JRD No 2 Pty Ltd v Brisbane City Council & Ors
[2020] QPEC 4
•25 February 2020
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4
PARTIES:
JRD NO 2 PTY LTD ACN 618 080 309 AS TRUSTEE FOR THE JRD NO 2 PROPERTY TRUST
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)AND
AGAMPODIGE PERMASIRI WEERASEKARA
(Fifth Co-Respondent by Election)AND
SHANE HOWARD
(Seventh Co-Respondent by Election)AND
LISA ROBINSON
(Eighth Co-Respondent by Election)AND
PHILIP MOSS
(Ninth Co-Respondent by Election)AND
JAVIER PAEZ
(Tenth Co-Respondent by Election)AND
SILVIU RISCO
(Eleventh Co-Respondent by Election)FILE NO/S:
2832 of 2018
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
25 February 2020
DELIVERED AT:
Brisbane
HEARING DATE:
23 – 27 and 30 September 2019 and 15 November 2019 and further documents received on 18 November 2019
JUDGE:
Kefford DCJ
ORDER:
I order:
(a) by 4pm on 11 March 2020, the Respondent is to deliver a draft suite of conditions to the other parties; and
(b) the appeal be listed for review at 9.15 am on 18 March 2020 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a retirement facility in a Low density residential zone – whether the proposed development is of an appropriate height – whether there is inconsistency between a zone code and neighbourhood plan code and, if so, which prevails – whether there is conflict occasioned by bulk, scale, form and intensity – whether there is a need for the proposed development
LEGISLATION:
Planning Act 2016 (Qld), s 45, s 59, s 60
Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47
CASES:
AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied
Ausco Modular Pty Ltd v Western Downs Regional Council [2017] QPEC 58; [2018] QPELR 80, approved
Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135, applied
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved
Bell v Brisbane City Council & Anor [2018] QCA 84; (2018) 230 LGERA 374, followed
Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311, approved
Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34; [2018] QPELR 1102, approved
Intrafield Pty Ltd v Redland City Council [2001] QCA 116; (2001) 116 LGERA 350, followed
Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved
Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, applied
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46, approved
Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652, cited
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied
Reseck v Federal Commissioner of Taxation [1975] HCA 38; [1975] 133 CLR 45, cited
Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3; [2019] QPELR 487, approved
Zappala v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:
C L Hughes QC and M Batty for the Appellant
R Traves QC and N Loos for the RespondentSOLICITORS:
Broadly Rees Hogan for the Appellants
Brisbane City Legal Practice for the Respondent
No appearance for the Fifth and Tenth Co-Respondents by Election
Each of the Seventh, Eighth, Ninth and Eleventh Co-Respondents by Election were self representedTABLE OF CONTENTS
Introduction........................................................................................................................... 5
The decision framework....................................................................................................... 6
What are the relevant assessment benchmarks?................................................................... 7
What assessment benchmarks does the Council rely on to contend for refusal?................. 8
Is the proposed development of an appropriate height?....................................................... 9
What does the Forest Lake Neighbourhood plan code require?....................................... 9
Does overall outcome (5)(a) support approval of the proposed development?.............. 10
Does overall outcome (5)(b) support approval of the proposed development?.............. 11
Do overall outcomes (3)(a) and (b) support approval of the proposed development?... 12
How is the tension between overall outcome (4)(d) of the Low density residential zone code and the Forest Lake neighbourhood plan code resolved?....................................................................... 13
Conclusion regarding the appropriateness of the height................................................. 19
Is the proposed development of an appropriate bulk, scale, form, and intensity having regard to the character, location, and street context of the subject land?................................................................. 19
Does the proposed development comply with overall outcome (2)(e) of the Multiple dwelling code? 19
What is the existing neighbourhood structure and the relevant location and street context of the subject land?................................................................................................................................ 20
What is the intended neighbourhood structure?............................................................. 22
What was the evidence about the appropriateness of the proposed development in terms of neighbourhood structure, location and street context?............................................................................ 24
Is the proposed development appropriate having regard to the neighbourhood structure, location and street context?........................................................................................................................... 29
Does the proposed development comply with overall outcome (2)(i) of the Multiple dwelling code? 35
Does the proposed development comply with performance outcome PO6 of the Multiple dwelling code?......................................................................................................................................... 38
Conclusion regarding the proposed development’s bulk, scale, form, and intensity..... 39
Does the proposed development comply with overall outcome (3)(d) of the Forest Lake neighbourhood plan code?................................................................................................................................... 39
Is the proposed development consistent with the most recent planning for the area?........ 40
Does the proposed development comply with overall outcome (2)(c) of the Retirement and residential care facility code?................................................................................................................... 41
Does the proposed development comply with overall outcome (2)(j) of the Retirement and residential care facility code?................................................................................................................... 41
Does the proposed development comply with performance outcome PO5(a) of the Retirement and residential care facility code?.......................................................................................... 43
Does the proposed development comply with performance outcome PO8(a) of the Retirement and residential care facility code?.......................................................................................... 44
Does the proposed development comply with overall outcome (4)(d) of the Low density residential zone code?............................................................................................................................... 46
Conclusion regarding whether the proposed development is consistent with the most recent planning for the area.................................................................................................................................. 46
What are the relevant matters that JRD rely on to support approval of the proposed development? 49
Is there an economic, town planning and community need for the proposed development sufficient to support approval of the proposed development?............................................................................. 49
Is there a need for the proposed development?............................................................... 50
Relevance of need........................................................................................................... 58
Do the other relevant matters support approval?................................................................ 59
Should the development application for the proposed development be approved in the exercise of the planning discretion?........................................................................................................................... 59
Conclusion.......................................................................................................................... 61
Introduction
The land at 5 The Esplanade, Forest Lake (“the subject land”) sits vacant. In the past, a two-storey building and associated structures on the subject land provided an accommodation facility for the nearby Forest Lake International College. Historically, other non-residential uses, including sales office and education facility, have also occurred on the subject land.
The subject land is within the District business centre precinct in the Forest Lake neighbourhood plan under Brisbane City Plan 2014 (“City Plan”). That precinct comprises an area of land bounded by Forest Lake and the open space that immediately adjoins the lake, and the four lane divided carriageways of Forest Lake Boulevard and Grand Avenue.
The precinct includes two lots in the Low density residential zone. They are the subject land and the adjoining land to the east. The adjoining lot to the east is located on the corner of The Esplanade and Forest Lake Boulevard. It is improved by a two-storey commercial development that contains a vet, professional offices, and a food and drink outlet.
The Forest Lake Shopping Centre and other land immediately adjacent the shopping centre is also in the District business centre precinct. That land is in the District Centre zone.
The precinct otherwise comprises all of the land that is north and west of the shopping centre and which is in the Medium density residential zone. That land contains large houses of two storeys on individual lots. Redevelopment of the precinct for medium density residential uses, as encouraged by City Plan, is yet to occur.
JRD No 2 Pty Ltd (“JRD”) wants to develop the subject land for a retirement facility containing 30 independent living units across six habitable levels. It made a development application to facilitate that. Brisbane City Council (“the Council”) refused the application. The Council contends that the proposed development would be a radical and inappropriate departure from the current character of the area and should not be approved.
The Seventh, Eighth, Ninth and Eleventh Co-Respondents by Election are residents of Forest Lake. They support the Council’s position. There was no appearance for the Fifth and Tenth Co-Respondents by Election.
The issues for me to decide are:
(a) whether the proposed development complies with the assessment benchmarks that applied at the time the application was made, particularly with respect to its height, bulk, scale, form and intensity;
(b) whether the proposed development is consistent with the most recent assessment benchmarks;
(c) whether there are relevant matters that support approval of the proposed development; and
(d) ultimately, whether, in the exercise of the planning discretion, the development application for the proposed development should be approved.
The decision framework
The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies. In deciding the appeal, the Court must 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 Council with directions the Court considers appropriate.[1]
[1]Planning and Environment Court Act 2016, s 47.
The appeal proceeds by way of hearing anew.[2] JRD bears the onus.[3]
[2]Planning and Environment Court Act 2016, s 43.
[3]Planning and Environment Court Act 2016, s 45.
JRD seeks a development permit to authorise it to carry out a material change of use of the subject land from its presently vacant state to use for the proposed retirement facility. The proposed development is to comprise 30 independent living units generally in accordance with the design reflected in the plans provided as Exhibit 3.
There is a broad discretion in determining this appeal.[4] The exercise of the discretion must be based on an assessment that:[5]
[4]Planning and Environment Court Act 2016 (Qld), s 47; Planning Act 2016, s 60(3).
[5]Planning Act 2016, s 59 and s 45(5).
(a) must be carried out:
(i) against the assessment benchmarks in the City Plan version 9 to the extent relevant;[6]
[6]It is common ground that version 9 of Brisbane City Plan 2014 was the categorising instrument for the development in effect when JRD’s application was properly made.
(ii) having regard to, relevantly, any development approval for, and any lawful use of, the premises or adjacent premises;
(b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise);
(c) may give weight considered appropriate in the circumstances to City Plan version 16.
It was common ground between the parties that His Honour Judge Williamson QC comprehensively, and correctly, analysed how impact assessable development applications are to be assessed and decided in Ashvan Investments Unit Trust v Brisbane City Council[7]. I agree. I have also further considered the approach in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[8]
[7][2019] QPEC 16, [35]-[86].
[8][2019] QPEC 46, [12]-[22].
What are the relevant assessment benchmarks?
Like many planning schemes that apply throughout Queensland, City Plan is a voluminous document. It comprises numerous components, including a strategic framework; zones and precincts (with associated zone codes); neighbourhood plans and neighbourhood plan precincts and sub-precincts (with associated neighbourhood plan codes); mapping overlays and overlay codes; relevant prescribed codes as specified in the schedules of the Planning Regulation 2017; and use and other development codes. Each of these components contains provisions that may form part of the assessment benchmarks for a particular development application.
The combination of assessment benchmarks that applies to development of any particular parcel of land can vary significantly. This is so even where the development applications are in the same locality or where they are for the same type of development but in different localities. Under City Plan, the integers that inform the combination of assessment benchmarks that apply to any particular proposed development are:
(a) the type of development sought, i.e. whether the application is for carrying out building work, carrying out operational work, reconfiguring a lot or making a material change of use of premises;
(b) the category of development, i.e. whether the application is for accepted development or assessable development;
(c) the category of assessment, i.e. whether the application is code assessable or impact assessable;
(d) the zone and, if applicable, the precinct of the zone in which the land is located;
(e) whether the land is located in a particular neighbourhood plan area and a precinct or sub-precinct of a neighbourhood plan area;
(f) whether the land is affected by one or more overlays, such as a biodiversity areas overlay; and
(g) the types of uses and works involved.
Here, the land is located in the Low density residential zone under City Plan.[9] An application for material change of use for a retirement facility is impact assessable. It is to be assessed against the entire planning scheme, to the extent relevant.[10] This includes relevant assessment benchmarks in:
[9]Any reference to City Plan in these Reasons for Judgment should be understood to be a reference to City Plan 2014 version 9 unless expressly stated otherwise or unless otherwise apparent from the context.
[10]See s 5.3.3(5) of City Plan.
(a) the Strategic framework;
(b) the Low density residential zone code;
(c) the Forest Lake neighbourhood plan code, including any relevant to the District business centre precinct (Forest Lake neighbourhood plan/NPP-002) in which the subject land is located;
(d) the Multiple dwelling code;
(e) the Stormwater code; and
(f) the Transport, access, parking and servicing code.
In this case, it is unnecessary to consider all of these assessment benchmarks as the parties accept that whether the development is appropriate turns on a much more confined consideration of the assessment benchmarks.
What assessment benchmarks does the Council rely on to contend for refusal?
The Council alleges that JRD’s proposed development does not comply with provisions of City Plan that guide the height, scale, form, and intensity of retirement facilities on the subject land. By the end of the hearing,[11] the Council’s allegations were limited to non-compliance with overall outcome (4)(d) of the Low density residential zone code, overall outcome (3)(d) of the Forest Lake neighbourhood plan code, and overall outcomes (2)(e) and (i) and performance outcome PO6 of the Multiple dwelling code.[12] Although the Co-respondents by Election addressed a more extensive list of provisions in their written submissions, they confirmed that the only allegations of non-compliance they maintain are those relied on by the Council.
[11]While the issues were confined by the end of the hearing, the evidence addressed a more extensive suite of planning scheme provisions. On 5 April 2019, the Council provided amended grounds of refusal in which it identified 72 provisions of City Plan as relevant assessment benchmarks. These were maintained until after the appeal was listed for hearing. The town planners addressed the extensive list of planning scheme provisions in the Joint Expert Report – Town Planning. JRD also retained an economist, a retirement and aged care specialist, a visual amenity expert, an architecture and landscape expert, a traffic engineer, a stormwater expert, and an expert on noise and wind impacts to address the assessment benchmarks relied on by the Council. Each of those experts prepared a report to address the issues raised by the Council. Ultimately, it was not necessary to receive the reports of the stormwater expert or the expert on noise and wind impacts and they were not required for cross-examination. The expert reports on traffic were also not relevant in the end. This is because, shortly prior to the commencement of the hearing, the Council amended its list of issues to reduce the number of provisions it identified as relevant. Nevertheless, the Court was burdened with extensive town planning and architectural reports that extended far beyond the real issues requiring determination. The number of days allocated to the hearing also reflected the more extensive issues maintained by the Council until close to the start of the trial
[12]After the appeal was set down for hearing, the Council amended its issues several times. It did so following reviews of the matter on 6 September 2019 and 17 September 2019. The Council again amended its position at the commencement of the hearing on 23 September 2019, during oral submissions on 30 September 2019 and in a further document provided on 18 November 2019. It is appropriate that the Council ultimately relied on only those issues that reflected the real issues in dispute. It is regrettable that it did not adopt such an approach sooner. This is particularly so given some of the Council’s allegations were not arguable, such as its allegation that the proposed five-storey building conflicted with a provision (performance outcome PO16 of the Multiple dwelling code) that applied only to an eight-storey building.
As is evident from the Council’s final particularised list of issues for determination,[13] the Council’s position that the proposed development is an inappropriate height, bulk, scale, form, and intensity is underpinned by three fundamental propositions. First, the Low density residential zone code stipulates a height of one or two storeys for a retirement village in that zone. The Council says that reflects the intended height and intensity of development for the subject land, even taking account of the Forest Lake neighbourhood plan code. Second, the proposed development is not of an appropriate bulk, scale, form and intensity as it is not consistent with the existing character, location and street context of the subject land. The Council says the proposed development does not accord with the present two-storey character of the area, which it says is of paramount importance given the absence of any redevelopment of the area. Third, there is no demonstrated community need and economic need for the proposed development that would permit greater height than that stipulated in the Low density residential zone code.
[13]Exhibit 37.
JRD does not accept that the intended height, scale and form of development on its land is limited to two storeys, nor that it is necessary to demonstrate both a community need and an economic need for the development to justify the additional height over two storeys. JRD also contends that there is, in any event, a demonstrated community need and economic need for the development.
The assessment benchmarks call for consideration of three issues, namely:
(a) whether the proposed development is of an appropriate height;
(b) whether the proposed development is appropriate having regard to considerations of character, location and street context; and
(c) whether it is necessary to demonstrate community need and economic need for the proposed development.
Is the proposed development of an appropriate height?
The Council contends that the intended height and intensity of development for the land is stipulated by overall outcome (4)(d) of the Low density residential zone code. It states:
“Development for other housing types, being a residential care facility or retirement facility, which provides housing diversity and enables people to remain within their local neighbourhood throughout their life cycle, may be accommodated at appropriate locations where height is no greater than 1 or 2 storeys.”
It is the Council’s position that this provision justifies refusal of the proposed development. That has initial attraction given the proposed development is for a retirement facility of five storeys[14] in the Low density residential zone. However, closer consideration reveals that reference only to those provisions relied on by the Council presents a distorted picture of the requirements of City Plan with respect to the appropriate height, scale, form, and intensity of any development on the subject land. The assessment benchmarks relied on by the Council do not include relevant provisions of the Forest Lake neighbourhood plan code.[15]
[14]By definition, although there are six habitable levels.
[15]See s 7.2.6.3.1 and the note that follows it.
What does the Forest Lake Neighbourhood plan code require?
The subject land is in the District business precinct (Forest Lake neighbourhood plan/NPP-002) of the Forest Lake neighbourhood plan area.
The Forest Lake neighbourhood plan code contains two overall outcomes that apply specifically to the District business centre precinct, namely overall outcomes (5)(a) and (b). They state:[16]
“(a)Development provides for a multipurpose centre and medium density residential development.
(b)Adjacent to the lake and at the periphery of the precinct, development for medium density residential development is encouraged which is intended to accommodate housing at a higher density than that provided for within the Residential precinct in order to promote efficiency in terms of access to centre facilities and public transport services and optimise lakefront views.”
[16]See s 7.2.6.3.2(5) of the Forest Lake neighbourhood plan code.
The Forest Lake neighbourhood plan code also contains overall outcomes that are of general application throughout the neighbourhood plan area, including overall outcomes (3)(a), (b) and (d) of the Forest Lake neighbourhood plan code.[17] They state:
“(a)The urban structure uses land efficiently and provides high levels of pedestrian, bicycle and vehicle accessibility to shopping and commercial facilities, open space, recreational opportunities and community facilities.
(b)A comprehensive range of housing types and lots is available to meet the needs of a wide cross-section of the population.
…
(d)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.”
[17]See s 7.2.6.3.2(3) of the Forest Lake neighbourhood plan code.
The Council alleges the proposed development does not comply with overall outcome (3)(d). It otherwise placed no weight on the overall outcomes of the Forest Lake neighbourhood plan code. It resists JRD’s case that these provisions are supportive of approval of the proposed development.
Does overall outcome (5)(a) support approval of the proposed development?
JRD contends that overall outcome (5)(a) of the Forest Lake neighbourhood plan code supports approval of the proposed development. The Council disagrees. The Council accepts that the proposed development would provide for medium density residential development. However, it submits overall outcome (5)(a) recognises the predominant, not the exclusive, purpose for land within the precinct.
The Court of Appeal confirmed in Zappala v Brisbane City Council[18] and AAD Design Pty Ltd v Brisbane City Council[19] that the established principles and canons of statutory construction apply to the construction of planning documents. As was recognised by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council,[20] it is not unduly pedantic to begin with an assumption that words mean what they say.
[18][2014] QCA 147; [2014] QPELR 686, 698 [52].
[19][2012] QCA 44; [2013] 1 Qd R 1, 19 [73].
[20][2012] QCA 44; [2013] 1 Qd R 1, 1-2 [37], citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304-5.
Here, overall outcome (5)(a) of the Forest Lake neighbourhood plan code requires development in the District business centre precinct to provide for multipurpose centre and medium density residential development. There is no reference to low density residential development. A literal reading of the provision supports approval of the proposed development.
The expressed requirement to develop land in the precinct for the higher intensity uses of multipurpose centre and medium density residential development is also consistent with the planning goal associated with efficient use of land contained in overall outcome (3)(a) of the Forest Lake neighbourhood plan code.[21] That overall outcome reflects a policy position that it is not desirable, from a planning perspective, to permit underutilisation of land in the District business centre precinct.
[21]My site inspection of the area with the representatives for the parties on the first day of the hearing assisted me to appreciate the evidence of the town planners and Figure 2 of the Joint Expert Report – Town Planning about the high level of accessibility enjoyed by the land in this District business centre precinct.
Performance outcome PO1 of the Forest Lake neighbourhood plan code also supports a construction that overall outcome (5)(a) requires land in the District business precinct to be developed for medium density residential development.[22] Performance outcome PO1 applies to the neighbourhood plan area generally. It requires development to be of a height, scale and form that achieves the intended outcome for the precinct. As I have already mentioned, there is no suggestion in the overall outcomes that low density residential development is an intended outcome for the District business centre precinct. To the contrary, the intended outcome is a multipurpose centre and medium density residential development.
[22]The corresponding acceptable outcome AO1 does not apply as it only stipulates a building height for land in the Medium density residential zone.
For the reasons provided, I am satisfied that overall outcome (5)(a) of the Forest Lake neighbourhood plan code supports approval of the proposed development.
Does overall outcome (5)(b) support approval of the proposed development?
JRD contends that overall outcome (5)(b) of the Forest Lake neighbourhood plan code is supportive of the proposed development. The Council disputes this.
As I have already mentioned, the Council accepts that the proposed development involves medium density residential development. It also accepts that the subject land is adjacent to the lake and at the periphery of the precinct, and that the proposed development would “promote efficiency in terms of access to centre facilities and public transport services and optimise lakefront views.” The town planners agree that the subject land is located approximately 330 metres from the entrance to the Forest Lake shopping centre. Public transport to the Brisbane central business district is available from a bus stop approximately 400 metres from the subject land. As such, were overall outcome (5)(b) given its plain meaning, it supports approval of the proposed development.
The Council says that, properly construed, the provision only applies to that land to the west of the subject land that is along the lake’s edge. It says acceptable outcome AO8.2 makes it clear which lots are intended for more intense development. Acceptable outcome AO8.2 envisages that some land located around the lake that is in both the District business centre precinct and the Medium density residential zone may be able to be used for high density residential uses. That is not demonstrative of a legislative intent that the plain words of overall outcome (5)(b) should be read down so as to only apply to land at the lake’s edge that is in the Medium density residential zone. The planning goal is to encourage higher density[23] than that intended within the residential precinct. Medium density residential development would achieve that goal.[24] The potential for land that is in both the District business centre precinct and the Medium density residential zone to achieve an even higher density is consistent with overall outcome (5)(b) and acceptable outcome AO8.2. However, it is not necessary to read down the effect of overall outcome (5)(b) to give effect to acceptable outcome AO8.2, nor to avoid an inconsistency between them.
[23]But not necessarily at a “high density”.
[24]See those provisions that specifically relate to the Residential precinct, including overall outcome (4)(a) and performance outcomes PO3 to PO5.
For the reasons provided above, I am satisfied that overall outcome (5)(b) of the Forest Lake neighbourhood plan code supports approval of the proposed development.
Do overall outcomes (3)(a) and (b) support approval of the proposed development?
Overall outcomes (3)(a) and (5)(a) and (b) indicate an intention by the local planning authority to intervene and change the structure of development occurring in the neighbourhood plan area on land that has high levels of accessibility to shopping and commercial facilities, open space, recreational opportunities and community facilities. I accept the evidence of Mr Buckley, the town planner retained by JRD, that the planning goals in these overall outcomes are consistent with the imperatives and drivers for land use structure that come from the State government. They demonstrate that Brisbane, as a planning authority, has embraced the State’s approach.
These overall outcomes are supportive of the proposed development. I accept the evidence of the town planners that the proposed development would involve an efficient use of land by providing a more intensive form of development on land that has a high level of accessibility to the Forest Lake Shopping Centre, Forest Lake itself and the associated recreational facilities. It is certainly a more efficient use of land than the predominant form of development encouraged in the Low density residential zone, being a single dwelling house.[25]
[25]See s 6.2.1.1(4)(a) of the Forest Lake neighbourhood plan code. This is a provision that the Council initially relied on in support of its decision to refuse the proposed development.
Further, for reasons that I will address in more detail later, the proposed development would meet a need for further accommodation to be provided for senior members of the community. As such, its approval is supported by overall outcome (3)(b) of the Forest Lake neighbourhood plan code.
The issue of compliance with overall outcome (3)(d) of the Forest Lake neighbourhood plan code requires consideration of broader issues of amenity, character impacts and community expectations. I will deal with it later when considering those issues.
How is the tension between overall outcome (4)(d) of the Low density residential zone code and the Forest Lake neighbourhood plan code resolved?
There is a tension between the provisions of the Forest Lake neighbourhood plan code and overall outcome (4)(d) of the Low density residential zone code in their application to the subject land. A retirement facility of no greater than two storeys on the subject land would satisfy overall outcome (4)(d) of the Low density residential zone code but would not comply with the requirements of the Forest Lake neighbourhood plan code.
The proper approach to the resolution of potential inconsistency (or conflict) within a statute was considered in Project Blue Sky Inc v Australian Broadcasting Authority.[26] McHugh, Gummow, Kirby and Hayne JJ said:
[26][1998] HCA 28; (1998) 194 CLR 355, 381-2.
“Conflicting statutory provisions should be reconciled so far as is possible
[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.”
(footnotes omitted)
The authorities cited by their Honours included Australian Alliance Assurance Co Ltd v Attorney-General of Queensland,[27] where Cooper CJ of the Full Court of the Supreme Court of Queensland said:
“… I think I am bound by the well-recognized rule of construction which this Court followed in The King v. The Licensing Justices of Nanango, Ex parte Watson—viz., that the sections of a statute must be construed so as to make the statute a consistent and harmonious whole; and, “if after all, it turns out that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail”.”
(footnotes omitted)
[27][1916] St R Qd 135, 161.
Their Honours also referred to Minister for Resources v Dover Fisheries Pty Ltd,[28] where Gummow J said:
“…In dealing with an apparent conundrum such as that presented by par (a) in O 79 and O 80, the Court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In AMP Inc v Utilux Pty Ltd [1972] RPC 103 at 109, Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.”
[28](1993) 43 FCR 565, 574.
The Council submits that consistent with these orthodox principles, this Court should attempt to read the Low density residential zone code together with the Forest Lake neighbourhood plan code. It says such an approach would assume, as a matter of principle, that overall outcome 5(a) of the Forest Lake neighbourhood plan code was promulgated with knowledge of the zoning within the precinct. The Council submits that it follows that the Court should not conclude that the requirement for development to provide for “multipurpose centre and medium density residential development” is to the exclusion of low density residential development. The Council says the overall outcome should be construed as recognising the predominant, although not exclusive, purpose for land within the precinct. The Council’s construction would involve reading the word “predominantly” into the provision.
Assuming the Forest Lake neighbourhood plan code was promulgated with knowledge of the zoning within the precinct, it does not follow that the word “predominantly” should be read into overall outcome (5)(a). Reference to other provisions in City Plan do not support this approach. To the contrary, it shows the City Plan expressly includes the word “predominantly” where the planning strategy calls for a predominance only of a particular intensity of development.[29] I also do not accept the Council’s submissions for the reasons provided in paragraphs [29] to [32] above.
[29]See, for example, overall outcome (4)(a) of the Low density residential zone code.
The Council further submits that unless overall outcome (5)(a) is construed as calling only for a predominance of medium density residential development, no effect would be given to the Low density residential zoning for the subject land. I do not accept this as a basis for adopting the Council’s construction for six reasons.
First, as I noted in paragraph [15] above, the combination of assessment benchmarks that applies to development of any particular parcel of land can vary significantly. There are only two parcels of land that are both in the Low density residential zone and the District business centre precinct of the Forest Lake neighbourhood plan area. They are the subject land and the adjoining land. The adjoining land is already developed for a multipurpose centre.
Second, as Mr Buckley explained, Brisbane has many layers of planning and sometimes there is inherent tension between the layers. In town planning practice, it is an appropriate planning outcome to take the neighbourhood plan as providing a strong indication of the intended planning outcome. Mr Buckley says such an approach is consistent with the general town planning principle that specific analysis for a particular area should prevail over general provisions that apply across the whole city. That approach is also consistent with a practical reading of City Plan. In terms of the practicalities of promulgation of planning schemes, Mr Buckley explained that even where a neighbourhood plan is promulgated with knowledge of an inconsistent underlying zone, it is not unusual for isolated parcels of land to be maintained in that zone, particularly for a planning entity the size of Brisbane. I accept the evidence of Mr Buckley and consider it relevant to this issue. As was noted by Morrison JA in Zappala v Brisbane City Council:[30]
“The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.”
[30][2014] QCA 147; [2014] QPELR 686, 700 [56] citing Westfield Management Ltd v Pine Rivers Shire Council [2005] QPEC 15; [2004] QPELR 337, 342.
Third, Mr Buckley’s practical approach to the reading of City Plan is supported by a reading of City Plan as a whole. Section 7.1(1) of City Plan explains that Neighbourhood plans “address matters at the local or district level and may provide more detailed planning for the zones.” In the Forest Lake neighbourhood plan, s 7.2.6.3.2(1) confirms that this particular neighbourhood plan provides finer-grained planning at a local level for the Forest Lake district neighbourhood plan area. As such, the planning outcomes recorded in the Forest Lake neighbourhood plan code represent a closer consideration of the intended planning outcomes for the locality than that provided by the applicable zone codes. Both Mr Buckley and Mr Gaskell (the town planner retained by the Council) acknowledge this.
The more refined planning is evident in:
(a) the Forest Lake neighbourhood plan map, which divides the neighbourhood plan area into one of four precincts, namely:
(i) the Residential precinct (Forest Lake neighbourhood plan/NPP-001);
(ii) the District business centre precinct (Forest Lake neighbourhood plan/NPP-002);
(iii) the Blunder Creek environmental and open space precinct (Forest Lake neighbourhood plan/NPP-003); and
(iv) the Parkland lots precinct (Forest Lake neighbourhood plan/NPP-004);
(b) the identification of particular points of interest on the Forest Lake neighbourhood plan map;
(c) the overall outcomes, which includes some overall outcomes that apply to the neighbourhood plan area generally,[31] as well as distinct overall outcomes for each precinct;[32] and
(d) Table 7.2.6.3.3.A – Performance outcomes and acceptable outcomes, which includes performance outcomes and acceptable outcomes that are of general application to land in the neighbourhood plan area,[33] as well as some performance outcomes that apply to particular precincts,[34] or even particularly zoned land in a particular precinct.[35]
[31]See s 7.2.6.3.2(3) of City Plan.
[32]See s 7.2.6.3.2(4), (5), (6) and (7) of City Plan.
[33]See performance outcomes PO1 and PO2 and the corresponding acceptable outcomes.
[34]See, for example, performance outcomes PO3 to PO5 and the corresponding acceptable outcomes.
[35]See, performance outcomes PO6 and PO7 and corresponding acceptable outcomes, which only apply to development in the District business centre precinct that is also in the centre zones category or the Mixed use zone and performance outcome PO8 and corresponding acceptable outcomes, which only apply to development in the District business centre precinct that is also in the Medium density residential zone.
Section 7.2.6.3.1 of City Plan explains the application of the Forest Lake neighbourhood plan code. In particular, s 7.2.6.3.1(3) states that when using the code, reference should be made to s 1.5, s 5.3.2 and s 5.3.3 of City Plan.
Section 1.5 of City Plan states:
“Where there is inconsistency between provisions in the planning scheme, the following rules apply:
(a)the strategic framework prevails over all other components, to the extent of the inconsistency for impact assessment;
(b)relevant codes as specified in Schedules 6 and 10 of the Regulation prevail over all other components, to the extent of the inconsistency;
(c)overlays prevail over all other components (other than the matters mentioned in (a) and (b), to the extent of the inconsistency;
(d)neighbourhood plan codes prevail over zone codes, use codes and other development codes, to the extent of the inconsistency;
(e)zone codes prevail over use codes and other development codes, to the extent of the inconsistency;
(f)provisions of Part 10 may override any of the above.”
(emphasis added)
Given the innumerable potential combinations of assessment benchmarks that could apply to development throughout Brisbane depending on the nature of the development and its locality, s 1.5 of City Plan recognises the potential for inconsistencies between provisions in City Plan. It prescribes how any such inconsistency is to be resolved. The prospect of inconsistency between neighbourhood plans and zones is also recognised in s 5.3.2(8) of City Plan, which stipulates that a category of development or assessment in a neighbourhood plan overrides a category of development or assessment in a zone. Further, that neighbourhood plan codes prevail over zone codes is explicable given they provide more detailed planning for the particular parts of the city to which they apply.
Fourth, I do not accept the Council’s submission that a finding that overall outcome (5)(a) of the Forest Lake neighbourhood plan is supportive of the proposed development would involve giving no effect to the Low density residential zoning for the subject land. There are other provisions of the Low density residential zone code that still have application, such as overall outcome (5)(f). That overall outcome requires development to respond to land constraints, mitigate any adverse impact on environmental values and address other specific characteristics, as identified by overlays affecting the site or in codes applicable to the development. Overall outcome (3)(d) of the Low density residential zone code will also continue to have application to the many other parcels of land in the Low density residential zone that are not otherwise in the District business centre precinct of the Forest Lake neighbourhood plan area.
Fifth, I accept the Council’s submission that the cannon of construction that provisions of general application give way to specific provisions when in conflict should only be called in aid “where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation”[36] or “where contrariety is manifest”.[37] Here, giving effect to s 1.5 of City Plan and the other provisions that expressly recognise the primacy of the neighbourhood plans over zones does not involve the application of the general maxim. Rather, it involves giving effect to the words of City Plan itself.
[36]Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652, 657.
[37]Reseck v Federal Commissioner of Taxation [1975] HCA 38; [1975] 133 CLR 45, 53.
Sixth, I do not accept that, as a matter of ordinary interpretation, the planning goal reflected in overall outcome (4)(d) of the Low density residential zone code can be reconciled with that in overall outcome (5)(a) of the Forest Lake neighbourhood plan code (and the other provisions of that code such as overall outcome (3)(a) and performance outcome PO1). This is particularly so if, as the Council submits, its effect is to be taken as setting a development intensity for the subject land that is consistent only with the land’s Low density residential zoning.[38] The effect of that approach is to give no effect to the mapping of the land as within the District business centre precinct.[39] That approach is unattractive, particularly given City Plan recognises the potential for inconsistent provisions and stipulates how to resolve such inconsistencies.[40] The Council’s approach would also suggest that overall outcome (3)(a) of the Forest Lake neighbourhood plan code would have little, if any, operation for the subject land.
[38]The Council did proffer an alternative position, namely one that would permit three-storey development. The basis for that position appears to be no more than an approach that splits the difference.
[39]It is hard to accept the mapping is inadvertent given there is other land in the Low density residential zone in the discrete area bounded by Forest Lake Boulevard, Grand Avenue and The Esplanade that is equally proximate to Forest Lake Shopping Centre but which was included in the Residential precinct rather than the District business centre precinct. These are the seven lots on Catalina Circuit that are in the Low density residential zone.
[40]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [70].
The Council advances an alternative position that the building height of residential development on the subject land should be limited to three storeys. It relies on the approach taken by Mr Gaskell in this respect, which it submits purports to give effect both to the designation of the land in the District business centre precinct and to its Low density residential zoning. Mr Gaskell reasons:
(a) the Medium density residential zone code includes building heights between three and five storeys (based on overall outcome (5)(b) in section 6.2.1.3 of the Medium density residential zone code);
(b) where land is included within the Medium density residential zone, the height of development is affected by acceptable outcome AO1 of the Forest Lake neighbourhood plan code, which provides for a height of four storeys;
(c) the “Residential precinct” referred to in overall outcome (5)(b) of the Forest Lake neighbourhood plan code is Residential precinct NPP-001 (being land predominantly included in the Low density residential zone); and
(d) in effect, the height for development for the subject land, in the Low density residential zone and unaffected by the effect of acceptable outcome AO1, should be read at the lower end of the three to five storey medium density residential height range, i.e. as intending development of three storeys.
I do not accept Mr Gaskell’s approach. It appears to involve little more than a numerical compromise. It places significant reliance on acceptable outcome AO1 of the Forest Lake neighbourhood plan code. This ignores that, as the Council conceded in oral submissions, there is no obligation for any development to comply with the acceptable outcome. Mr Gaskell’s approach also ignores the provisions of City Plan referred to in paragraphs [51], [53] and [54] above.
The Council further submits that its construction would give effect to overall outcome 3(d) of the Forest Lake neighbourhood plan code. That provision states:
“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-precincts 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.”
The provision is of general application to all land in the Forest Lake neighbourhood plan area. It does not indicate that the development of the subject land is to be of a particular height and intensity. Rather, it contemplates that the intended height, scale, and form of development will be ascertained by reference to provisions specific to the relevant precinct that the land is within or provisions that relate to the site itself. As such, overall outcome 3(d) can be given full effect regardless of whether overall outcome (5)(a) of the Forest Lake neighbourhood plan is construed as requiring development to be predominantly for a multipurpose centre and medium density residential development or only for that purpose.
For the reasons provided above, I am satisfied that, to the extent it is necessary to resolve an inconsistency between overall outcome (4)(d) of the Low density residential zone code and the provisions of the Forest Lake neighbourhood plan code, it is appropriate to give primacy to the outcomes sought in the Forest Lake neighbourhood plan code. That is not to say that the non-compliance with the height stipulation in overall outcome (4)(d) of the Low density residential zone code is to be ignored. However, the non-compliance with a single assessment benchmark is not assumed to have primacy in the exercise of the planning discretion such that the non-compliance alone warrants refusal of the proposed development.[41] The non-compliance is to be considered in light of other relevant matters, which includes that an approval is consistent with the finer-grained planning reflected in the Forest Lake neighbourhood plan code.
[41]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [50]. Incidentally, s 326 of the Sustainable Planning Act 2009 (Qld) also recognised that development could be approved in conflict with a provision of a planning scheme if the conflict arose because of a conflict between two or more aspects of the planning scheme and the decision was one that best achieved the purposes of the planning scheme.
Conclusion regarding the appropriateness of the height
The proposed development does not comply with the height requirement in overall outcome (4)(d) of the Low density residential zone code. However, for the reasons set out above, this does not compromise the planning goals for the locality. To the contrary, the planning goals are achieved by compliance with the finer-grained planning expressed in overall outcomes (3)(a) and (b) and (5)(a) and (b) of the Forest Lake neighbourhood plan code. Those provisions encourage development of the type proposed.
Is the proposed development of an appropriate bulk, scale, form, and intensity having regard to the character, location, and street context of the subject land?
The Council alleges that the proposed development is not of an appropriate bulk, scale, form and intensity having regard to an assessment of the proposed development against the Multiple dwelling code.
The Multiple dwelling code is a code of general application that, in version 9 of City Plan, applied to all development applications for multiple dwellings across Brisbane City. (In the most recent version of City Plan 2014, version 16, it no longer applies to development applications for retirement facilities. Retirement facilities are now subject to assessment against the Retirement and residential care facility code instead.)
The Council alleges the proposed development does not comply with overall outcomes (2)(e) and (i) and performance outcome PO6 of the Multiple dwelling code.
Does the proposed development comply with overall outcome (2)(e) of the Multiple dwelling code?
Overall outcome (2)(e) of the Multiple dwelling code states:
“Development has a bulk, scale, form and intensity that integrates with the existing and intended neighbourhood structure for the area as expressed by the zone, zone precinct and neighbourhood plan outcomes, and is consistent with:
(i)the location and street context of the site;
(ii)its proximity to an activity centre, higher capacity public transport services, or other community facilities;
(iii)the capacity of infrastructure.”
The Council alleges the proposed development is not of a bulk, scale, form, and intensity that integrates with the existing and intended neighbourhood structure for the area as expressed by zone, zone precinct, and neighbourhood plan outcomes. It also alleges the proposed development is not consistent with the location and street context of the subject land. The Council accepts that the proposed development is consistent with its proximity to an activity centre, higher capacity public transport services and other community facilities such as the open space associated with the Lake. It also does not dispute that the proposed development is consistent with the capacity of infrastructure.
The Council’s submissions were of little assistance in appreciating the basis for its allegations and the evidence it relies on to substantiate them. The submissions note the self-evident propositions that “bulk” is referred to in connection with “scale, form and intensity” and that the provision refers to “existing” and “intended” neighbourhood structure. The Council did not articulate what it says is the “existing” or “intended” neighbourhood structure, nor point to any evidence that it says the Court should consider in making the necessary factual determination. In addition, the Council did not identify the area that it says constitutes the relevant “location”, nor articulate what it says is the “street context of the site”. It did not point to any evidence that it says the Court should consider with respect to those concepts. The Council did not explain why it says the proposed development is not consistent with the location and street context of the site. Its submissions about the alleged non-compliance were as follows:
“67.Mr Buckley relied on building bulk being counter-balanced by the proposal having no residential neighbours. The Appellant seeks to rely on that opinion and make much of the fact that the land adjoins a commercial development and a car park. That is true, but properly viewed what the development does is to borrow those spaces and also the park space to justify its own bulk and scale. That is not a sound justification for a bulky building with high site cover.[42]
68.The proposal does not in its bulk, scale, form and intensity integrate with the existing neighbourhood structure. The Respondent submits that the proper application of this overall outcome requires consideration of both the present and intended form and character of the local area. In doing so, it is relevant to bring to account the likely pace of any transition to a higher form of development. To do so would be consistent with the approach of Mr Gaskell and Mr Buckley.”
[42]Mr Gaskell calculated the site cover of the proposed development at approximately 66 per cent.
I do not accept the submission that Mr Buckley endorsed an approach that places weight on the likely pace of transition to a higher form of development. In its written submissions, the Council did not identify the evidence it relied on to support the submission. In oral submissions, it identified one answer provided by Mr Buckley during cross-examination. The question Mr Buckley was asked to answer was premised on an assumption that there would be no medium rise development in the medium density zone for the next 10 years. His answer is of no assistance as the assumption calls for speculation about future events about which there is no evidence.
What is the existing neighbourhood structure and the relevant location and street context of the subject land?
Mr Curtis, the visual amenity, architecture and landscape expert retained by the Appellant, is of the opinion that the locality most relevant to an assessment of the proposed development is the District business centre precinct of the Forest Lake neighbourhood plan area. It is on the western side of Forest Lake Boulevard. Mr Curtis explains that the precinct is a distinct area. Two prominent features separate it from the broader locality. One is Forest Lake Boulevard. It bisects the suburb and forms the principal organisational spine for the local settlement pattern. Forest Lake Boulevard also acts as a boundary to this distinct area because, for most of its length, the adjoining houses are disengaged from and have little or no connectivity to it. The rear elevations of the houses are setback from Forest Lake Boulevard behind high fences and landscaping. Access to the houses is from local streets within the residential estate, and the principal facades of the houses address those streets. The other defining feature is the public recreation area associated with and including the lake.
I am satisfied that the provision of adequate facilities for the purpose of aging in place is a matter of significant importance to the community. It is critical to the wellbeing of an important group in the community.
At present, there are limited options for the elderly residents of the catchment area who wish to move into an independent living unit in their community. As I have already noted in paragraph [197] above, there are only three existing retirement villages offering a total of 698 independent living units and 104 serviced apartments.
The largest of the three retirement facilities is Aveo Durack. It is a large, broad acre retirement and aged care site developed in 1985. It offers 629 retirement homes and a Commonwealth funded residential aged care site with 123 beds. Ms Wells says that of the 525 independent living units provided by that facility, three quarters are “older stock”. Settlers Forest Lake offers 86 units in a village setting. It comprises predominantly small, one-bedroom stock. The Terraces at Forest Lake, run by Lendlease, is a broad acre retirement village offering 87 places, providing a more traditional village with predominantly larger, three-bedroom homes.
Ms Wells explains that no structured ageing services are available at the two smaller facilities. Ms Wells says that of the 698 independent living units in those existing retirement facilities, four-fifths of the stock are older and built more than 14 years ago, only 12 per cent are offered as apartments and only two percent are offered as two-bedroom apartments.
Ms Wells opines that the older stock at Aveo Durack does not enable ageing in place for all the individuals. As people age, they have some mobility issues. A very large, spread out and hilly site like Aveo Durack can be socially isolating for the residents because they cannot get to the communal facilities. Also, all of the independent living units are not designed for ageing. They do not all have level access. Some still have hobs on showers and kitchens that are not designed for easy use by the elderly. Only 25 per cent of the independent living units in Aveo Durack are modern stock. It is not apartment stock. Given the constraints of the site and the apartment design, in order to age in place at Aveo Durack, the residents move through to residential aged care. Ms Wells says this is not necessarily desirable for most of the population.
In the opinion of Ms Wells, as a result of the matters referred to in paragraphs [227] and [228] above, while there are three existing villages in the catchment, there is only a small number of modern independent living units meeting the need of the community for modern retirement accommodation. I accept her opinion.
Ms Wells opines that the proposed development offers a very different choice to the existing facilities. The proposed development does not present the impediments to ageing in place that plague the existing facilities. As I have already noted in paragraphs [178] and [179] above, Ms Wells opines that the proposed development is designed as a modern retirement facility that will enable ageing in place. It would be a contemporary retirement village that would offer a high standard of service to the public.
The proposed development also offers a different choice because of its size. Two-bedroom apartments constitute a very small proportion of available independent living units in the catchment. Further, at a size of 30 independent living units, the development is an exception. Of the 7 600 independent living units available across 79 retirement villages in the wider Brisbane area, the majority form part of large retirement or retirement and aged care campuses, offering at least 60 or more dwellings. Only four villages offer around 20 to 30 dwellings. All of the smaller facilities are older style villages with traditional retirement accommodation. This fact is not expected to change in the future. Ms Wells is of the opinion that the majority of providers will seek to develop at least 100 units moving forward. Ms Wells described the differences between large and boutique retirement villages as “two very different choices”. In her opinion, small scale villages provide an alternative to larger retirement and aged care campuses that house large populations and can often be separated from normal daily living of all ages.
The Council submits that the benefits of choice associated with a modern facility at a location in the heart of Forest Lake could be met on the subject land by a building of a lesser height than five storeys. The Council did not reference any evidence that it says supports its submission. Ms Wells opined that it would be very difficult, if not impossible, for a smaller retirement village to be delivered on the subject land. Ms Wells provided a cogent explanation for her opinion. She says that with 30 units there would be around 40 residents (based on the average of 1.3 people per unit). Using a metric of home care as an example, Ms Wells explained that typically a full-time home care case manager would look for around 30 people seeking such services to be viable. If the facility had only 12 people seeking home care services, whilst it still might be serviceable, it is probably not viable. A smaller facility increases the prospect that an insufficient number of the residents would want the service. Around 39 or 40 people in a retirement village also gives a greater ability to have enjoyable social group activities, such as a craft group or a music group. In a facility of less than 40 people, you would need a large percentage of the residents to agree to participate in order to viably provide those activities. Ms Wells also opines that with a smaller facility you would have to halve, or probably more than halve, the communal facilities because otherwise it would make the cost of the individual apartments too expensive and the ongoing charges more expensive and perhaps not realistic. I accept this evidence of Ms Wells.
Having regard to the matters identified in paragraphs [175], [176], [178], [179], [182], [183], and [222] to [232], I am satisfied that the proposed development will improve the services and facilities available in the catchment area. It will improve the ease, comfort, convenience and efficient lifestyle of the community.
Relevance of need
In this case, the need for the proposed development is relevant in two ways. First, it forms part of the test prescribed in overall outcome (3)(d) of the Forest Lake neighbourhood plan area. Second, JRD relies on it as a matter that favours approval of the development application.
For the reasons provided in paragraphs [137] to [142] above, it is unnecessary for JRD to demonstrate that there is both a community need and an economic need for the proposed development in order to demonstrate compliance with overall outcome (3)(d) of the Forest Lake neighbourhood plan code in version 9 of City Plan.
For the reasons provided in paragraphs [188] to [233] above, I am satisfied that there is a pressing need for modern retirement facilities. Further, the provision of adequate facilities for the purpose of aging in place is a matter of significant importance to the community. It is critical to the wellbeing of an important group in the community. JRD’s proposed development is appropriately located and designed to meet the need.
I do not accept the Council’s submission that the size of the development is of insufficient moment to support approval. The proposed development provides an important service to the community and is a use that is permissible in the area in which it is to be located. As such, it is not incumbent upon JRD to establish that the contribution will be significant in terms of the number of independent living units. It is sufficient for it to demonstrate that there is still a reasonably apparent, discernible need for extra retirement facilities. It has done so.
The proposed development will offer an additional choice. It will improve the services and facilities available in the catchment area. It will improve the ease, comfort, convenience and efficient lifestyle of the community.
The demonstrated need for modern retirement facilities to enable ageing in place is a matter in favour of the approval.
Do the other relevant matters support approval?
As I have noted in paragraph [186] above, JRD also relies on four other matters in support of approval.
First, the subject land is ideally located for retirement residential purposes having regard to its general amenity and aspect, and its proximity to facilities. This was not contested by the Council. The Council says it is relevant to the issue of need but it should not be double counted. I accept that the subject land provides excellent access to centres, retail, entertainment, health care, public transport and recreational facilities. Those features make the subject land ideal for a retirement facility. I accept that this is a matter that supports approval of the proposed development, particularly as it demonstrates compliance with the Retirement and residential care facility code in version 16 of City Plan.[55]
[55]See paragraphs [181] to [185] above.
Second, the proposed development is aligned with the purpose to be served by the recent amendments to City Plan with respect to retirement and aged care facilities. This has already been addressed in paragraphs [143] to [185] above. It is a matter that supports approval of the proposed development.
Third, the proposed development would not result in any unacceptable amenity impacts. In amending the issues shortly before the commencement of the trial, the Council and the Co-Respondents by Election conceded that the proposed development would not have any unacceptable traffic, noise, or amenity impacts (including due to wind and lighting impacts).[56] Although the Council accepts this, it says this matter should not be determinative. I agree. However, it is an additional matter that supports approval of the proposed development.
[56]See T1-7/L28 - T1-8/L39.
Fourth, version 9 of City Plan failed to anticipate the need for a retirement facility of the type and form proposed on the subject land. Neither the Council nor the Co-respondents by Election[57] suggest that the retirement facility use is not contemplated in the Low density residential zone and the District Business Centre NPP-002 Precinct in the Forest Lake neighbourhood plan. The Council accepts that the location is an appropriate one. The Council also accepts that there may be a need in the sense of additional choice but says the choice could be provided by a development of a fewer number of storeys than what is proposed here. I do not accept the Council’s submissions for the reasons provided in paragraph [232] above.
Should the development application for the proposed development be approved in the exercise of the planning discretion?
[57]When I refer to the Co-respondents by Election, I am referring to those four who elected to appear.
As I have noted in paragraph [12] above, there is a broad discretion in determining this appeal. The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice. Not every non-compliance will warrant refusal. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.
In this case, JRD’s proposed development does not comply with all aspects of version 9 of City Plan. It does not comply with overall outcome (4)(d) of the Low density residential zone code. Despite that, it achieves the other aspirations of City Plan and the planning outcomes sought in version 16 of City Plan. As such, the nature and extent of the non-compliance is not, of itself, a compelling reason to refuse JRD’s application.
In the balancing exercise that is required through the development assessment process under the Planning Act 2016, I am persuaded that it is not an appropriate planning outcome to permit the low density residential zoning of the subject land and the contents of overall outcome (4)(d) of the Low density residential zone code in version 9 of City Plan to overwhelm the other aspirations of City Plan or the planning outcomes sought in version 16 of City Plan. During oral submissions, Mr Traves QC accepted that if JRD demonstrated compliance with version 16 of City Plan but had not demonstrated compliance with version 9 of City Plan, it would be difficult for the Council to resist an approval. That is the circumstance that pertains here.
I am satisfied that, in the exercise of the planning discretion, JRD’s application should be approved because of the combined effect of the following matters:
(a) while JRD’s proposed development does not comply with overall outcome (4)(d) of the Low density residential zone code in version 9 of City Plan, that provision no longer exists in City Plan version 16;
(b) JRD’s proposed development complies with the requirements in the applicable assessment benchmarks in the Forest lake neighbourhood plan code, which provide more detailed planning for the area than the zone code;
(c) JRD’s proposed development complies with the requirements in the applicable assessment benchmarks in the Multiple dwelling code in version 9 of City Plan;
(d) JRD’s proposed development complies with version 16 of City Plan;
(e) there is a pressing need for modern retirement facilities;
(f) the provision of adequate facilities for the purpose of aging in place is a matter of significant importance to the community: it is critical to the wellbeing of an important group in the community;
(g) the proposed development is a use that is permissible in the area in which it is to be located;
(h) the proposed development will offer an additional choice and will improve the services and facilities available in the catchment area;
(i) JRD’s proposed development is appropriately located and designed to meet the economic, community and town planning need; and
(j) the proposed development would not result in any unacceptable amenity impacts.
Accordingly, the application should be approved, subject to conditions.
Conclusion
For the reasons provided above, JRD has discharged the onus and the appeal will be allowed in due course.
I will give the parties an opportunity to formulate an agreed suite of conditions of approval. The orders of the Court will be:
(a) By 4pm on 11 March 2020, the Respondent is to deliver a draft suite of conditions to the other parties.
(b) The appeal be listed for review at 9.15 am on 18 March 2020 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval.
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