseded planning scheme request.

That right, nonetheless, occurred in circumstances where the appellant is presumed to have the benefit of the law in place at the time the development application was properly made and where it had incurred the expense of pursuing the development application and subsequent appeal. 

In determining that he did not consider it appropriate to give effect to Package H, His Honour identified that:

• there were already numerous multiple dwellings in the vicinity of the site, the proposed development was well designed and exceeded numerous benchmarks with respect to site cover, density and deep planting;
• the overall impacts of the proposed development would be minimal in terms of amenity of the neighbourhood; 
• there would be an enhancement of ecological values; and
• conversely, the amendments contemplated by Package H have city wide effect – they are not focussed particularly on the area where the site is located.

Accordingly, His Honour was satisfied that the development would not either cut across to a substantial degree the planning strategy evident in the amendment or make it more difficult for the respondent and the Court to give effect to the planning strategy in the future.

The appeal against refusal is to be allowed subject to the imposition of appropriate lawful conditions.