Jezreel Pty Ltd v Brisbane City Council - [2023] QPEC 7

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Jezreel Pty Ltd & Anor v Brisbane City Council & Anor [2023] QPEC 7

PARTIES:

JEZREEL PTY LTD (ACN 010 455 973)
(First Appellant)

and

MATTHEW SORBELLO
(Second Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

and

GRIFFITH CAPITAL PTY LTD (ACN 637 242 392) AND SUPADEED PTY LTD (ACN 608 395 320)
(Co-respondents)

FILE NO/S:

2067 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

27 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 to 29 June and 1 July 2022, and 13 and 16 March 2023 and further submissions received on 17 and 20 March 2023

JUDGE:

Kefford DCJ

ORDER:

THE APPEAL IS ADJOURNED FOR FURTHER REVIEW ON 12 APRIL 2023.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where the Co-Respondents made a development application seeking a development permit for a material change of use – where the development application is for redevelopment of subject land at the intersection of Merthyr Road and Brunswick Street – where the proposed development is for centre activities comprising a childcare centre, food and drink outlet, office and shops – whether the height, bulk, scale and form of the proposed development is appropriate – whether the proposed development appropriately transitions to land in a lower density zone – whether there is an acceptable interface – whether the proposed development reflects New Farm’s character and style – whether the proposed landscaping outcome is appropriate for a childcare centre – whether the proposed development will result in adverse carparking impacts – whether there is a need for childcare facilities – whether the proposed re-use of the subject land for uses that accord with the planning intentions support approval – whether the subject land is well-suited for the proposed development

LEGISLATION:

Planning Act 2016 (Qld), ss 45, 59, 60

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

Planning Regulation 2017 (Qld) s 31, sch 24

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 325, approved

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited

K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, approved

Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Northern Properties Pty Ltd v Brisbane City Council & Anor [2019] QPEC 66; [2020] QPELR 877, approved

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited

Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, approved

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39, approved

Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, cited

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

COUNSEL:

K Wylie for the First and Second Appellant
K Buckley for the Respondent
M Batty and R Yuen for the Co-Respondents

SOLICITORS:

Bennett & Philp Lawyers for the First and Second Appellant
City Legal for the Respondent
Connor O’Meara for the Co-Respondents

TABLE OF CONTENTS

Introduction

What is the applicable framework for the decision?

What are the real issues that require determination?

Is the height, bulk, scale, and form of the proposed development appropriate?

What do the relevant assessment benchmarks require?

What are the features of the subject land?

What are the features of the locality and its character?

What is the design and appearance of the proposed development?

Does the height of the proposed development, when considered with its setback, sensitively transition to the adjoining lower density zone?

Does the height of the proposed development complement, and provide a height similar to, the surrounding residential area?

Is the height of the proposed development consistent with the amenity and character and community expectations intended for the Mixed use centre precinct and the subject land?

Is the proposed development of a human scale?

Does the proposed development reflect the pedestrian nature and scale of the locality?

Will the height, scale and built form create a consistent and cohesive streetscape and built form character?

Will the proposed development respect, contribute to, and reflect the existing heritage, character, grain, style, and sense of place of New Farm?

Will the proposed development retain an appropriate visual relationship with the adjoining residential precincts?

Is the size and bulk of the proposed development consistent with the existing small-scale development and does it reflect the scale of the locality?

Is the proposed development sited to enable existing and future buildings to be well separated from each other?

Will the proposed development avoid adverse amenity impact to adjoining development and improve the amenity of the New Farm and Teneriffe Hill neighbourhood plan area?

Is the proposed development, and its uses, small-scale?

Conclusion about whether the proposed development has an appropriate height, bulk, scale, and form

Is the proposed landscaping outcome appropriate for a childcare centre?

Will the proposed development result in adverse carparking impacts?

Does the proposed development meet the design peak parking demand?

Is there an unacceptable impact occasioned by a failure to meet the design peak parking demand on the subject land?

Conclusion about the car parking impact of the proposed development

Are the additional matters on which the parties rely “relevant matters” under s 45(5)(b) of the Planning Act 2016?

Are the proposed uses appropriate?

Will the proposed development provide for the redevelopment of an underutilised site on a prominent corner in New Farm?

Is the proposed development well-located?

Does the historical use of the subject land lend support to approval?

Is there a need for the proposed development?

Is there a need for the proposed childcare centre?

Is there a need for the proposed development in its entirety?

What is the significance of the need to the exercise of the discretion?

Should the development application be approved in the exercise of the planning discretion?

Conclusion

Introduction

At New Farm, there is a mixed-use centre focussed on the intersection of Merthyr Road and Brunswick Street. Within it, at 84 Merthyr Road (“the subject land”), lies a disused single-level building. Although the building has lain dormant for a considerable period, it previously housed four retail and commercial tenants.
The Co-respondents, Griffith Capital Pty Ltd and Supadeed Pty Ltd, want to develop the subject land for centre activities comprising a childcare centre, food and drink outlet, office, and shop uses. The uses are proposed to be conducted from a new four-storey building on the subject land. The food and drink outlet, office, and shop are proposed to occupy the ground floor. A childcare centre with 121 places is proposed for the second, third and fourth floors. Two basement levels are to provide 37 car parking spaces.
The Co-respondents made a development application seeking a development permit for a material change of use to facilitate the redevelopment of the subject land. On 12 July 2021, Brisbane City Council (“the Council”) approved the development application.
The Appellants, Jezreel Pty Ltd and Matthew Sorbello, have appealed against the Council’s decision. They say that the proposed building is too tall and too bulky; there is not an appropriate relationship between the proposed building and nearby buildings; the proposed commercial and retail ground floor tenancies are too large; and the proposed development would result in adverse carparking impacts. The Co-respondents and the Council dispute those contentions.
The ultimate issue for determination is whether, in the exercise of the planning discretion, the development application for the proposed development should be approved.
What is the applicable framework for the decision?
The appeal generally[1] proceeds as a hearing anew.[2] The Co-respondents bear the onus of establishing that the appeal should be dismissed.[3]
[1]Subject to ss 45(2) to (5) of the Planning and Environment Court Act 2016 (Qld).
[2]Planning and Environment Court Act 2016 s 43.
[3]Planning and Environment Court Act 2016 s 45.
The Court has a broad discretion in determining the appeal. It has power to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the entity that made the decision with directions the Court considers appropriate.[4]
[4]Planning and Environment Court Act 2016 s 47. The type of decision that may be made is also governed by s 60 of the Planning Act 2016 (Qld).
The Court’s broad discretion should be exercised judicially, and subject to the limitations in the relevant statutes.[5] The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provides relevant guidance in that respect.
[5]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.
As the development application required impact assessment, the exercise of the discretion must be based on an assessment that:[6]
(a)must be carried out:
(i) against the assessment benchmarks in Brisbane City Plan 2014 (“City Plan”)[7] to the extent that they are relevant;
(ii)     having regard to, relevantly:
(A)     any development approval for, and any lawful use of, the premises and adjacent premises; and
(B)     the common material, including properly made submissions about the development application;[8] and
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
[6]Planning Act 2016 ss 45(5) and 59.
[7]City Plan version 19 was in effect at the time the development application was properly made on 15 October 2020: see Exhibit 2.01. It is a categorising instrument containing assessment benchmarks relevant to the assessment called for under s 45 of the Planning Act 2016. The parties did not put any other categorising instrument in issue, nor did they put in issue any amendment to City Plan or any new statutory instrument for the purpose of s 45(8) of the Planning Act 2016.
[8]Planning Regulation 2017 (Qld) s 31 and sch 24. The regulations prescribe additional matters, but they have not been put in issue in this appeal.
The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[9] Abeleda & Anor v Brisbane City Council & Anor,[10] Wilhelm v Logan City Council & Ors[11] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[12] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[13] That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[14]
[9][2020] QCA 253; [2021] QPELR 987.
[10][2020] QCA 257; [2021] QPELR 1003.
[11][2020] QCA 273; [2021] QPELR 1321.
[12][2021] QCA 95; [2022] QPELR 309.
[13][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[14][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].
What are the real issues that require determination?
As the development application was impact assessable, s 5.3.3 of City Plan requires the development application to be assessed against the whole planning scheme, to the extent relevant. Under City Plan, the relevance of many of the assessment benchmarks is informed by the zone and the neighbourhood plan area in which the subject land is located, as well as the nature of the proposed development.
Although there are a multitude of assessment benchmarks that are relevant to the proposed development, the determination of the ultimate issue in this case only calls for consideration of those assessment benchmarks that are put in issue by the parties. In accordance with the usual practice of the Court,[15] an agreed list of issues was tendered by the parties identifying the focus of their dispute.[16] As is apparent from that document, only a select number of the assessment benchmarks have been put in issue.
[15]Practice direction 2 of 2020 [25].
[16]Exhibit 6.05. See also Exhibit 6.06.
Having regard to those aspects of the relevant assessment benchmarks placed in issue, and the Further Amended Agreed List of Issues, it is evident that the real issues that require determination can be summarised as follows:
Is the height, bulk, scale, and form of the proposed development appropriate?
Is the proposed landscaping outcome appropriate for a childcare centre?
Will the proposed development result in adverse carparking impacts?
Are the additional matters on which the parties rely “relevant matters” under s 45(5)(b) of the Planning Act 2016?
Are the proposed uses appropriate?
Will the proposed development provide for the redevelopment of an underutilised site on a prominent corner in New Farm?
Is the proposed development well-located?
Does the historical use of the subject land lend support to approval?
Is there a need for the proposed development?
Should the development application be approved in the exercise of the planning discretion?

Is the height, bulk, scale, and form of the proposed development appropriate?

The Appellants contend that the proposed development has excessive height, bulk and scale when considered in the context of the lower-intensity commercial development in the Mixed use centre precinct that adjoins the intersection of Brunswick Road and Merthyr Road and the lower-intensity residential development in the Low-medium density living precinct on Merthyr Road. They also contend that the proposed development exhibits an inappropriate relationship to the existing built form in the locality.
The Appellants allege that the inappropriate height, bulk, scale, and form of the proposed development is non-compliant with:
(a)the overall outcomes in ss 6.2.2.3 5.b. and c. and 6.a. and c. of the District centre zone code; and
(b)the overall outcomes in ss 7.2.14.1.2 3.b., f., m. and 7.b. and performance outcomes PO1, PO12, PO13 and PO18 of the New Farm and Teneriffe Hill neighbourhood plan code.
It is uncontentious that each of the provisions to which the Appellants refer is a relevant assessment benchmark. This is unsurprising given:
(a)the subject land is in the District zone precinct of the District centre zone[17] and the assessment benchmarks in the District centre zone code apply to all development in that zone;[18] and
(b)the subject land is in the Brunswick Street and Merthyr Road sub-precinct (NPP-004b) of the Mixed use centre precinct (NPP-004) of the New Farm and Teneriffe Hill neighbourhood plan area[19] and the New Farm and Teneriffe Hill neighbourhood plan applies to the New Farm and Teneriffe Hill neighbourhood plan area.[20]
[17]Exhibit 2.03.
[18]City Plan s 6.1 4: Exhibit 2.01 p 79.
[19]Exhibit 2.03.
[20]City Plan s 7.2.1.1.1 1: Exhibit 2.01 p 93.
What do the relevant assessment benchmarks require?
As I have mentioned above, the relevant assessment benchmarks about building design to be considered in this appeal are limited to those that the Appellants continue to put in issue,[21] namely:
(a)the overall outcomes in ss 6.2.2.3 5.b. and c. and 6.a. and c. of the District centre zone code; and
(b)the overall outcomes in ss 7.2.14.1.2 3.b., f., m. and 7.b. and performance outcomes PO1, PO12, PO13 and PO18 of the New Farm and Teneriffe Hill neighbourhood plan code.
[21]The Appellants abandoned several their allegations during the hearing. They also abandoned some of the submissions originally made in writing.

The purpose of the District centre zone is to provide for a large variety of uses and activities to service a district of the local government area, including, for example, administrative, business, community, cultural, entertainment, professional, residential or retail uses or activities.[22] That purpose is to be achieved through the overall outcomes in the District centre zone code, which include overall outcomes about development form and overall outcomes for the District zone precinct. The overall outcomes that are in issue state:
[22]City Plan s 6.2.2.3 1: Exhibit 2.01 p 86.
“5.Development form overall outcomes are:
b.Development incorporates a height and setback that sensitively transitions to adjoining lower density zones or zone precincts.
c.Development provides a built form that creates a consistent and cohesive streetscape and continuous pedestrian connections and shelter.
6.District zone precinct overall outcomes are:
a.Development ensures an intensity and form that maintains a human scale, respects existing heritage, character and grain and is of a height that complements surrounding residential areas.
c.Development provides for a medium rise built form of a height similar to surrounding residential areas.”
(emphasis reflects the Appellants’ allegations)[23]
[23]Exhibit 6.06.
The purpose of the New Farm and Teneriffe Hill neighbourhood plan code is to provide finer grained planning at a local level for the New Farm and Teneriffe Hill neighbourhood plan area. The purpose is to be achieved through the overall outcomes.[24] They include overall outcomes that apply generally to the neighbourhood plan area, as well as others that relate to the Mixed use centre precinct. Those in issue relevantly state:
[24]City Plan s 7.2.14.1.2 1. and 2: Exhibit 2.01 p 93.
“3.The overall outcomes for the neighbourhood plan area are:
b.Infill development and redevelopment reflect New Farm’s established character and style.
f.Development complements existing urban and landscape characteristics and cultural associations and contributes to the distinctive and identifiable character and sense of place of New Farm as a whole and of its distinctive neighbourhoods.
m.Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.
7.Mixed use centre precinct (New Farm and Teneriffe Hill neighbourhood plan/NP-OO4) overall outcomes are:
b.Proposals include small-scale uses with limited tenancy sizes while providing a variety of tenancy types.
(emphasis reflects the Appellants’ allegations)[25]
[25]Exhibit 6.06.

The Appellants further contend that the proposed development is inconsistent with the following performance outcomes and associated acceptable outcomes contained in Table 7.2.14.1.3.A of the New Farm and Teneriffe Hill neighbourhood plan code:

Performance outcomes

Acceptable outcomes

General

PO1

Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:

a.      consistent with the anticipated density and assumed infrastructure demand;

b.      aligned with community expectations about the number of storeys to be built;

c.      proportionate to and commensurate with the utility of the site area and frontage width;

d.     designed to avoid a significant and undue adverse amenity impact to adjoining development;

e.      sited to enable existing and future buildings to be well separated from each other and avoids affecting the potential development of an adjoining site.

Note—Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.

Note—Development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.

AO1

Development complies with the number of storeys and building height set out in Table 7.2.14.1.3.B.

Note—Neighbourhood plans will mostly specify a maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.

If in the Mixed use centre precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-004)

PO12

Development reflects the pedestrian nature and scale of the locality and retains an appropriate visual relationship with adjoining residential precincts.

AO12

Development is in accordance with the maximum number of storeys and building height set out in Table 7.2.14.1.3.B

PO13

Development and building size and bulk is consistent with existing small-scale development, sensitive to the surrounding residential environment and exhibits a positive relationship with the street.

AO13.1

Development has a maximum gross floor area of:

a.      80% of the site area, or the gross floor area of the existing building, whichever is the greater; or

b.      the area of the site where the additional gross floor area is for affordable housing.

AO13.2

Development is in accordance with the maximum number of storeys and building height set out in Table 7.2.14.1.3.B

PO18

Development is of a small scale and provides a diverse range of services.

Note—Alternative tenancy sizes to that prescribed are appropriate where a new facility serving a local community need requires a larger space.

AO18

Development with single tenancies are a maximum of:

a.      80m² for offices and shops at ground level;

b.      150m² for offices above ground level;

c.      150m² for food and drink outlets where a restaurant.

(emphasis reflects the Appellants’ allegations)[26]
[26]Exhibit 6.06.

The Appellants do not allege non-compliance with subparagraphs (a) and (c) of performance outcome PO1.[27]
[27]Exhibit 6.05.
The Appellants’ allegations call for the following factual determinations about the design of the proposed development, namely:
Does the height of the proposed development, when considered with its setback, sensitively transition to the adjoining lower density zone?
Does the height of the proposed development complement, and provide a height similar to, the surrounding residential area?
Is the height of the proposed development consistent with the amenity and character and community expectations intended for the Mixed use centre precinct and the subject land?
Is the proposed development of a human scale?
Does the proposed development reflect the pedestrian nature and scale of the locality?
Will the height, scale and built form create a consistent and cohesive streetscape and built form character?
Will the proposed development respect, contribute to, and reflect the existing heritage, character, grain, style, and sense of place of New Farm?
Will the proposed development retain an appropriate visual relationship with the adjoining residential precincts?
Is the size and bulk of the proposed development consistent with the existing small-scale development and does it reflect the scale of the locality?
Is the proposed development sited to enable existing and future buildings to be well separated from each other?
Will the proposed development avoid adverse amenity impact to adjoining development and improve the amenity of the New Farm and Teneriffe Hill neighbourhood plan area?
Is the proposed development, and its uses, small-scale?
To answer these questions, it is necessary to understand:
(a)the features of the subject land;
(b)the features of the locality and its character; and
(c)the design of the proposed development and how its built form parameters and design informs its appearance.
It assists to consider those matters before turning to the assessment against the assessment benchmarks.
Before doing so, it is useful to make two general observations.
First, to assist me with the assessment of the proposed development against the applicable assessment benchmarks, including the determination of the issues to which I refer in paragraphs [22] and [23] above, I had the benefit of, amongst other evidence:
(a)the plans of the proposed development,[28] which depict, amongst other things, design details of the proposed building, including the height, setback and extent of site cover of the floorplates for the various levels of the building, and building elevations and sections;
(b)a landscape design;[29]
(c)the properly made submissions with respect to the proposed development;[30]
(d)photographs of other buildings in the local area and of the streetscape;[31]
(e)expert evidence with respect to architecture given by Mr Olsson and Mr Curtis, the architects retained by the Co-respondents and the Appellants respectively;[32]
(f)expert evidence with respect to visual amenity impacts given by Mr Powell, Dr McGowan and Mr Curtis, the visual amenity experts retained by the Co-respondents, the Council, and the Appellants respectively;[33] and
(g)expert evidence with respect to town planning given by Mr Buckley, Mr Buhmann and Mr Schomburgk, the town planners retained by the Co-respondents, the Council, and the Appellants respectively.[34]
[28]Exhibits 6.01 and 8.01.
[29]Exhibit 8.01.
[30]Exhibit 5.01.
[31]Exhibit 8.08.
[32]Exhibits 3.03 and 4.07 and oral testimony by the experts.
[33]Exhibits 3.03 and 4.07 and oral testimony by the experts.
[34]Exhibits 3.04 and 4.03 and oral testimony by the experts.
Second, the determination of the issues to which I refer in paragraphs [22] and [23] above calls for value laden judgments about which reasonable minds may differ. In general, although I respect the views of Mr Curtis and Mr Schomburgk, I do not accept their evidence to the extent that it differs from that of the other experts. I prefer the evidence of Mr Olsson, Mr Powell, Dr McGowan, Mr Buckley, and Mr Buhmann, whose evidence is more closely aligned with, and supported by, the other evidence that I accept. That other evidence includes the photographs that show the appearance of the area and the plans that show the design attributes of the proposed development.
What are the features of the subject land?
The subject land is located on an 840 square metre lot on the western corner of the intersection of Brunswick Street and Merthyr Road.[35] It is currently improved by a disused, single-level building that is built to the street alignment on Brunswick Street but setback from Merthyr Road to create a widened footpath along that frontage. The building has an area of about 700 square metres and previously housed food outlets and shops.[36] The existing building covers almost the entire area of the subject land, leaving no space for off-street parking. At the end of a driveway off Merthyr Road, there is a constrained space that is used for a service vehicle set-down area and refuse bins.[37]
[35]For ease of reference, in these reasons for judgment, the subject land’s frontage to Brunswick Street will be referred to as the northern boundary, the frontage to Merthyr Road will be referred to as the eastern boundary; the boundary shared with 78 and 78b Merthyr Road will be referred to as the southern boundary (and those properties will be regarded as the neighbouring properties to the south), and the boundary shared with 835 Brunswick Street will be referred to as the western boundary (and that property will be described as the neighbouring property to the west).
[36]Exhibit 3.02 p 12; Exhibit 3.03 p 6; Exhibit 3.04 p 6.
[37]Exhibit 3.04 p 6.
The subject land has frontage of approximately 32 metres to Brunswick Street and approximately 26 metres to Merthyr Road. Both Brunswick Street and Merthyr Road are relatively busy streets through the local area. Brunswick Street is the main north-south route extending through New Farm, and Merthyr Road is one of the main east-west routes.[38] Regulated on-street parking exists on the Brunswick Street frontage of the subject land. Merthyr Road has no parking across the frontage of the subject land.[39]
[38]Exhibit 3.03 p 6.
[39]Exhibit 3.04 p 6.
The topography of the subject land slopes gently from a high point along the north-western boundary of 5.6 metres Australian Height Datum to a low point along the south-eastern boundary of 4.4 metres Australian Height Datum.[40] The subject land presents as level to the Merthyr Road frontage. It slopes upwards from the intersection of Merthyr Road and Brunswick Street, rising about 1.5 metres along the length of the Brunswick Street frontage.[41]
[40]Exhibit 3.03 p 6.
[41]Exhibit 3.04 p 6.
What are the features of the locality and its character?
The intersection of Brunswick Street and Merthyr Road is a focal point within the urban fabric.[42] The combined open space of the intersecting streets provides a high degree of visibility of the built form located along the frontages on each corner of the intersection. It allows the separate elements of built form to be viewed in relation to each other.[43]
[42]Exhibit 3.03 pp 11, 29, 33.
[43]Exhibit 3.03 pp 11, 29, 33.
The existing buildings on the corners of the intersection do not exceed two-storeys in height. They have shop fronts that are built to the street frontages and have awnings along their frontages that extend over the adjoining footpaths. The two-storey buildings on the northern and eastern corners have visible pitched roofs, whereas the single storey buildings on the southern and western corners have roofs with minimal pitch, which pitch is concealed from view behind parapets.[44]
[44]Exhibit 3.03 p 11.
The two-storey buildings on the northern and eastern corners are more visually prominent due to their height and the visibility of their roof forms. They make a significant contribution to the character of this part of New Farm by reason of their heritage appearance. The single-storey buildings on the southern and western corners are less prominent. Their appearances are primarily characterised by their awnings and shop fronts.[45]
[45]Exhibit 3.03 p 11; Exhibit 3.04 p 8.
The land uses in the buildings on the corners of the intersection consist of:
(a)on the northern corner, a two-storey local character commercial building that is of local heritage significance, which contains a prominent, long-standing pharmacy on the ground level;
(b)on the eastern corner, a two-storey local character commercial building that has local heritage significance, and contains several retail tenancies on the ground level;
(c)on the southern corner, a modern single-level commercial building; and
(d)on the western corner, a disused, single-level retail building on the subject land.[46]
[46]Exhibit 3.04 p 8; Exhibit 3.03 pp 11-3.
Mr Curtis opines that the visual conjunction of the built form reinforces the importance of the intersection as a visual node that contributes to the legibility of the settlement pattern and assists with cognitive mapping.[47] He says that the built form on the corners, and the commercial nature of the uses contained therein, contributes to the intersection’s overall urban identity as a landmark within the settlement pattern of New Farm and is important to the sense of place of the locality. In Mr Curtis’ view, the visibility of the built form on the corners accentuates the contribution each building makes to the local character.[48] Mr Curtis also regards the intersection of Brunswick Street and Merthyr Road as a key activity focus within the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct in the New Farm and Teneriffe Hill neighbourhood plan area. He says the intersection will be visited by many people.[49]
[47]Exhibit 3.03 pp 11, 29 and 33.
[48]Exhibit 3.03 p 11; Exhibit 3.04 p 8.
[49]Exhibit 3.03 p 11.
Moving from the intersection further along Brunswick Street to the northwest, the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct extend for a short distance of approximately 35 metres. Further along the street, the land is in the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[50]
[50]Exhibit 3.03 p 20; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).
On the southwest side of Brunswick Street, extending from the subject land northwest to the intersection of Moreton Street, the existing streetscape is comprised of three and four-storey multiple dwellings. The height and scale of these buildings creates a legible increase in the intensity of development to the northwest of the intersection beyond the subject land.[51]
[51]Exhibit 3.03 p 20.
On the opposite side of Brunswick Street, there is one and two-storey scale character style housing. These houses include some commercial uses. They adjoin the one and two-storey commercial development that extends from the northwest corner of the intersection. Further to the northwest, to the corner of Villiers Street, the houses are adjoined by one and two-storey houses and multiple dwellings. Most of those buildings feature pitched roofs and character-style appearance.[52]
[52]Exhibit 3.03 p 20.
Further northwest along Brunswick Street, past the intersection with Moreton Street, the character of the streetscape and the local area transitions to an even more intensive urban environment than that which is centred on the Brunswick Street and Merthyr Road intersection.[53]
[53]Exhibit 3.03 p 21.
Moving southeast along Brunswick Street, the land in the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct extends approximately 107 metres along the northern side of Brunswick Street to Welsby Street, and approximately 42 metres along the southern side of Brunswick Street. The land is then located within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[54]
[54]Exhibit 3.03 p 18; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).
The existing built form to the southwest, extending along the northern side of Brunswick Street to the intersection of Welsby Street, is comprised of one, two and three-storey commercial buildings that are either built to the street frontage or proximate to it. Two on-grade car parks extend from the frontage at 90-degrees. They disrupt the continuity of the building edge to the street.[55]
[55]Exhibit 3.03 p 18.
Along the southern side of Brunswick Street, southeast of the intersection with Merthyr Road, the built form is comprised of one and two-storey commercial buildings that are either built to the street frontage or proximate to it. Land within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area adjoins these buildings to the southwest. That land is improved by buildings primarily comprised of one and two-storey houses and multiple dwellings. Many of these existing buildings include pitched roofs and character style façade appearances. However, there are a few notable exceptions, including the prominent four-storey, face-brick, flat-roofed multiple dwelling at 921 Brunswick Street.[56]
[56]Exhibit 3.03 pp 18-9; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).
Mr Curtis opines that the development within the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct is more intense than the existing development to the southeast along Brunswick Street that is within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area. However, he says that the height and scale of the existing development is compatible with that which it adjoins. He also says that there is a transition between the two areas that results in a cohesive streetscape character. He considers the cohesive streetscape character to be integral to the identity of the locality.[57]
[57]Exhibit 3.03 p 20.
Beyond the intersection of Brunswick Street and Merthyr Road to the northeast, the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct extend for approximately 140 metres along the eastern side of Merthyr Road and for approximately 106 metres along the western side of Merthyr Road. The land is then located within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[58]
[58]Exhibit 3.03 p 15; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).
The existing built form along the eastern side of Merthyr Road, extending to the intersection with Hickey Street, is primarily comprised of one and two-storey commercial buildings built to the street frontage. There is also a three-storey mixed-use development. The streetscape is fragmented by the on-grade car parking on the eastern side of Merthyr Road. Mr Curtis opines that this car parking provides a legible interval to the adjoining residential area.[59]
[59]Exhibit 3.03 pp 15-6.
Further north along the eastern side of Merthyr Road, the adjoining residential area is primarily comprised of one and two-storey houses and multiple dwellings. The built form is generally characterised by a consistent grain of lots and building widths. The buildings feature weatherboard external cladding, verandas, and pitched roof forms. However, the streetscape also includes some buildings that are differentiated by their three-storey height and masonry construction.[60]
[60]Exhibit 3.03 p 17.

Mr Curtis opines that there is compatibility in height and scale between the existing developments along this stretch of Merthyr Road. He says that there is a transition between the two areas that results in a cohesive streetscape character that is integral to the identity of the locality.[61]
[61]Exhibit 3.03 p 18.
Beyond the intersection to the southwest along Merthyr Road, the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use centre precinct terminate at the boundary of the subject land. The land is then located within the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone and the Low-medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area.[62]
[62]Exhibit 3.03 p 14; Exhibit 2.03; Admissions in Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023).
Extending for approximately 130 metres south along Merthyr Road to the intersection with Lower Bowen Terrace and Bowen Terrace, the existing built form is primarily comprised of one to three-storey houses and multiple dwellings. A few are utilised for commercial uses. Most have articulated, human-scale appearances. Several include character-style architectural elements, such as weatherboard cladding and verandas, and most have visible pitched roof forms.[63]
[63]Exhibit 3.03 pp 14-5.
Mr Curtis opines that this existing streetscape to the southwest along Merthyr Road has a relatively cohesive appearance. He opines that this is primarily due to the consistent lot and building widths and building separations, and the compatible height and scale of the built form.[64] He says that the more intense development centred on the intersection of Merthyr Road and Brunswick Street is compatible with the height and scale of the development further to the south along Merthyr Road. Mr Curtis says there is a transition between the two areas that results in a cohesive streetscape character, which he regards as integral to the identity of the locality.[65]
[64]Exhibit 3.03 p 14.
[65]Exhibit 3.03 pp 14-5.
Mr Olsson opines that the intersection has less significance to the locality’s character and identity then that ascribed by Mr Curtis. Mr Olsson explains that, in his opinion, the principal activity focus for pedestrians is further to the north along Merthyr Road, where pedestrian amenity is enhanced close to the arcade leading to New Farm Coles. New Farm Coles is the retail anchor for the Merthyr Village Shopping Centre. Mr Olsson notes that the subject land is on the southern edge of the District centre zone and on Brunswick Street, which is more heavily trafficked than Merthyr Road near New Farm Coles. He opines that pedestrians are less likely to dwell in Brunswick Street than Merthyr Road.[66]
[66]Exhibit 3.03 p 29.
Mr Olsson also opines that there is not a uniform visual context for each of the four corners of the Brunswick Street and Merthyr Road intersection. He says that the subject land has three and four-storey buildings adjoining in Brunswick Street, whereas the corner buildings on the northern side of Brunswick Street have two-storey neighbours. He explains that the visibility of the three and four-storey apartment buildings that extend from the subject land to the west is enhanced by the space around the intersection. The photos show their prominence, which appears to be attributable, in part, to the ground level rise towards the west along Brunswick Street. Further, in terms of intended character, Mr Olsson notes that the acceptable outcomes within the New Farm and Teneriffe Hill neighbourhood plan code foresee up to three storeys for these sites.[67]
[67]Exhibit 3.03 pp 20-2 figures 18, 19 and 21 and p 29.
Mr Powell expresses similar opinions to that of Mr Olsson. Mr Powell opines that, from a visual amenity or landscape character perspective, the intersection of Brunswick Street and Merthyr Road is not the principal focus of activity. He explains that kerbside and laneway dining areas (where pedestrians can stop for longer periods to take in the surroundings) and large, off-street, car parking areas (where vehicle speed is reduced) are generally located away from the intersection. So too is the primary host of activity, namely New Farm Coles. Mr Powell opines that the character of the intersection is typified by conveyance of pedestrian and vehicular traffic through the intersection – not safe and attractive areas that invite pedestrians to stop for long periods and take in views of the subject land.[68]
[68]Exhibit 3.03 p 33.
In addition, Mr Powell explains that the intersection effectively sits at the base of a hill. He says the local topography has the effect of drawing the observer’s eye up the hill, to the northwest, towards some of the taller, and more elevated, built form that emerges along that uphill route. He opines that the height and scale of the buildings to the northwest along Brunswick Street create a legible increase in the intensity of development to the northwest of the intersection.[69]
[69]Exhibit 3.03 pp 33-4 and figure NP1.
Dr McGowan accepts that the intersection of Brunswick Street and Merthyr Road is a focal point that contributes to legibility of the locality. He accepts that, because of the void created by the intersection, the built form on each corner of the intersection will be visually prominent. He says that the existing buildings on each corner help to frame the focal point by being built to their front boundaries and incorporating awnings over the footpaths. He accepts that the northern and eastern corners of the intersection contribute some visual interest and scale that enhances the memorability and legibility of the focal point. However, in his view, the existing built form on the subject land and on the southern corner make little such contribution. He says those buildings are less prominent. He says that their appearance is primarily characterised by their awnings and shop fronts. Dr McGowan opines that the intersection’s role as a focal point, and its contribution to the legibility of the area, is not dependent on the built form that surrounds the intersection, or on a consistency or uniformity of built-form scale or appearance. Rather, in his view, the intersection is a focal point that contributes to legibility of the locality primarily because of the void that is created in the development fabric by the intersection of the major thoroughfares through New Farm.[70]
[70]Exhibit 3.03 pp 38-9.
With respect to the surrounding context and the character of the local area, Dr McGowan agrees with the observations of Mr Olsson and Mr Powell about the variation in building height in the area. He says that while one and two-storey buildings may be prominent through the local area, there are three and four-storey buildings to the west of the subject land in Brunswick Street, three-storey multiple dwellings along the southern side of Merthyr Road to the south of the subject land, and three and four-storey buildings on both sides of Brunswick Street east of Merthyr Road. Most of the three-storey buildings have pitched roofs, which Dr McGowan says adds to the height and scale of the buildings. Like Mr Powell, Dr McGowan also considers it relevant that the four-storey buildings to the west of the subject land sit at higher elevations than the subject land.[71]
[71]Exhibit 3.03 p 39.
Dr McGowan disagrees with Mr Curtis’ opinion that the existing streetscape to the southwest along Merthyr Road has a relatively cohesive appearance. Dr McGowan says that the streetscape to the southwest includes one to three-storey buildings that are detached houses and multiple dwellings, some of which are on narrow lots while others (such as 1A Hazel Street, 498 Bowen Terrace, and 59 Merthyr Road) are oriented to present a wide frontage to Merthyr Road. He notes that, despite being set behind large trees, the multiple dwelling at 59 Merthyr Road is obvious as a large two to three-storey building. Dr McGowan says that the variation in built form continues along the length of Merthyr Road. It includes the single-storey Merthyr Road Uniting Church, several three and four-storey multiple dwellings, a one to two-storey commercial complex at the corner of Merthyr Road and Moray Street, and a seven-storey multiple dwelling on the other corner of that intersection. Dr McGowan opines that the streetscape of Brunswick Street to the northwest and southeast of the subject land is also varied. He says that it is characterised by a greater frequency of multiple dwellings compared to detached houses.[72]
[72]Exhibit 3.03 p 39.
Mr Buckley also gave evidence about the existing character of the area. He opines that there is not a single design or form of architecture predominating. Mr Buckley says that a distinguishing feature of New Farm is its high concentrations of both traditional Queenslander vernacular designs and art deco designs set amongst modern and other ad-hoc styles.[73]
[73]Exhibit 3.04 p 19.
Mr Buhmann agrees with Mr Buckley as to the mixed nature of the built form within the centre and surrounding area. He says that commercial uses are a mix of between one and three storeys in height with a variety of building forms and a lack of a coherent style. He opines that the built form is a mix of older, character-style buildings infused with more contemporary brick buildings, some of which portray character elements with gables and pitched rooves. In his view, the predominant form of the commercial centre is defined by the ground-level street activation, streetscape planting and associated pedestrian awning rather than by an identifiable building type or scale.[74]
[74]Exhibit 3.04 p 21.
I had the benefit of a site inspection to assist my understanding of the evidence. Having regard to the many photographs of the area, I do not accept Mr Curtis’ opinions about the existing character of the area. I accept the evidence of Mr Olsson, Mr Powell, Dr McGowan, Mr Buckley, and Mr Buhmann on this issue. Their opinions about the existing character of the area and the streetscape, and the relative importance of the built form on the corners of the intersection of Brunswick Street and Merthyr Road to that character, accord with the many photographs of the area in evidence before me.
What is the design and appearance of the proposed development?
The existing building on the subject land is to be demolished and replaced with a four-storey building that has a height of 14.6 metres to the top of the roof over level 3, 15.8 metres to the top of the lift overrun, and 17.51 metres to the top of a screened plant deck. It has horizontal dimensions of 32.75 metres and 25.82 metres.[75] In addition to the four storeys above ground, the building has two basement levels of carparking. The basement is to be accessed from a driveway off Brunswick Street. The site cover is close to 100 per cent of the area of the subject land.[76]
[75]Exhibit 6.01.
[76]Exhibit 3.03 p 8.
The proposed development will accommodate:
(a)two commercial tenancies with a combined gross floor area of 410 square metres at ground level, and a small plaza space at the north-eastern corner of the subject land; and
(b)a childcare centre at levels 1 to 3 that has a combined gross floor area of 903 square metres, and which provides large outdoor play areas that occupy most of each level and are enclosed by a mix of glass balustrades, open steel balustrades, and solid walls to a height of 1.8 metres.[77]
[77]Exhibit 3.03 p 8.
The proposed development will, for the most part, be built to all boundaries at ground level and at level 1. On level 2, the proposed development has setbacks between zero and 6.15 metres from the northern boundary, between zero and 7.33 metres from the eastern boundary, between 0.8 and 3.05 metres from the southern boundary, and between zero and 1.05 metres from the western boundary. At level 3, the proposed development is setback between 0.6 and 6.15 metres from the northern boundary, between 3.25 and 7.33 metres from the eastern boundary, between 3.0 and 7.33 metres from the southern boundary, and between 1.55 and 11.85 metres from the western boundary.[78] The floor plates have a stepped horizontal alignment at the subject land’s western corner to the intersection of Brunswick Street and Merthyr Road to accommodate the segmented corner truncation.[79]
[78]Exhibit 3.03 p 8.
[79]Exhibit 3.03 p 22.
Although the proposed development will, for the most part, be built to all boundaries at ground level and at level 1, there are recesses accommodating planter boxes at both levels. The ground storey built-to-boundary walls along the Brunswick Street frontage (or northern elevation) are full-height, fixed-glass walls with a glazed entry door. Along the Merthyr Road frontage (or the eastern elevation), the walls are a combination of fixed glass and operable sliding glazing.
An awning extends around the perimeter of the frontages just below the second storey. It terminates towards the northwest end of the Brunswick Street frontage to provide clearance for the vehicle access driveway. The driveway is located adjacent to the northwest boundary, at the high point of the subject land.[80]
[80]Exhibit 3.03 p 22.
The length of the built form’s facade at ground level along Brunswick Street, including the stepped truncation on the corner to Merthyr Road, will be 32.75 metres. Above the awning, the second and third storeys will have a continuous wall length alignment of approximately 25 metres before setting back in steps to accommodate the corner truncation.[81] The Brunswick Street façade at the second and third storeys will be articulated by the fixed glazing at the northwest end of the façade and the two central openings. Two other openings are located within the setback at the corner truncation. The façade will be primarily clad with chamferboards.[82]
[81]Exhibit 3.03 p 22.
[82]Exhibit 3.03 p 22.
The Merthyr Road façade has a similar design approach to the Brunswick Street façade. The building’s overall length at the ground and second storeys along Merthyr Road will be 25.82 metres, including the stepped truncation on the corner to Brunswick Street. The façade will also include two central openings at the second and third storeys with two other openings within the setback at the corner truncation.[83] At the southwest end of the façade, the third storey is setback 3.25 metres from the Merthyr Road frontage to accommodate a planter box. It is setback between approximately 3 and 6.18 metres from the southern boundary.[84] The Merthyr Road façade will also be primarily clad with chamferboards, with the stepped southwest end having a tile finish.[85] The fourth storey will be setback between approximately 3.25 and 4.5 metres from the Merthyr Road frontage, and between 0.6 and 3.35 metres from the Brunswick Street frontage. The stepped corner truncation increases the setbacks to 7.33 and 6.15 metres respectively. The external walls of the fourth storey will be primarily finished with rendered blockwork, and will have several, small, fixed windows. A mechanical plant area will be located on the roof of the fourth storey. [86]
[83]Exhibit 3.03 pp 22-3.
[84]There appears to be differences between the dimensions on different plans. Compare, for example, Exhibit 8.01 p 6 and Exhibit 6.01 p 2. See also the differences between Exhibit 3.03 p 8 and p 22.
[85]Exhibit 3.03 pp 22-3 and Exhibit 8.01. Some of the dimensions in Exhibits 8.01.
[86]Exhibit 3.03 p 23.
To the south, the ground storey and second storey walls are built to the side boundary, where the proposed development adjoins a character house that contains a commercial use. To the west, the ground, second and third-storey walls are built to the common side boundary with the neighbouring multiple dwelling. For the most part, both walls are solid, but they have some cut-out openings. The west facing wall includes a planter box and tiled areas.[87]
[87]Exhibit 3.03 p 23.
The three-storey-high walls that adjoin the Brunswick Street and Merthyr Road frontages will be about the same height as the neighbouring, four-storey multiple dwelling to the northwest. That building is setback about six metres from the Brunswick Street frontage and has a frontage width of approximately 11.5 metres. The proposed development will have a zero setback to the street frontage and significantly greater frontage width to both Brunswick Street and Merthyr Road.[88]
[88]Exhibit 3.03 p 23.
The proposed development will be separated from the multiple dwelling at 835 Brunswick Street by 9.6 metres (measured to balconies) and 11.0 metres (measured to the wall). It will be separated from the two-storey building at 78 Merthyr Road by three metres but has a greater extent of separation from the adjoining three-storey multiple dwelling building at 78b Merthyr Road.[89]
[89]Exhibit 3.03 p 8; Exhibit 8.01; Exhibit 6.01.
The proposed development includes in-ground shrubs between the driveway and the western boundary. It retains existing street trees and palms and proposes a new street tree along Brunswick Street frontage. The proposed development provides containerised planting at ground level in front of the commercial tenancies, and at all other levels. Awnings above the footpaths are provided along both frontages.[90]
[90]Exhibit 3.03 p 8.
The height and the other built-form metrics set out above confirm that the proposed development cannot demonstrate compliance with the assessment benchmarks in City Plan by showing it conforms to the acceptable outcomes. Rather, to determine if there is compliance, it is necessary to make the value-laden judgments that are called for by the performance outcomes and overall outcomes.
In making the required value-laden judgments, the proposed development’s empirical height in metres is of less significance than its visual presentation in storeys. This is because it is unlikely that members of the community would appreciate the height of a building in metres as they walk or drive through the neighbourhood. The mere recitation of the other built-form metrics also does little to convey the appearance of the building and its consistency with the character of the area. That is the real issue to be considered in this case. Turning then to the evidence about the appearance of the proposed development.
Mr Curtis describes the appearance of the Brunswick Street and Merthyr Road façades as characterised by the modulated geometry of the building envelope’s appearance. He opines that the appearance has a robust, fortress-like quality that is highlighted by the zero frontage setbacks and high visibility afforded by the prominent corner location. He says that the very limited articulation of the south and west walls results in an austere and robust geometrical presentation that accentuates the visual bulk of the proposed development’s appearance and contributes to its fortress-like character.[91]
[91]Exhibit 3.03 p 23.
Mr Olsson disagrees with Mr Curtis’ description of the appearance of the proposed development. Mr Olsson says that the building has an almost equal balance between walls and voids due to the extensive areas of outdoor play space incorporated towards the street frontages on levels 1, 2 and 3. He says those outdoor play space areas have balustrades and planter boxes that create small-scale detail in the elevations. Mr Olsson disagrees with Mr Curtis’ characterisation of the proposed development as being fortress-like. He says the solid vertical planes are lightweight chamferboard. Mr Olsson says that the lapped joints in these boards create shadow and small-scale detail, breaking down the overall form. He says that the landscaping that is visible from the street further lightens and softens the architectural character. In Mr Olsson’s opinion, the street awning also breaks down the scale of the building to a pedestrian-scale. He says the awning and the highly modulated built form, setbacks, materials, details, and landscape create a human scale in the building.[92] Mr Olsson describes the architecture as contemporary. It is comprised of wide openings for the children’s outdoor play areas, elevations articulated by vertical chamferboard bays, and smaller areas finished with painted render and tile surfaces.[93]
[92]Exhibit 3.03 p 30.
[93]Exhibit 3.03 p 64.

Mr Powell opines that the proposed development will present to the street frontage as a three-storey building.[94] During cross-examination, he explained that those parts of the building that project above the third storey are well set back. Also, they present as elements that might not ordinarily be part of a storey, such as a lift overrun, a water closet, a roof-top plant, and a roof over a stairwell.[95]
[94]Exhibit 3.03 p 35.
[95]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 44-5 and 49-50.
Dr McGowan disagrees with Mr Curtis’ opinion that the proposed development has a fortress-like appearance. He explains that, in his view, a fortress is something that is fortified, impermeable and impenetrable. Dr McGowan acknowledges that the proposed development is characterised by a simple and course geometry. However, he says it is also characterised by voids and recesses, which provide a contrast of light and shade. In addition, it is characterised by disaggregation such that the building has a high degree of permeability, and the primary masses are broken down and modulated to be a comfortable human scale.[96] In his oral evidence, Dr McGowan further explained that the proposed development includes a great deal of variation in terms of the vertical alignment of different walls and windows. It has substantial openings. As such, there is not a singular mass, or a singular plane, presented to either Brunswick Street or Merthyr Road. In addition, the design of the proposed development incorporates a great deal of articulation and stepping of the built form, and a variety of materials and landscaping. Dr McGowan says that these design features will assist to erode the bulk of the building and to break it down such that it will not present as a monolithic, oppressive, or fortress-like building.[97]
[96]Exhibit 3.03 p 38.
[97]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 61.
In addition, Dr McGowan observes that the fourth level of the proposed development has a smaller footprint than the levels below. The wall enclosing the outdoor play area on the fourth level is set back from Brunswick Street by between 3.55 and 6.15 metres and from Merthyr Road by between 4.67 and 7.33 metres. Aside from the enclosed play area, the upper level comprises 114.7 square metres of day-care room, a store area, a staff area, amenities, the lift, and two stairwells. The roof over the fourth level covers these enclosed spaces and approximately half of the outdoor play area. Dr McGowan opines that the extent to which the upper level will be visible from Merthyr Road and Brunswick Street is limited. He says that the building will present more as a three-storey building with some rooftop elements, rather than as a full four-storey built form across the subject land.[98]
[98]Exhibit 3.03 p 38.
I do not accept the evidence of Mr Curtis about the appearance of the proposed development. His observations are discordant with what is depicted on the plans and elevations. I accept the opinions of Mr Olsson, Mr Powell, and Dr McGowan. They each provide cogent explanations for their opinions. Their opinions accord with the proposed development as it is shown on the plans, elevations, and visual representations in the perspective images.[99]
Does the height of the proposed development, when considered with its setback, sensitively transition to the adjoining lower density zone?
[99]In considering the perspective images and the elevations, I am mindful of the evidence of Mr Curtis, Mr Powell, and Dr McGowan about the limitations of those images, particularly those at Exhibit 8.01 pp 15-7 – see Exhibit 3.03 pp 25 and 38 and Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 45-6. I am also cognisant of the evidence of Mr Powell about the choice of an equivalent 27-millimetre lens - Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 47-8.
It is common ground that the subject land adjoins two lots to the south: 78 and 78b Merthyr Road, New Farm.[100] Both are in the (2 or 3 storey mix) zone precinct of the Low-medium density residential zone. The land at 78 Merthyr Road fronts Merthyr Road and is improved by a two-storey, mixed-use building that accommodates a physiotherapy clinic and a residential tenancy. It has the appearance of a character house. A three-storey, residential multiple dwelling unit building sits behind it. It has the street address of 78b Merthyr Road and is accessed via a driveway immediately adjacent the southern boundary of the subject land.[101]
[100]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 13 March 2023) 3-4.
[101]Exhibit 3.03 pp 6 and 43; Exhibit 8.01 pp 23-7.
The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 5.b. of the District centre zone code because the height of the proposed development does not sensitively transition to these adjoining lots to the south.[102] In support of their allegation of non-compliance, the Appellants rely on the evidence of Mr Curtis about the transition between the proposed development and the development to the south on Merthyr Road.
[102]Exhibit 6.06 [4(a)].
Mr Curtis acknowledges that the proposed development has a stepped height that decreases towards the adjacent two-storey character house but considers that the built-form metrics are of significance. In that respect, Mr Curtis observes that the proposed development will have a two-storey, built-to-boundary wall that is nine metres high. He notes that the third and fourth storeys will be setback three metres from the boundary. Mr Curtis places significance on the overall height, which will be 14.3 metres. He says this is approximately five metres higher than the ridge line of the adjacent character building. He notes that the screened mechanical plant room enclosure above the fourth storey will be an additional 3.2 metres higher. Mr Curtis opines that the nine-metre-high built to boundary wall and the three-metre setback to the overall height of the third and fourth storeys will not provide an effective transition of height and scale to the neighbouring properties.[103] Mr Curtis explains his position by reference to Figure 28 in the Joint Experts’ Report – Visual Amenity and Architecture.[104] That shows the relationship between the proposed development and the existing two-storey neighbouring properties to the southwest along Merthyr Road.
[103]Exhibit 3.03 pp 43-4.
[104]Exhibit 3.03 p 44.
Mr Olsson disagrees with Mr Curtis. He says that the predominantly three-storey height of the proposed development’s presentation to Merthyr Road steps down to two-storeys and then to one-storey on the street alignment at the location where the side wall of the proposed development meets the southern boundary. He opines that this stepping of built form articulates the street elevation and reduces the scale of the proposed development where it relates to the existing two-storey building. Mr Olsson further opines that, viewed in combination with the three-metre-wide separation between the proposed development and the building to the south, the transition of heights across the building is sensitive and appropriate.[105] Mr Olsson illustrates his opinion by reference to Figure RO 2 in the Joint Experts’ Report – Visual Amenity and Architecture.[106]
[105]Exhibit 3.03 p 51.
[106]Exhibit 3.03 p 31.
Mr Powell also disagrees with Mr Curtis. He considers that the proposed development incorporates a height that sensitively transitions to the adjoining land to the south. In forming his opinion, Mr Powell took into account that acceptable outcome AO26 of the Centre or mixed use code identifies that it is acceptable to have a blank wall with zero side setback for non-residential uses where there is a podium or a building of up to five storeys.[107] The proposed development complies with this. Further, he explains that the proposed development ensures that the maximum height of the built-to-boundary blank wall remains at or below 8.9 metres above natural ground and steps down to a maximum height of 5.5 metres within the front 6.5 metres of the proposed development (i.e., adjacent the southern boundary and for 6.5 metres measured from the Merthyr Road frontage). He says that the parts of the proposed development that are of greater height than the adjoining development are more removed from the side boundary. He opines that this achieves a sensitive transition down to the boundaries. Mr Powell explains his opinion well by reference to Figure NP7 in the Joint Experts’ Report – Visual Amenity and Architecture, which is a visual depiction of the proposed development that Mr Powell annotates with arrows to demonstrate the many steps that have been incorporated in the design of the building.[108]
[107]City Plan s 9.3.3.3 Table 9.3.3.3.A AO26: Exhibit 2.01 pp 117 and 138.
[108]Exhibit 3.03 p 55.
Dr McGowan agrees with the opinions expressed by Mr Olsson and Mr Powell. He says that an appropriate transition is achieved in this instance through increased setbacks from side boundaries at levels 2 and 3 and through stepping and modulation of the building at the southern and northern corners. He says that the appearance of setbacks and steps in the building are reinforced by the containerised landscaping. In Dr McGowan’s opinion, transition is also assisted by the three-metre-wide separation from the building to the south and by the separation from the multiple dwelling building to the west of over 10 metres.[109]
[109]Exhibit 3.03 p 57.
Whether development incorporates a height and setback that sensitively transitions to adjoining lower-density development to the south along Merthyr Road is a question of fact about which reasonable minds may differ. I do not accept the opinions expressed by Mr Curtis in this regard. I prefer the evidence of Mr Olsson, Mr Powell, and Dr McGowan. The visual depiction of the proposed development in Figure RO 2 and Figure NP7 in the Joint Experts’ Report – Visual Amenity and Architecture[110] accords with the details of the development evident on the plans and elevations. They illustrate a sensitive transition. In my view, Figure 28 also depicts a sensitive transition.
[110]Exhibit 3.03 p 31.
I am satisfied that the proposed development incorporates a height and setback that sensitively transitions to adjoining lower density zones and zone precincts.
Does the height of the proposed development complement, and provide a height similar to, the surrounding residential area?
The Appellants allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 6.a. of the District centre zone code because it is not of a height that complements the surrounding residential area to the south.[111] The Appellants also allege that the proposed development does not comply with the overall outcome in s 6.2.2.3 6.c. of the District centre zone code because it is not of a height similar to surrounding residential areas to the south.[112] In support of their allegations, the Appellants rely on four aspects of the evidence. First, the undisputed description of the surrounding context given by the architecture and visual amenity experts. Second, evidence given by Mr Curtis. Third, evidence about the built form metrics of the proposed development. Fourth, evidence given by Mr Buhmann during cross-examination.[113]
[111]Exhibit 6.06 [4(b)].
[112]Exhibit 6.06 [4(c)].
[113]Outline of Argument for the Appellants pp 8-9 [23], pp 11-2 [27] and [28], and pp 13-6 [31]-[38].
With respect to the surrounding context, the architecture and visual amenity experts collectively opine that the cluster of commercial and retail buildings and activity that comprises the New Farm District Centre is well defined. It is characterised by a mix of commercial buildings, several of which reflect traditional building character. The buildings are predominantly one and two storeys in height, but there are notable exceptions. They are a four-storey building at 24 Welsby Street, three-storeys above the bank on Brunswick Street, and three-storeys above the bookstore on Merthyr Road. The scale of built form in the District Centre varies from small shops, such as those north of the subject land, to the large footprint of the Merthyr Village Shopping Centre, which extends across several lots and has a total footprint of approximately 8,000 square metres. The streetscapes within the District Centre are defined by active shopfronts, continuous awnings, street landscaping, and mature street trees.[114] Beyond the District Centre, the locality is defined by a variety of generally, but not exclusively, low-rise built forms, including detached houses (many of which present traditional building character), townhouses, and relatively modest multiple dwellings. The locality is otherwise characterised by a regular, orthogonal street network, a prevalence of mature street trees, gently undulating topography, and a relatively fine-grained lot and built form pattern.[115]
[114]Exhibit 3.3 p 6.
[115]Exhibit 3.3 p 6.
The evidence of Mr Curtis on which the Appellants rely includes the his evidence about the relationship between the proposed development and the commercial activities that address the intersection of Brunswick Street and Merthyr Road and the relationship with the adjoining residential development on Merthyr Road to the south-west to which I have referred in paragraphs [31] to [33], [35], [43], [47], [49], [50] and [81] above, and his further evidence referred to in paragraphs [91] to [94] below.
Mr Curtis acknowledges that there are differences in height, roof form and character of appearance between the two-storey buildings on the northern and eastern corners of the intersection of Brunswick Street and Merthyr Road and the single-storey buildings on the southern and western corners. Notwithstanding those differences, he says that all four buildings are of a compatible one to two-storey scale. He says that contributes to their compatibility and the cohesive character of the intersection’s appearance.[116]
[116]Exhibit 3.03 p 11.
Mr Curtis says that notwithstanding the setback provided to the fourth storey, the proposed development will have a robust geometric form with an imposing height in relation to the Brunswick Street and Merthyr Road frontages. He says its height and scale will dominate the intersection and alter the otherwise existing cohesive character. He further opines that the proposed development’s fortress like appearance exacerbates the visual impact of its incompatible bulk and scale. Except for the chamferboard wall cladding, Mr Curtis says that the proposed development lacks any meaningful architectural elements or details that are sympathetic to the prevailing visual character of the landmark intersection or the neighbouring streetscapes to the southeast, northeast, and southwest.[117]
[117]Exhibit 3.03 p 27.
In Mr Curtis’ opinion, the proposed development is of an inappropriate height and scale for its locality. He accepts that the ground storey frontages, and the second and third storey façade articulation will maintain a human scale. However, he says that the austere appearances of the built-to-boundary side walls to the neighbouring properties will be highly visible and will not maintain a human scale. Mr Curtis says the proposed development will not contribute to a cohesive streetscape or built form character.[118]
[118]Exhibit 3.03 p 27.
Mr Curtis opines that the impact of the four-storey height, scale and form of the proposed development will be partially mitigated by the varied setback of the fourth storey. However, he says that its height, scale, and form will still be visible in relation to the existing development within the precinct and sub-precinct where the prevailing character and amenity is clearly comprised of one and two storey buildings. He says that while the acceptable outcomes of the New Farm and Teneriffe Hill neighbourhood plan code contemplate building heights of up to three-storeys within the precinct and sub-precinct in which the subject land is located, no buildings of such height currently exist. As such, he says the visual impact and contrast of the proposed development’s four-storey height will be accentuated in relation to the existing character and amenity.[119]
[119]Exhibit 3.03 p 27.
I do not accept the evidence of Mr Curtis. His opinions are discordant with other evidence that I accept, including the photographs and the depiction of the proposed development in the plans, elevations, and visual representations.

For reasons explained in paragraphs [72] and [73] above, I do not accept the Appellants’ reliance on built form metrics to be compelling.
The evidence of Mr Buhmann on which the Appellants rely to support their allegations was given during cross-examination. Mr Buhmann accepted that the proposed development, as shown in Figure RO 1 and Figure RO 2 in the Joint Experts’ Report – Visual Amenity and Architecture would present as three levels but would present as an outlier as compared to the existing built form on the other three corners of the intersection.[120] This evidence does not assist me to determine whether the height of the proposed development complements, and is similar in height to, the surrounding residential area. The built form to which Mr Buhmann referred is not in a residential area. It is located on land in the District centre zone. In any event, I do not consider this compelling evidence of an inconsistency with the character of the surrounding area. Mr Buhmann’s evidence was responsive to the questions asked of him, which were premised on an assumption of an unrealistically narrow consideration of matters that inform the character of the area.
[120]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 9-11. The extract and summary of the effect of the evidence in the Outline of Argument for the Appellants at pp 11-2 [27] and [28] is not an entirely fair representation of the effect of the evidence.
For the reasons provided above, I do not accept the Appellants’ submissions that the proposed development does not complement, and provide a height similar to, the surrounding residential area to the south.
This issue was also the subject of evidence from Mr Olsson, Mr Powell, and Dr McGowan.
Mr Olsson says that the proposed development presents to Brunswick Street as having a predominant height of three storeys. He explains that this presentation is achieved by the setback of the fourth storey from Brunswick Street and the inclusion of a continuous three-storey-high parapet.[121] Mr Olsson opines that the alignment of the three-storey parapet with the height of the four-storey residential building to the west provides a height in Brunswick Street that complements surrounding residential areas. In addition, existing residential buildings on Brunswick Street step up the hill away from the subject land, placing the proposed development within a context of similarly scaled buildings.
[121]Exhibit 3.03 pp 29-30.

During cross-examination Mr Schomburgk agreed with this evidence given by Mr Duane. He added that, given the extent of regulation for childcare centres in terms of the number of staff and other factors, their viability is challenged if they are under 75 places.[346] Having regard to Mr Schomburgk’s evidence, I infer that it is unlikely that the demand identified by Ms Meulman would be met by the provision of two smaller centres that provided a combined total of either 100 or 120 childcare places.
[346]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 82-3.
Fifth, as was acknowledged by Ms Meulman during cross-examination, the fact that Sparrow Early Learning Group, an experienced operator in Queensland, has entered into an agreement to lease with the developer of the subject land[347] is an indication of the need for the proposed development. It demonstrates that they are sufficiently confident that a childcare centre of the size proposed would be viable.[348]
[347]Exhibit 8.02.
[348]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 30.
For the above reasons, I am comfortably satisfied that there is a need for the proposed childcare centre with its proposed 121 places.
Is there a need for the proposed development in its entirety?
As I have mentioned above, the Co-respondents allege that there is a need for the proposed development. They submit that City Plan itself recognises that there is a need for the proposed development. They also say that the need for the proposed development in its entirety is demonstrated by the evidence of Mr Duane.
I accept that City Plan recognises, in a town planning sense, the importance of providing development such as that proposed here. The New Farm and Teneriffe Hill neighbourhood plan code permits larger tenancy sizes to facilitate a new community facility to serve the needs of local residents on land in the Mixed use precinct. The proposed development furthers this outcome. It provides a community service that is needed, namely a childcare centre of 121 places.
In addition, City Plan expressly identifies the need for smaller tenancies that provide a diverse range of services that are centre activities. It does so by including the subject land in the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use precinct in the New Farm and Teneriffe Hill neighbourhood plan area. The proposed development delivers on that identified community need. As much was acknowledged by Ms Meulman during cross-examination. She accepted that the proposed development would further:
(a)the overall outcome sought in s 7.2.14.1.2 7.a. of the New Farm and Teneriffe Hill neighbourhood plan code as the subject land is in the District centre, which does not presently contain a childcare centre, and, as such, the proposed development would increase the range of commercial uses in the centre;[349]
(b)the overall outcome sought in s 7.2.14.1.2 7.b. of the New Farm and Teneriffe Hill neighbourhood plan code as the proposed development would provide a variety of tenancy types;[350]
(c)the overall outcome sought in s 7.2.14.1.2 7.c. of the New Farm and Teneriffe Hill neighbourhood plan code as the proposed development would provide a new community facility to service the needs of local residents;[351] and
(d)performance outcome PO18 of the New Farm and Teneriffe Hill neighbourhood plan code as the proposed development would provide a diverse range of services to serve a local community need.[352]
[349]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 34.
[350]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 34.
[351]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 34.
[352]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 35.
City Plan’s recognition of the need for the provision of a range of services that comprise centre activities, as are proposed in the ground floor tenancies of the proposed development, is also evident from:
(a)specific outcome SO4 in Table 3.3.4.1 of the Strategic framework, which requires Brisbane’s district centres and neighbourhood centres to continue to service local population needs;[353]
[353]Exhibit 2.02 p 45.
(b)land use strategy L4 in Table 3.3.4.1 of the Strategic framework, which requires that district centres and neighbourhood centres continue to evolve, offering an increasing range of local services and facilities;[354]
[354]Exhibit 2.02 p 45.
(c)the strategic outcome in s 3.4.1(1)(p) of the Strategic framework, which indicates that the provision of a broad range of community facilities is considered necessary to support the community’s recreational, community and social activities, and promote the physical, cultural, and social wellbeing of the community;[355]
[355]Exhibit 2.02 p 48.
(d)land use strategy L2.1 in Table 3.4.5.1 of the Strategic framework, which states:
“Potential amenity impacts from the development of community facilities or services in residential neighbourhoods will be considered in relation to the community benefit that the facility or service will provide to the broader community.”[356]
(e)the overall outcome in s 6.2.2.3 4.a. of the District centre zone code, which states:
“Development provide a diverse range of centre activities comprising commercial, retail, government, service, community and cultural activities and level of economic and social activity to serve a district catchment, along with visitors, workers and residents in the centre.”[357]
(f)the overall outcome in s 6.2.2.3 6.b. of the District centre zone code, which seeks development that creates a centre that provides localised access to goods and services;[358] and
(g)performance outcome PO18 of the Centre or mixed use code, which calls for development to provide a land use mix that supports the intended function of the centre and includes complementary uses such as retail, employment, and community facilities and uses that provide for the everyday needs of the local community.[359]
[356]Exhibit 2.02 p 59.
[357]Exhibit 2.01 p 86.
[358]Exhibit 2.01 p 88.
[359]Exhibit 2.01 p 114.
In William McEwans Pty Ltd v Brisbane City Council, His Honour Judge Carter explained:[360]
“Any zoning scheme must have as its basis the desire to so order land use as to best satisfy the needs and the physical well being of the community for whose benefit the zoning scheme is constructed. The enormously difficult task confronting the framers of a town planning scheme is to try to control land use in such a way that the needs of the community and its ability to enjoy life within that community are best served. This involves the subjection of the individual will to the overall good of the community, as it is perceived to be by those who frame, and by those who ultimately adopt, the scheme thereby giving it legal efficacy. The scheme, once it becomes law, must be seen to be an expression of the will of the community that its various needs are best provided for in the manner, by which the scheme controls the use to which land might be put. The scheme, in turn seeks to serve the need in the community for an agreeable residential amenity, the need to ensure adequate and suitably located land for heavy and light industry and for the manufacture and the retailing of consumer goods, the need for open space, the need for facilities for public purposes and so on. In respect of the scheme in its final form, the assumption is that these various needs are provided for in such a way that the physical well being of the total community is guaranteed.”[361]
[360][1981] QPLR 33.
[361]William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35.
Although these observations were made with respect to planning schemes prepared under an earlier legislative regime, they remain apposite. As such, once the proposed development is considered in the context of its compliance with the City Plan provisions referred to above, it is not difficult to conclude that a need for the proposed development has been comfortably demonstrated.[362]
[362]The significance of compliance with the planning scheme as demonstrative of need for a proposed development was similarly recognised in Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, 15; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 413 [469] and 419 [508]; and Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 325, 272 [185]-[186].
Leaving aside the need identified in City Plan, Mr Duane also gave evidence that there is a need for all components of the proposed development, including the commercial tenancies. He says that there is a need for commercial tenancies of 410 square metres on the subject land in place of the 700 square metres that will be removed in the redevelopment.
Mr Duane’s opinion is informed by the commitment from a proposed operator of an Italian restaurant, the population within the New Farm catchment, and an analysis of retail floorspace demand. As Mr Duane explains, there is a growing population within the New Farm catchment with a resultant increase in demand for retail floorspace. The redevelopment of the subject land will result in the loss of 700 square metres of retail and commercial floorspace. A reduction in floorspace in a market that is increasingly demanding retail floorspace provides a clear indication of the need for the proposed ground floor tenancies. Mr Duane also opines that there is a need to retain flexibility in the area designated for each tenancy so that the proposed development can accommodate a diverse range of tenants to meet market demand.[363] This is addressed in the proposed development in that it nominates an indicative location only for the inter-tenancy wall.
[363]Exhibit 4.04 pp 8-10.
The explanations provided by Mr Duane are cogent. I accept his evidence.
During cross-examination, Ms Meulman also recognised that there is evidence of a need for the proposed development. She accepted that the expression of interest from an operator of an Italian restaurant to occupy one of the ground-level commercial tenancies[364] is an indicator that there is a need for further uses of that kind at this location in New Farm.[365] She also acknowledged that the subject land is in a prominent position, being at the intersection of Brunswick Street and Merthyr Road, on a site that forms part of the commercial hub of New Farm where there is significant pedestrian activity.[366] In those circumstances, Ms Meulman accepts that it is in the public interest for the subject land to be used in a way that fulfils its economic potential.[367]
[364]Exhibit 8.02.
[365]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.
[366]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.
[367]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 31.
Ms Meulman also accepted that approval of the proposed development could provide meaningful economic benefits to the traders in the District centre. For example, parents who attend the subject land to collect their children might also fill a prescription at the chemist or grab groceries for dinner.[368] As such, it is reasonable to infer that the proposed development will, in this way, improve the ease and efficient lifestyle of the community.
[368]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 32.
Having regard to the evidence referred to above, which I accept, I am satisfied that there is a need for the proposed development in its entirety on the subject land. It will improve the ease, comfort, convenience, and efficient lifestyle of the community in a manner encouraged by City Plan. This is a relevant matter that lends support to approval of the proposed development.
What is the significance of the need to the exercise of the discretion?
The existence of a community need and an economic need for development is a matter of significance for development in the New Farm and Teneriffe Hill neighbourhood plan code. That is apparent from the overall outcome in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code, which states:
“m.Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”
As I have already found, the proposed development complies with this overall outcome because it is of a height, scale and form that is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct, and the subject land. As such, it is unnecessary to have resort to the proviso that permits greater height, scale, and form to establish compliance.
In those circumstances, the relevance of the existence of a need for the proposed development is not limited to the question of compliance with the assessment benchmarks. It a relevant matter to be considered under s 45(5)(b) of the Planning Act 2016. This was conceded by the Appellants, through their counsel Mr Wylie, during the hearing.[369]
[369]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 27 June 2022) 45-7.
The weight that should be attributed to the existence of a need in the exercise of the planning discretion was addressed by Mr Buckley. In his individual report, Mr Buckley opines that the need for the childcare centre should have the highest priority in the balancing exercise. He explains that the provision of appropriate facilities for the out-of-home care of children is an essential aspect of society. In his opinion, it is remarkable that, notwithstanding the demographic changes (including population growth) that have occurred across New Farm in the past 20 years, there is an obvious gap in the provision of childcare facilities in this suburb. Having regard to the growth in the number of childcare centres across South-east Queensland, including within the central business district and other inner suburbs, and the increase in the placement capacity of centres overall, Mr Buckley considers that the gap is an extraordinary planning phenomenon and is unacceptable.[370]
[370]Exhibit 4.03 p 3.
Mr Buckley opines that a benefit of a childcare centre being located on the subject land is the strong likelihood of regular walking access to the childcare centre by parents and guardians. He considers this benefit to be greater than that provided by the non-centre based and non-inner suburban based childcare facilities which predominate across Brisbane.[371]
[371]Exhibit 3.04 p 28.
In Mr Buckley’s opinion, the planning purpose behind the centre activities defined activity group of uses, which are encouraged in centres within City Plan, is to facilitate diverse centres and provide economic opportunities for owners to provide facilities that respond to identified needs. He says that the approval of the proposed development will assist in the achievement of this planning outcome.[372]
[372]Exhibit 4.03 p 3.
Mr Buckley opines that the community and economic need for the childcare centre component of the proposed development is strong. He also says that there is planning need for all the uses considering the zoning and use expectations of the subject land.[373]
[373]Exhibit 4.03 p 3.
Mr Buhmann agrees with Mr Buckley about the accessibility benefit associated with the location of the proposed development on the subject land. In addition, he opines that the whole New Farm district centre will benefit from the introduction of the childcare community use on the subject land. He explains that the proposed development will add diversity to the New Farm district centre and create a strong incentive for cross-utilisation of other centre services and shopping options.[374] Mr Buhmann’s evidence in this regard is supported by the evidence of Ms Meulman to which I refer in paragraph [376] above.[375] Mr Buhmann also opines that the benefits of fulfilling the need for a childcare centre as an “in-centre” development is relevant, as is the benefits derived from adding location diversity to childcare services. It provides additional choice to suit the lifestyle circumstances of New Farm residents.[376]
[374]Exhibit 3.04 p 28.
[375]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 28 June 2022) 32.
[376]Exhibit 3.04 p 28.
Neither Mr Buckley nor Mr Buhmann were challenged about these opinions. They each provide cogent explanations for their opinions. Mr Buckley’s opinions are also supported by provisions throughout City Plan that demonstrate the importance of providing community facilities, which include childcare centres.[377] Those provisions include those that I have identified in paragraphs [368] and [369] above.
[377]City Plan Table SC1.1.2.B—Defined activity groups: Exhibit 2.01 p 207.
During cross-examination, Mr Schomburgk accepted that provisions such as land use strategy L2.1 in Table 3.4.5.1 of the Strategic framework indicate that City Plan calls for a balance to be struck between the potential of adverse amenity impact on residential development caused by the development of community facilities and the community benefit to be derived from the provision of community facilities that will service the broader community.[378] City Plan does not prescribe how the balance is to be struck. Rather, provisions such as those identified demonstrate that City Plan provides a degree of flexibility to determine whether a development achieves the appropriate balance having regard to the individual situation that pertains in each case.
[378]Transcript of Proceedings, Jezreel Pty Ltd & Anor v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 2067 of 2021, Kefford DCJ, 29 June 2022) 81.
Having regard to the evidence referred to above, which I accept, I am satisfied that the need for the proposed development is a matter that weighs strongly in favour of its approval. It is a need that City Plan seeks to have fulfilled for the benefit of the community.
Should the development application be approved in the exercise of the planning discretion?

The appropriate approach to the exercise of the planning discretion is explained in paragraphs [6] to [10] above.
As I have found above, there is a substantial degree of compliance with the assessment benchmarks. The only non-compliance relates to the failure to provide deep planting in accordance with performance outcomes PO4 and PO5 of the Childcare centre code.
Each of the non-compliances tells against approval. That said, the Appellants do not contend that these non-compliances, by themselves, warrant refusal of the proposed development. I agree. As I have explained in paragraph [280] above, the weight to be attributed to these non-compliances is ameliorated to an extent because:
(a)the proposed landscaping outcome is a substantial improvement to that which exists at present, which could lawfully persist;[379]
(b)the proposed landscaping complements the character of the area;
(c)the design of the landscaping will enhance the public’s appreciation of a visual connection between built form and landscape; and
(d)by providing elevated planters immediately adjoining the outdoor playscapes, the proposed development will provide landscaping that can be appreciated by the children.
[379]The existing lawful use of the subject land is a matter to which I must have regard: Planning Act 2016 s 45(5)(a) and Planning Regulation 2017 s 31(f).
I must also have regard to those relevant matters that favour approval, each of which I have already identified in my reasons above. They include that the proposed development:
(a)involves land uses that are appropriate to, and intended for, the District centre zone and the relevant precinct and sub-precinct of the New Farm and Teneriffe Hill neighbourhood plan area in which the subject land is located;
(b)there is a need for a childcare centre with 121 places, as is proposed; and
(c)there is a need for the proposed development.
On balance, I am satisfied that the extent to which the proposed development does not comply with the assessment benchmarks should not stand in the way of an approval given:
(a)the matters that I have identified that temper the significance of the non-compliances; and
(b)the relevant matters that I have identified that support approval.
The proposed development delivers that which the City Plan identifies is needed for the community. It provides a new community facility in the New Farm district centre that is required to serve the needs of the local residents. It also delivers on the identified need for land in the District centre zone and the Brunswick Street and Merthyr Road sub-precinct of the Mixed use precinct in the New Farm and Teneriffe Hill neighbourhood plan area to provide a diverse range of centre activities, including a range of retailing and commercial uses. The proposed development provides a diverse range of centre activities in a building that complies with the height, bulk, scale, character, visual amenity, and interface requirements in City Plan. It does so without unacceptable amenity impacts, and while meeting City Plan’s carparking requirements. This is a matter of town planning importance favouring approval.
Overall, the proposed development is meritorious and should be approved, subject to the imposition of reasonable and relevant conditions.
Conclusion
The Co-respondents have discharged the onus.
In due course, the appeal will be dismissed, and the development application approved subject to conditions. To that end, I will adjourn the appeal for further review on 12 April 2023. I direct that the Council prepare a document that includes proposed conditions for that review and provide a copy to the other parties for their consideration in advance of the review.

CITATION:	Jezreel Pty Ltd & Anor v Brisbane City Council & Anor [2023] QPEC 7
PARTIES:	JEZREEL PTY LTD (ACN 010 455 973) (First Appellant) and MATTHEW SORBELLO (Second Appellant) v BRISBANE CITY COUNCIL (Respondent) and GRIFFITH CAPITAL PTY LTD (ACN 637 242 392) AND SUPADEED PTY LTD (ACN 608 395 320) (Co-respondents)
FILE NO/S:	2067 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	27 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	27 to 29 June and 1 July 2022, and 13 and 16 March 2023 and further submissions received on 17 and 20 March 2023
JUDGE:	Kefford DCJ
ORDER:	THE APPEAL IS ADJOURNED FOR FURTHER REVIEW ON 12 APRIL 2023.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where the Co-Respondents made a development application seeking a development permit for a material change of use – where the development application is for redevelopment of subject land at the intersection of Merthyr Road and Brunswick Street – where the proposed development is for centre activities comprising a childcare centre, food and drink outlet, office and shops – whether the height, bulk, scale and form of the proposed development is appropriate – whether the proposed development appropriately transitions to land in a lower density zone – whether there is an acceptable interface – whether the proposed development reflects New Farm’s character and style – whether the proposed landscaping outcome is appropriate for a childcare centre – whether the proposed development will result in adverse carparking impacts – whether there is a need for childcare facilities – whether the proposed re-use of the subject land for uses that accord with the planning intentions support approval – whether the subject land is well-suited for the proposed development
LEGISLATION:	Planning Act 2016 (Qld), ss 45, 59, 60 Planning and Environment Court Act 2016 (Qld), ss 43, 45, 47 Planning Regulation 2017 (Qld) s 31, sch 24
CASES:	Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved Barro Group Pty Ltd v Sunshine Coast Regional Council [2022] QPELR 325, approved Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, approved Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved Northern Properties Pty Ltd v Brisbane City Council & Anor [2019] QPEC 66; [2020] QPELR 877, approved Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, approved SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39, approved Sellars Holdings Ltd v Pine Rivers Shire Council [1988] QPLR 12, approved Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, cited Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
COUNSEL:	K Wylie for the First and Second Appellant K Buckley for the Respondent M Batty and R Yuen for the Co-Respondents
SOLICITORS:	Bennett & Philp Lawyers for the First and Second Appellant City Legal for the Respondent Connor O’Meara for the Co-Respondents