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Cheung v Brisbane City Council

Cheung v Brisbane City Council

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Case Copied 13 August 2021 72 min read

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PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cheung & Ors v Brisbane City Council & Ors [2021] QPEC 39

PARTIES:

PEARL CHEUNG & Ors

(Appellants)

v

BRISBANE CITY COUNCIL

(First Respondent)

AND

DAVID AND DIANE TAYLOR
(Co-Respondent)

AND

JASON POWELL

(First Co-Respondent by Election)

FILE NOs:

4695 of 2019, 103 of 2020, 148 of 2020

DIVISION:

Planning & Environment Court

PROCEEDING:

Consolidated Appeals

ORIGINATING COURT:

Planning & Environment Court of Queensland at Brisbane

DELIVERED ON:

13 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 April, 13 April, 14 April and 16 April 2021

JUDGE:

Muir DCJ

ORDERS:

1.   Appeals numbered 4695 of 2019, 103 of 2020 and 148 of 2020 are dismissed.

2.   The Council’s decision to approve the proposed development is confirmed.

3.   The parties will be heard as to the need for any consequential orders, including with respect to conditions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONSOLIDATED APPEALS – where the appellants appeal a decision by the Brisbane City Council to approve a development application to build a 28 dwelling unit complex on 5,335m²of land at Ascot – whether the development is of such a bulk, form, intensity and height and scale that it complies with the assessment benchmarks of the Brisbane City Plan – whether the impacts of the development on local amenity comply with the assessment benchmarks of the Brisbane City Plan – whether the development is to be considered an ‘overdevelopment’ under the Brisbane City Plan – whether there are other relevant matters in favour of approval

LEGISLATION:

Planning Act 2016 (Qld) ss 43, 59

Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46(2), 47

Planning Regulation 2017 (Qld) s 31(1), Schedule 24

CASES:

Abacus Funds Management v Sunshine Coast Regional Council [2012] QPEC 46

Abeleda &Anor v Brisbane City Council & Anor [2020] QCA 257

Ashan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; QPELR 793, 803-813

Ashvan Investments unit Trust v Brisbane City Council & Ors [2019] QPELR

Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18

Bell v Brisbane City Council (2018) 230 LGERA 374

Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 023

Body Corporate for Mayfair Residences v Brisbane City Council (2017) 22 LGERA 136

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 at pages 319, 320

Calvisi v Brisbane City Council (2009) 164 LGERA 119

Cromar Pty Ltd & Cronin v Brisbane City Council &Anor [1996] QPELR 84

des Forges v Brisbane City Council [2001] QPEC 061

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

Eschenko v Cummins & Ors [2000] QPEC 37

Herbert & Ors v Brisbane City Council & Anor [2004] QPEC 017

Herbert v Brisbane City Council [2004] QPEC 017

Hunter v Canary Wharf Ltd [1997] AC 655

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QPEC 39
Decision Date: 13 August 2021

CaseChat Overview and Summary

The case of Cheung v Brisbane City Council involved appeals against the Brisbane City Council's decision to approve a development application for a 28-unit dwelling complex on a 5,335m² parcel of land at Ascot. The appellants contested the approval on various grounds, primarily arguing that the development did not comply with the assessment benchmarks of the Brisbane City Plan in terms of bulk, form, intensity, height, and scale. They also argued that the development would negatively impact local amenity and that it should be considered an 'overdevelopment' under the Plan. The appellants sought to have the Council's decision quashed and to be granted an order compelling the Council to refuse the development application.

The primary legal issue before the court was whether the proposed development complied with the assessment benchmarks set out in the Brisbane City Plan. Specifically, the court had to determine whether the development's bulk, form, intensity, height, and scale were in line with the Plan's requirements and whether the development's impact on local amenity met the Plan's benchmarks. Additionally, the court needed to consider whether the development should be classified as an 'overdevelopment' under the Plan and if there were any other relevant matters in favour of approving the development.

The court examined the evidence and submissions from both parties and concluded that the proposed development complied with the assessment benchmarks of the Brisbane City Plan. The court found that the minor exceedances in building length were not significant enough to render the development incompatible with the surrounding area, especially given the proposed landscaping and articulation. The court also noted that the development's bulk was consistent with the character and form of the local area and that there was no evidence to suggest that residents would not have adequate amenity in terms of natural light and ventilation. Furthermore, the court considered the purpose behind the MD Code provisions, which aimed to create space around buildings and ensure compatibility between units and single houses. The court determined that the Council's decision to approve the development was reasonable and in line with the Plan's assessment benchmarks.

In conclusion, the court dismissed the appeals and confirmed the Council's decision to approve the proposed development. The court ordered that the parties be heard regarding any consequential orders, including conditions that may be imposed on the development. The court found that the development complied with the Brisbane City Plan's assessment benchmarks and that there were no grounds to quash the Council's decision or compel it to refuse the development application.

Orders

Orders of the court

1. Appeals numbered 4695 of 2019, 103 of 2020 and 148 of 2020 are dismissed.

2. The Council’s decision to approve the proposed development is confirmed.

3. The parties will be heard as to the need for any consequential orders, including with respect to conditions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is uncontroversial that two of the proposed buildings[90] exceed the nominated 30 metre length by about 2 metres and, while separated by 5 metres, do not achieve substantial articulation every 15 metres. But I find these exceedances are minor and will not result in the proposed buildings appearing incompatible in the context of larger buildings to the west and south-east, particularly given the proposed landscaping will assist to break up visible built form and, the buildings will incorporate substantial articulation.[91] In any event, I am satisfied that the proposed development complies with PO15 of the MD code because:(a)the bulk of the proposed development is not materially different from other buildings in the area (i.e. ‘The Clayfield’ has a width of approximately 70m and the multiple dwellings at 34 Highlands Street and 55 Lapraik have a length of approximately 25-27m);[92](b)the bulk of the proposed development is in keeping with the form and character intent of the local area; and (c)there is no evidence to suggest that residents within the proposed development will not be provided with adequate amenity in terms of natural light and ventilation; and (d)the proposed development has dual aspects.[90]Buildings two and three.[91]Ex. 4.01 at p. 22 para. 40(m); Transcript 2-18: line 22 to 2-19: line3; Transcript 2-22: line 43 to 2-23: line 8.[92]Ex. 4.01 at p. 18 para. 30(d) and p. 22 para. 40(m).Conclusion The assessment of whether the ultimate outcome is acceptable in responding to the relevant performance and overall outcomes in this case requires an evaluative judgment.[93] Such a judgment is one on which reasonable minds might differ.[94] As indeed they do in this case. [93]See paragraph 9 of these Reasons. [94]Body Corporate for Mayfair Residences v Brisbane City Council (2017) 22 LGERA 136 at [68] per Kefford DCJ. In Mr Buckley’s opinion, a case may be made for “relaxation” in respect of individual requirements for compliance with some acceptable outcomes (such as height,[95] rear setback,[96] building separation[97] and building lengths[98]) but the cumulative impacts of the requirements in this case “tip the balance of an assessment towards a refusal.”[99] [95]AO5 and AO6.1 of the MD Code.[96]AO5 and AO10 of the MD Code.[97]AO8.1 of the MD Code.[98]AO15.1 of the MD Code.[99]Ex. 3.05 at para 6.59, 6.60 per Buckley. This conclusion is underpinned by the following three propositions:[100](a)First: The purpose behind the MD Code provision is to create space about and around buildings and to ensure where units and single houses co-exist, they do so in a “compatible and respectful manner”;(b)Secondly: Consolidating built form in one sector of the site is undesirable and leads to compromised spatial relationships; and distances between building boundaries and “the ability to see through a site” have a practical purpose and ought not be oppressed by bulk and scale. (c)Thirdly: the proposed development results in a “tightness” of living on the already heavily constrained Land and has the “disbenefit” of there being no useable communal open space adequate for the intensity proposed.[100]Ibid at 6.61 to 6.63.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cheung & Ors v Brisbane City Council & Ors [2021] QPEC 39
PARTIES:	PEARL CHEUNG & Ors (Appellants) v BRISBANE CITY COUNCIL (First Respondent) AND DAVID AND DIANE TAYLOR (Co-Respondent) AND JASON POWELL (First Co-Respondent by Election)
FILE NOs:	4695 of 2019, 103 of 2020, 148 of 2020
DIVISION:	Planning & Environment Court
PROCEEDING:	Consolidated Appeals
ORIGINATING COURT:	Planning & Environment Court of Queensland at Brisbane
DELIVERED ON:	13 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	12 April, 13 April, 14 April and 16 April 2021
JUDGE:	Muir DCJ
ORDERS:	1. Appeals numbered 4695 of 2019, 103 of 2020 and 148 of 2020 are dismissed. 2. The Council’s decision to approve the proposed development is confirmed. 3. The parties will be heard as to the need for any consequential orders, including with respect to conditions.
CATCHWORDS:	PLANNING AND ENVIRONMENT – CONSOLIDATED APPEALS – where the appellants appeal a decision by the Brisbane City Council to approve a development application to build a 28 dwelling unit complex on 5,335m²of land at Ascot – whether the development is of such a bulk, form, intensity and height and scale that it complies with the assessment benchmarks of the Brisbane City Plan – whether the impacts of the development on local amenity comply with the assessment benchmarks of the Brisbane City Plan – whether the development is to be considered an ‘overdevelopment’ under the Brisbane City Plan – whether there are other relevant matters in favour of approval
LEGISLATION:	Planning Act 2016 (Qld) ss 43, 59 Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46(2), 47 Planning Regulation 2017 (Qld) s 31(1), Schedule 24
CASES:	Abacus Funds Management v Sunshine Coast Regional Council [2012] QPEC 46 Abeleda &Anor v Brisbane City Council & Anor [2020] QCA 257 Ashan Investments Unit Trust v Brisbane City Council [2019] QPEC 16; QPELR 793, 803-813 Ashvan Investments unit Trust v Brisbane City Council & Ors [2019] QPELR Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 Bell v Brisbane City Council (2018) 230 LGERA 374 Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 023 Body Corporate for Mayfair Residences v Brisbane City Council (2017) 22 LGERA 136 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 at pages 319, 320 Calvisi v Brisbane City Council (2009) 164 LGERA 119 Cromar Pty Ltd & Cronin v Brisbane City Council &Anor [1996] QPELR 84 des Forges v Brisbane City Council [2001] QPEC 061 Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 Eschenko v Cummins & Ors [2000] QPEC 37 Herbert & Ors v Brisbane City Council & Anor [2004] QPEC 017 Herbert v Brisbane City Council [2004] QPEC 017 Hunter v Canary Wharf Ltd [1997] AC 655 Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21