McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor - [2021] QPEC 42

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42

PARTIES:

PETER ANTHONY MCKAY
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

and

AZURE DEVELOPMENT GROUP PTY LTD
(Co-respondent)

AND

RENO ANTHONY PANOZZO
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

and

AZURE DEVELOPMENT GROUP PTY LTD
(Co-respondent)

AND

PETER MICHAEL JENSEN
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

and

AZURE DEVELOPMENT GROUP PTY LTD
(Co-respondent)

FILE NO/S:

1747 of 2020, 1749 of 2020 and 1750 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9, 11 and 12 February 2021 and further exhibits received 2 March 2021 and 12 July 2021 and further submissions received 15, 19 and 20 July 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

1. Appeals numbered 1747 of 2020, 1749 of 2020 and 1750 of 2020 are dismissed.

2. The decision of Brisbane City Council notified by the decision notice addressed to Azure Development Group Pty Ltd dated 22 May 2020 is confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against approval of a development application seeking a development permit for material change of use for a six storey multiple dwelling in the Medium density residential zone – whether the proposed development is of an appropriate height, bulk and scale – whether the proposed development will contribute to a cohesive streetscape – whether the proposed development will be compatible with the existing and intended character of the area – whether the proposed development will cause any unacceptable amenity impact – whether the proposed development provides for adequate deep planting and landscaping – whether there is a need for the proposed development – whether there are relevant matters that support approval of the proposed development – whether the development application for the proposed development should be approved in the exercise of the planning discretion

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

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

AclandPastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

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

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

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, cited

Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors [2008] QPEC 45; [2009] QPELR 35, approved

Development Watch & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, approved

Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, approved

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

Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42; [2016] QPELR 784, approved

Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62; [2017] QPELR 49, 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

Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, approved

Norfolk Estates Pty Ltd v Brisbane City Council & Anor [2016] QPEC 9; [2016] QPELR 285, considered

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

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

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

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved

Wilhelm v Logan City Council & Ors [2020] QCA 273, applied

Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

J Ware for the Appellants
R Yuen for the Respondent
D Gore QC and D Whitehouse for the Co-respondent

SOLICITORS:

Anderssens Lawyers for the Appellants
City Legal for the Respondent
Clinton Mohr Lawyers for the Co-respondent

TABLE OF CONTENTS

Introduction

What is the applicable framework for the decision?

What are the relevant assessment benchmarks?

What is the nature of the proposed development?

What does City Plan seek to achieve in terms of height, bulk, and scale?

What guidance does the Medium density residential zone code provide?

What guidance does the New Farm and Teneriffe Hill neighbourhood plan code provide?

What guidance does the Multiple dwelling code provide?

Conclusion regarding the guidance on the height, bulk, and scale of development

Is the proposed development of a height, bulk and scale that is appropriate?

Is the proposed development compatible with, and does it contribute to, a cohesive streetscape, and the existing and intended character and sense of place?

What is the existing character of the locality and the relevant streetscape?
What is the intended character?
Is the proposed development appropriate having regard to the existing streetscape and character of the locality and the intended character?
Are the setbacks, building separation and site cover of the proposed development appropriate in character terms?

Is the proposed development located on a suitable site?

Conclusion regarding the appropriateness of the height, bulk, and scale of the development

Will the proposed development cause unacceptable amenity impacts?

Will the proposed development result in an unacceptable loss of views?

Will the proposed development result in unacceptable privacy and overlooking impacts?

Will the proposed development result in unacceptable overshadowing?

Will the proposed development incorporate appropriate landscaping?

Does the proposed development comply with the overall outcomes for the Medium density living precinct of the neighbourhood plan?

Conclusion regarding assessment against the relevant assessment benchmarks

Are there relevant matters that support approval?

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

Conclusion

Introduction

Immediately adjacent Merthyr Park, at 156 - 158 Oxlade Drive, New Farm, there are three adjoining lots with a combined area of 1,097 square metres (“the subject land”). The trapezoidal shape of the subject land provides a narrow frontage to Oxlade Drive and a wider frontage to the Brisbane River. The subject land contains two single storey houses. The lots are all in the Medium density residential zone under Brisbane City Plan 2014 (“City Plan”) and are ripe for redevelopment.
The Co-respondent, Azure Development Group Pty Ltd (“Azure Development Group”), wants to develop the subject land for a six-storey apartment building containing 10 units. It made a development application seeking a development permit for a material change of use to facilitate its goal. Brisbane City Council (“the Council”) approved the application. Three residents of the adjoining apartment building to the east (known as “Kirribilli”) (“the Appellants”) objected to the proposed development and each has appealed against the Council’s decision.
The issues in dispute between the parties relate to:
(a)the extent to which the proposed development conforms with the relevant assessment benchmarks; and
(b)whether there are relevant matters that support approval of the proposed development.
The ultimate issue I need to determine 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 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] Azure Development Group bears the onus of establishing that the appeal should be dismissed.[3]
[2]Planning and Environment Court Act 2016 s 43.
[3]Planning and Environment Court Act 2016 s 45.
Azure Development Group seeks a development permit to authorise it to carry out a material change of use of the subject land from its present use for two houses to use for 10 apartments in a six-storey building generally in accordance with the design reflected in the plans provided as Exhibit 5.
There is a broad discretion in determining these appeals.[4] The exercise of the discretion must be based on an assessment that:[5]
(a)must be carried out:
(i)against the assessment benchmarks in City Plan version 16 to the extent relevant;[6]
(ii)having regard to, relevantly, any development approval for, and any lawful use of, the premises and adjacent premises and the common material, including properly made submissions about the development application;[7] 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).
[4]Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).
[5]Planning Act 2016 ss 45(5) and 59.
[6]It is common ground that version 16 of Brisbane City Plan 2014 was the categorising instrument for the development in effect when the development application was properly made.
[7]Planning Regulation 2017 (Qld) s 31 and sch 24.
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 & Ors.[8] His Honour’s approach was endorsed by the Court of Appeal in 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]. It is also common ground that my observations about the approach to assessment in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor (“Murphy”)[13] are apposite.
[8][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[9][2020] QCA 253.
[10][2020] QCA 257.
[11][2020] QCA 273.
[12][2021] QCA 95.
[13][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].
As is apparent from those decisions, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.[14] The flexibility promulgated by the Planning Act 2016 is to enable
“a ‘balanced decision in the public interest’ to be reached, based on an assessment of the merits of an application having regard to established policy and other relevant considerations”.[15]
[14]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804‑6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]‑[14].
[15]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 806 [51].
To that end, the starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[16] The parties accept that my observations in Murphy are consistent with those in Ashvan Investments Unit Trust v Brisbane City Council & Ors[17] and Abeleda & Anor v Brisbane City Council & Anor[18] and are pertinent in this case. In particular, the Council references my observations in Murphy that:
“[20] The legislation requires a planning scheme to include measures to facilitate the achievement of the strategic outcomes.[19] The local government must draft them in circumstances where the available information is limited. For example, while a local government may have studies that provide a reasonable indication of the ecological values present in a particular locality, or natural features that pose a constraint for development, it does not have detail about every attribute of every piece of land within its local government area. The available information reflects the position at a particular point in time. Further, a planning scheme expresses the controls that guide the parameters of development in performance-based terms.[20] They do not advance a particular design option or solution for a particular site. They are drafted without the benefit of a particular development option or design. While planning controls are generally drawn by town planners with experience of a great variety of applications, the combination of criteria applicable in any one case can differ, depending on the particulars of the development proposed and the location it is proposed. A local government could not possibly foresee every combination of controls that might apply, and their impact on every potential development scenario that individuals may seek to advance on every site across its local government area.
[21]When viewed in that context, one can appreciate that development that differs from that encouraged by the planning controls, or that fails to comply with benchmarks set in a planning scheme, does not necessarily result in haphazard development. Development may differ from the planning controls but be compatible with, ancillary to or designed to complement the planning outcome sought by the planning controls, or otherwise advance the needs of a community in a particular area without undue adverse town planning consequence, because of its own merits and the particular combination of facts and circumstances relevant to it.[21] This underscores the importance of flexibility in the decision-making process.
[22]I agree with Judge Williamson QC’s observation that a planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted. It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other. The Sustainable Planning Act 2009 gave primacy to the planning scheme in the striking of the balance. That is not what s 60 of the Planning Act 2016 requires. Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. 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.[22] Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. 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.[23]”[24]
[16]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [42], [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [77].
[17][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[18][2020] QCA 257.
[19]Section 16 of the Planning Act 2016.
[20]Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, 1033 [26].
[21]Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139-40.
[22]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, [60] citing Hua Sheng Co Pty Ltd v Brisbane City Council [1991] QPLR 99, 102.
[23]Smout v Brisbane City Council [2019] QPEC 10; [2019] QPELR 684, [54].
[24]Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 336-7 [20]‑[22] (emphasis added, original citations).
What are the relevant assessment benchmarks?
The proposed development is impact assessable. Accordingly, s 5.3.3 of City Plan requires the development application to be assessed against the whole planning scheme, to the extent relevant. There are a multitude of benchmarks that are relevant to the proposed development. Many, but not all, of the assessment benchmarks have been put in issue by the Appellants.
The Appellants contend that the proposed development is not consistent with the assessment benchmarks in:
(a)the overall outcomes in ss 6.2.1.3 4.a. and 6.2.1.3 5.a., b., c., d., e. and h. of the Medium density residential zone code;
(b)the overall outcomes in ss 7.2.14.1.2 3.a., b., f., m. and 7.2.14.1.2 6.a. and b. and performance outcomes PO1 b., c., d. and e., PO7, PO8 and PO10 (and each of the associated acceptable outcomes) of the New Farm and Teneriffe Hill neighbourhood plan code; and
(c)the overall outcomes in s 9.3.14.2 2.a., e., h., i., j., l. and q., and performance outcomes PO5 c. and d., PO6 b., c., d., and f., PO7 a., b, and c., PO8 a., b. and c., PO9 e. and f., PO11 a., b. and c., and PO14 a., b. and c. (and each of the associated acceptable outcomes) of the Multiple dwelling code.
These benchmarks were identified in Exhibit 28, the List of Remaining Issues for Determination. That document did not particularise the nature of the non-compliance alleged with each provision, nor did the Appellants’ written submissions provide appropriate clarity on the matter. Many of the provisions identified by the Appellants seek to achieve more than one planning outcome. For example, the overall outcome in s 6.2.1.3 5.a. requires development for a residential building to occur on appropriately sized and configured lots and be of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Medium density residential zone and reinforce a distinctive subtropical character. In those circumstances, the lack of particulars fails to provide appropriate notice of the case that the party with the onus must meet. As such, the form adopted for identifying the remaining issues for determination is unacceptable. On 2 March 2021, after the hearing had concluded, the Appellants provided a further version of the List of Remaining Issues for Determination, to which they attached an extract of the relevant provisions marked up to strike-through those parts of the provisions that they do not put in issue.[25] It would have been helpful to provide this level of detail at the outset.
[25]See Exhibits 28A and 28B.

In their written submissions, the Appellants address the alleged non-compliances by reference to four broad issues, namely:
(a)whether the proposed development will be compatible with and contribute to a cohesive streetscape and the locality’s existing and intended character and sense of place;
(b)whether the proposed development will cause any unacceptable impact on the existing and intended character of the locality;
(c)whether the proposed development will cause any unacceptable amenity impact for the local community and surrounding residents, including with respect to privacy, overshadowing and views; and
(d)whether the proposed development will provide opportunities for adequate deep planting and other landscaping.

Aside from these broad issues, the Appellants make two other allegations of non-compliance. They relate to overall outcomes for the Medium density living precinct in the New Farm and Teneriffe Hill neighbourhood plan.
There is significant overlap in the first and second issues raised by the Appellants. As such, I intend to assess the proposed development’s compliance with the relevant assessment benchmarks by addressing the extent to which it achieves the planning goals with respect to:
(a)the height, bulk and scale of development;
(b)the amenity impacts of development;
(c)landscaping; and
(d)the Medium density living precinct in the New Farm and Teneriffe Hill neighbourhood plan.
Before turning to consider each of these issues in detail, it is helpful to have a general understanding of the nature of the proposed development.
What is the nature of the proposed development?
The proposed development is a material change of use for multiple dwellings (10 units) in a six-storey apartment building with a private roof terrace and two levels of basement carparks.
The proposed development includes:
(a)at ground level (1^st storey) – an entrance lobby, pool and recreation area, along with access to Merthyr Park and one four-bedroom unit that is oriented to the park and Brisbane River with a private outdoor terrace;
(b)at each of levels 1 to 4 (2^nd to 5^th storeys) – two three-bedroom units, oriented with the living space and balcony overlooking the park and Brisbane River and with the recreation areas located at the western end;
(c)at level 5 (6^th storey) – one four-bedroom unit with a balcony to the river frontage;
(d)a private roof terrace associated with the four-bedroom unit on level 5; and
(e)two levels of basement carpark containing 31 resident car parks, two visitor car parks, 10 bicycle parks and storage.
The height of the building is 21.9 metres (RL 26.5 metres AHD) to the top of the parapet and 24.3 metres (RL 28.9 metres AHD) to the top of the rooftop pergola and private stairwell.
What does City Plan seek to achieve in terms of height, bulk, and scale?
The Appellants put in issue three of the components of City Plan that guide the appropriate height, bulk, and scale of development. They are the Medium density residential zone code, the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code.
What guidance does the Medium density residential zone code provide?
City Plan uses zones to organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.[26] One of the mechanisms used to facilitate preferred land uses is the allocation of the category of assessment. This is a blunt planning tool that encourages development by categorising the development as either accepted development or assessable development that requires code assessment.
[26]City Plan s 6.1 1.
Here, the subject land is included in the Medium density residential zone. Pursuant to s 5.3.2 and Table 5.5.3 of City Plan, a multiple dwelling in the Medium density residential zone is code assessable if it is no greater than the building height specified in a relevant neighbourhood plan; and, where a neighbourhood plan does not specify building height, five storeys. Otherwise, a multiple dwelling in the Medium density residential zone is impact assessable.[27]
[27]The impact assessable uses include “any use listed in this table and not meeting the description listed in the ‘Categories of development and assessment column’”.
The subject land is in the Medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area. Table 5.9.50.A indicates that there is no change to the level of assessment for land in the New Farm and Teneriffe Hill neighbourhood plan area.
The proposed development is a six-storey multiple dwelling. As such, it is impact assessable. That does not, of itself, indicate that the proposed development is of a form that is not anticipated in the Medium density residential zone, but it does indicate that the impact of the proposed development and its acceptability requires closer scrutiny.
City Plan also facilitates the location of preferred or acceptable land uses in the Medium density residential zone through the application of the assessment benchmarks in the Medium density residential zone code. Section 6.2.1.3 1. records that the purpose of the Medium density residential zone is to provide for medium density multiple dwellings.[28] That purpose is to be achieved through overall outcomes for the zone role, development location and uses and development form.
[28]City Plan s 6.2.1.3 1.
In terms of the height, bulk and scale of the proposed development, the Appellants allege that the proposed development is not consistent with the following overall outcomes in s 6.2.1.3 of the Medium density residential zone code:
“4.Development location and uses overall outcomes are:
a.Development provides for a mix of well-designed, location-responsive medium rise and medium density residential development of up to 5 storeys and located on suitable sites, in well-located parts of the city, including the inner city and in close proximity to significant centres or along growth corridors or on the periphery of centres.

5.Development form overall outcomes are:
a.Development for a residential building occurs on appropriately sized and configured lots and is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Medium density residential zone and reinforces a distinctive subtropical character of medium rise buildings with a landscaped streetscape and recreation areas.
b.Development comprises medium rise, medium-high density residential buildings of predominantly apartment style multiple dwellings, 3 to 5 storeys in height.

c.Development provides for a building to have a building height and bulk that responds to:
i. the nature of adjoining dwellings;
ii. site characteristics, including the shape, frontage, size, orientation and slope.
d.Development responds to local characteristics, such as protection of view corridors, reinforces a green landscape character and responds to the surrounding character and architecture by having a lower height and/or smaller bulk than in the High density residential zone, acknowledging this zone’s role as a transition area between higher and lower rise/lower density zones.
e.Development for a housing type other than a dwelling house is of a scale and bulk that enables the buildings to co-exist comfortably with dwelling house and dual occupancy uses in adjoining lower density zones.”

(emphasis added)

The parties disagree about the proper construction of the overall outcomes in ss 6.2.1.3 4.a. and 5.b.. The Appellants contend that, properly construed, these provisions seek to limit development in the Medium density residential zone to that which is between three and five storeys in height. The Council and Azure Development Group contend that the outcomes require development to be “medium rise” but that the references to “up to 5 storeys” and to “3 to 5 storeys” are not to be construed as a definition of “medium rise” development.
The drafting of ss 6.2.1.3 4.a. and 5.b. leaves a lot to be desired. It seems to me that a storey is a direct measure of the “rise” of a building. As such, while the interjection of a reference to the desired density of residential buildings between the reference to “medium rise” and “5 storeys” poses a challenge to the clarity of the provisions, the encouragement for medium rise development should sensibly be read in conjunction with the references to “up to 5 storeys” and to “3 to 5 storeys”. Further, when s 6.2.1.3 5.b. is read together with s 6.2.1.3 4.a., it supports a construction of “medium rise” development as including[29] that which is between three and five storeys in height.[30]
[29]It is not necessary for me to determine whether “medium rise” should be read as limited to development that is three to five storeys in height for the reasons provided in paragraphs [33] and [42] to [57] below.
[30]A slightly different approach to the meaning was adopted by His Honour Judge Robertson in Norfolk Estates Pty Ltd v Brisbane City Council & Anor [2016] QPEC 9; [2016] QPELR 285, 298 [46]. I accept that the construction adopted by His Honour is also open. Ultimately, the proper construction of the provision is not determinative to the outcome of this appeal for reasons that will become apparent.
This construction sits comfortably with other provisions of City Plan. It is consistent with the overall outcomes for the High density residential zone code. They call for “medium to high rise multiple dwellings to predominate”,[31] which is to be achieved by development being “predominantly 5 to 8 storeys in height” in the “Up to 8 storeys zone precinct”[32] and “predominantly 9 to 15 storeys in height” in the “Up to 15 storeys zone precinct”. Further, it is not discordant with the encouragement for:
(a)“dwelling houses of predominantly 1 or 2 storeys in height” in the Low density residential zone code;[33]
(b)“2 storey low rise multiple dwellings” in the 2 storey mix zone precinct in the Low-medium density residential zone code;[34]
(c)low-rise, low-medium density residential buildings that are “predominantly 1 or 2 storeys in height” in the 2 storey mix zone precinct of the Low-medium density residential zone code;[35]
(d)“2 to 3 storey low rise multiple dwellings” in the 2 or 3 storey mix zone precinct in the Low-medium density residential zone code;[36]
(e)low-medium rise, low-medium density residential buildings that are “predominantly 2 storeys, or of up to 3 storeys in height” in the 2 or 3 storey mix zone precinct of the Low-medium density residential zone code;[37]
(f)“predominantly 3 storey low-medium rise multiple dwellings” in the Up to 3 storeys zone precinct in the Low-medium density residential zone code;[38] and
(g)low-medium rise, medium density residential buildings that are “predominantly (but no more than) 3 storeys in height” in the Up to 3 storeys zone precinct of the Low-medium density residential zone code.[39]
[31]City Plan s 6.2.1.4 4.a.
[32]City Plan s 6.2.1.4 6.a.
[33]City Plan s 6.2.1.1 4.a.
[34]City Plan s 6.2.1.2 6.a.
[35]City Plan s 6.2.1.2 6.b.i.
[36]City Plan s 6.2.1.2 7.a.
[37]City Plan s 6.2.1.2 7.b.i.
[38]City Plan s 6.2.1.2 8.a.
[39]City Plan s 6.2.1.2 8.b.i.
These provisions call for a predominance of development of a particular height. Those desired outcomes must be understood in a context where development of lesser height would be code assessable and must also be in contemplation.
The proposed development is a multiple dwelling of six storeys. It is not encouraged as a preferred or acceptable land use under ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code. Those provisions are expressed in positive terms. As such, although a multiple dwelling of six storeys is not encouraged, it is also not expressly discouraged.[40] As such, to determine the appropriateness of the proposed development it will be necessary to carefully examine the details of the proposed development against other provisions of City Plan that:
(a)guide the anticipated height, bulk, and scale of residential uses on the subject land; and
(b)contain specific controls, particularly those that relate to built form, character, and amenity, to ascertain whether the controls are respected.
[40]cf City Plan s 6.2.1.2 8.b.i. which states, “Development of low-medium rise, medium density residential buildings are predominantly (but no more than) 3 storeys in height”. (emphasis added)
The relevant provisions include the other overall outcomes referred to in paragraph [28] above, as well as those provisions of the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code put in issue by the Appellants.
What guidance does the New Farm and Teneriffe Hill neighbourhood plan code provide?
Neighbourhood plans address matters at the local or district level. They may provide more detailed planning for the zones.[41] The mapping of land within a particular neighbourhood plan area, or a precinct within a neighbourhood plan, is also used to facilitate preferred land uses.
[41]City Plan s 7.1 1.
As I have mentioned in paragraph [25] above, the subject land is in the Medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area. It is subject to the New Farm and Teneriffe Hill neighbourhood plan code. The purpose of the code is to provide finer grained planning at a local level for the New Farm and Teneriffe Hill neighbourhood plan area.[42] The purpose is to be achieved through the overall outcomes, including those for each precinct.[43]
[42]City Plan s 7.2.14.1.2 1.
[43]City Plan s 7.2.14.1.2 2.
The Appellants contend that the proposed development is not consistent with the following overall outcomes contained in s 7.2.14.1.2 of the New Farm and Teneriffe Hill neighbourhood plan code:
“3.The overall outcomes for the neighbourhood plan area are:
a.New Farm’s characteristic diversity of built form and village feel is retained.
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.
…
6.Medium density living precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-003) overall outcomes are:
a.This precinct is predominantly medium density, taking advantage of the benefits of high levels of accessibility and visual amenity that characterise this area.”
(emphasis added)
The Appellants further contend that the proposed development is not consistent 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:

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 Medium density living precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-003)

PO7

Development ensures new buildings maintain views to and from the river and other landmark sites identified in Figure a, and a visual relationship with other buildings in the vicinity.

AO7

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

PO8

Development ensures building size and bulk is consistent with the medium density nature of the locality and retains an appropriate residential scale and relationship with other precincts in the neighbourhood plan area.

AO8

Development has a maximum gross floor area equal to the area of the site.

PO10

Development includes street setbacks which are compatible with existing setbacks in the area.

AO10

Development is set back a minimum of 6m from any road alignment.

(emphasis added)
What guidance does the Multiple dwelling code provide?

In terms of the height, bulk and scale of the proposed development, the Appellants contend that the proposed development is not consistent with the following overall outcomes contained in s 9.3.14.2 of the Multiple dwelling code:
“2.The purpose of the code will be achieved through the following overall outcomes:
…
e.Development has 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, 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.
…
h.Development is of a height that is appropriate to the strategic and local context and meets community expectations consistent with the following:
i.       15 storeys in the Up to 15 storeys zone precinct of the High density residential zone;
ii.      8 storeys in the Up to 8 storeys zone precinct of the High density residential zone;
iii.     5 storeys in the Medium density residential zone;
iv.     3 storeys in the Up to 3 storeys zone precinct of the Low-medium density residential zone;
v.      2 or 3 storeys in the 2 or 3 storey mix zone precinct of the Low–medium density residential zone;
vi.     2 storeys in the 2 storey zone precinct of the Low-medium density residential zone;
vii.     2 storeys in the Infill housing zone precinct of the Character residential zone;
viii.    2 storeys in the Low density residential zone.
…
j.Development in or adjoining lower density residential areas uses side boundary setbacks and built form height transitions to manage the interface with those areas and reflect the amenity, form and character and subtropical landscape of those areas.
…
l.Development ensures that the proportion of built and natural features, including buildings, design features, on-site open spaces and landscaping, provide:
i.       an attractive streetscape interface that contributes to Brisbane’s character and identity, high-quality subtropical streetscapes and public space network;
…”
(emphasis added)
The Appellants also submit that the proposed development is not consistent with the following performance outcomes and associated acceptable outcomes contained in Table 9.3.14.3.A of the Multiple dwelling code:

PO5

Development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to:

a.      existing buildings that are to be retained;

b.      significant infrastructure or service constraints such as tunnels;

c.      existing and proposed building heights in the local area and street;

d.     adjoining buildings and separation of buildings necessary to ensure impacts on residential amenity and privacy are minimised;

e.      the impact of slope.

AO5

Development is contained within the building envelope for the site created by applying:

a.      the maximum building height in Table 9.3.14.3.B;

b.      front, rear and side boundary setback requirements in Table 9.3.14.3.C;

c.      car parking boundary setback requirements in Table 9.3.14.3.E;

d.     building separation requirements in Table 9.3.14.3.F;

e.      acceptable outcomes for building height transitions where required.

Refer to Figure b and Figure c.

Note—This acceptable outcome can be demonstrated by the preparation of a building envelope plan, elevations and sections.

PO6

Development has a building height that is consistent with the streetscape local context and intent for the area having regard to:

a.      proximity to high-frequency public transport services;

b.      the predominant height of existing or approved buildings in the street;

c.      providing appropriate separation and a sensitive transition between houses and higher scale building forms;

d.     street conditions such as street width;

e.      the topography of the area and site slope;

f.      view points and corridors;

g.      solar access to key public spaces and adjoining buildings.

AO6.1

Development has a maximum building height that complies with:

a.      a neighbourhood plan; or

b.      if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.B.

AO6.2

Development in the 2 or 3 storey mix zone precinct of the Low–medium density residential zone where adjoining a lot containing a dwelling house (where no approval for development other than a dwelling house exists) has a building height within 10m of the common boundary that does not exceed 9.5m and 2 storeys.

PO7

If:

a.      identified in a neighbourhood plan as a building height transition; or

b.      in the High density residential zone or the Medium density residential zone and sharing a common boundary with, or located fronting a minor road that is opposite, premises in the Low–medium density residential zone, Low density residential zone or Character residential zone.

Development provides buildings that are reduced in bulk and form to provide a transitional built form of compatible scale which protects the amenity of lower density residential areas bordering medium and high density residential areas by:

a.      stepping down in height and scale;

b.      heavily landscaping interface area;

c.      minimising impacts including overlooking and visual dominance through building articulation;

d.     maintaining adequate levels of natural ventilation and light penetration to habitable rooms and private open space;

e.      avoiding large blank walls on steeply sloping sites.

AO7.1

If:

a.      identified in a neighbourhood plan as a building height transition; or

b.      in the High density residential zone or the Medium density residential zone and sharing a common boundary with, or located fronting a minor road that is opposite, premises in the Low–medium density residential zone, Low density residential zone or Character residential zone.

Development provides a building height transition which complies with:

a.      a neighbourhood plan; or

b.      if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan:

i.       the building height within 10m of the common boundary is no more than 1 storey greater than the maximum acceptable outcome for building height on the adjoining site;

ii.      the building height within 20m of the common boundary is no more than 2 storeys greater than the maximum acceptable outcome for building height on the adjoining site;

iii.     all structures, except boundary fences, are set back a minimum of 4m from the common boundary;

iv.     the common boundary setback is a deep-planting area.

Refer to Figure f.

AO7.2

Development which fronts a minor road provides a building height transition that complies with:

a.      a neighbourhood plan; or

b.      if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan:

i.       the building height within 10m of the front boundary is no more than 2 storeys greater than the maximum acceptable outcome for building height on a site located on the opposite side of the minor road;

ii.      all structures, except boundary fences, are set back a minimum of 4m from the front boundary;

iii.     the front boundary setback is a deep-planting area.

Refer to Figure f.

PO8

Development separates buildings from existing or future buildings within a site or on an adjoining site to:

a.      be consistent with the form and character intent for the local area;

b.      protect residential amenity including access to natural light, sunlight and breeze;

c.      provide visual privacy to reduce the need for fixed screening.

AO8.1

Development provides building placement and design that:

a.      complies with Table 9.3.14.3.F; or

b.      positions the primary balcony or private open space to face the street frontage or rear boundary or adjoining public open space;

c.      offsets balconies or habitable rooms so that they are positioned outside the cone of vision of existing or approved habitable rooms or outdoor spaces.

Refer to Figure g and Figure h.

Note—This is demonstrated by a site context plan that includes adjoining and adjacent buildings and strategies to address separation issues.

Note— Considered site planning and design and strategies such as offsetting balconies, the location of private space, selective screening or other design elements can reduce building separation requirements.

AO8.2

Development with a secondary private open space or balcony used for drying or services is located to the side boundary with fixed screens.

PO9

Development provides a front boundary setback that:

a.      defines the street edge;

b.      creates a clear threshold and transition from public to private space;

c.      assists in achieving visual privacy to ground-floor dwellings from the street;

d.     supports the location of balconies for casual surveillance of the street and modulation of the facade;

e.      contributes to the streetscape character and landscape;

f.      relates to the existing streetscape and setback pattern.

AO9.1

Development provides a front boundary setback that complies with:

a.      a neighbourhood plan; or

b.      if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.C.

Note—Roofing of terrace areas on car parking structures are to comply with boundary setback requirements for balconies.

Note—Boundary setbacks are also influenced by minimum building separations considering the nature of the wall proposed and the number of openings or balconies.

AO9.2

Development provides a front boundary setback from a secondary street frontage that is:

a.      for a building that is 3 storeys or less, a minimum of 3m to the balcony or patio line and 4m to the main building line;

b.      for a building that is 4 storeys up to 7 storeys, 4m to the balcony or patio line and 5m to the main building line;

c.      for a building 8 storeys or more, 5m to the balcony or patio line and 6m to the main building line.

PO11

Development provides a side boundary setback that:

a.      minimises the impact of development on the amenity and privacy of neighbouring existing residents;

b.      contributes to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character;

c.      provides for landscaping, natural light, sunlight and breezes;

d.     considers future development.

AO11

Development provides a side boundary setback that complies with:

a.      a neighbourhood plan; or

b.      if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.C.

Refer to Figure d.

PO14

Development ensures that the proportion of buildings to open space and landscaping on a site:

a.      is in keeping with the intended form and character intensity of the local area and immediate streetscape;

b.      contributes to modulation of the building form;

c.      supports residential amenity including access to natural light, sunlight and breeze;

d.     supports private outdoor subtropical living;

e.      provides for communal open space;

f.      provides for deep-planting areas to retain significant vegetation and protect or establish large subtropical shade trees.

AO14

Development has:

a.      a building footprint within the building envelope;

b.      a maximum site cover that:

i.       complies with the requirements set out in a neighbourhood plan; or

ii.      if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan:

A.     where in the Medium density residential zone, Low–medium density residential zone, the Infill housing zone precinct of the Character residential zone or Low density residential zone, is 45%; or

B.     where in the High density residential zone, is 40%.

(emphasis added)

The Multiple dwelling code applies generally to multiple dwellings, regardless of the zone or neighbourhood plan area in which they are proposed. As is apparent from provisions such as s 9.3.14.2 2.e. and h., the outcomes sought in the Multiple dwelling code are linked to those set in the relevant zone and neighbourhood plan codes.
Conclusion regarding the guidance on the height, bulk, and scale of development
The provisions referred to in paragraphs [23] to [41] above guide the anticipated height, bulk and scale of residential uses on the subject land and contain specific controls in relation to built form and character.
The Medium density residential zone code, the New Farm and Teneriffe Hill neighbourhood plan code and the Multiple dwelling code all encourage multiple dwellings of up to five storeys. In particular, ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code reference a quantitative standard of five storeys and encourage development consistent with that standard. However, when read in the context of City Plan as a whole, the failure to deliver a development compliant with that quantitative standard does not demonstrate that the proposed development is non-compliant with the assessment benchmarks. The following five contextual considerations support that the quantitative standard referenced in ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code should not be regarded as express discouragement of a six-storey multiple dwelling absent an assessment of a specific proposal in its locational context.[44]
[44]That a non-compliance only arises if it follows as a matter or implication or inference having regard to the relevant context of the planning scheme is an approach to interpretation of a planning scheme that was endorsed by the Court of Appeal in Wilhelm v Logan City Council & Ors [2020] QCA 273, at [38], [39], [62]-[75].
First, there are no express provisions stating that development of greater than five storeys is not appropriate, yet in other provisions of City Plan express discouragement of that nature is provided.[45] For example, the overall outcome in s 9.3.14.2 2.h.iii. of the Multiple dwelling code requires consideration of whether a proposed development is “consistent with” five storeys. The same outcome also requires the height to be “appropriate to the strategic and local context”. In some cases, the context may permit an adherence to the quantitative standard without causing tension with the requirement to have a height that is appropriate to the strategic and local context. In other cases, a tension may arise, suggesting that the phrase “consistent with” should be read with a degree of flexibility. It should be construed as calling for development that is compatible or harmonious with community expectations informed by those height parameters, not as calling for development that is to be no more than five storeys. If it were the intention that it be construed as an immutable standard, that could have been easily achieved. The relevant provisions are not so expressed.
[45]See, for example, City Plan s 6.2.1.2 8.b.i. which states, “Development of low-medium rise, medium density residential buildings are predominantly (but no more than) 3 storeys in height”. (emphasis added)
Second, the New Farm and Teneriffe Hill neighbourhood plan code, which provides finer grained planning at a local level, only includes the quantitative standard of a maximum height of five storeys and 15 metres in acceptable outcome AO1. This is of note as compliance with acceptable outcomes is not mandated. As was observed by His Honour Judge Williamson QC in Northern Properties Pty Ltd v Brisbane City Council & Anor,[46] the structure of City Plan is such that compliance with a performance outcome can be achieved by demonstrating compliance with either the acceptable outcomes applying to the performance outcome or the performance outcome itself. The Queensland Court of Appeal made similar observations about the non-mandatory nature of acceptable outcomes in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[47]The Honourable Justice Brown observed:
“While acceptable outcomes in a planning scheme may be relevant in ascertaining the legislative intention of a planning scheme in a particular area, it depends on the terms of the provision itself.”[48]
[46][2019] QPEC 66; [2020] QPELR 877, 884 [27].
[47][2021] QCA 95.
[48]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [110] with reference to WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 at [35]-[38] per Fryber J with whom McMurdo P and Atkinson J agreed; and Bell v Brisbane City Council [2018] QCA 84; (2018) 230 LGERA 374 at [20] and [70] per McMurdo JA with whom Sofronoff P and Philippides JA agreed.
Here, it is of note that performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code does not stipulate a height maximum.
Third, while the references to five storeys provide strong guidance on what the community might expect, other provisions indicate that the appropriateness of the height, scale and form will also be informed by other facts, such as their consistency with the amenity and character existing in, and intended for, the area.[49] For example, the overall outcome in s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code requires consideration of the consistency of the height with the intended character of the Medium density residential precinct.
[49]See, for example, City Plan s 7.2.14.1.2 3.m. of the New Farm and Teneriffe Hill neighbourhood plan code.
Performance outcome PO1 of the New Farm and Teneriffe Hill neighbourhood plan code also reinforces that the appropriateness of the height is not to be judged only by reference to whether the proposed development is limited to five storeys in height.[50] That performance outcomes requires development to be “aligned with” community expectations about the number of storeys to be built, but also requires development to be of a height, scale and form that achieves the intended outcome for the precinct and contributes to a cohesive streetscape and built form character. The community expectations would be informed by the maximum number of storeys referenced by acceptable outcome AO1, but they are also informed by other matters.
[50]This finding is consistent with findings made by His Honour Judge Robertson in Norfolk Estates Pty Ltd v Brisbane City Council & Anor [2016] QPEC 9; [2016] QPELR 285 at 293 [26]-[29] with respect to the same provisions (with only slight differences in the wording).
This approach to construction of community expectations is consistent with long recognised principles applied by this Court that regard must be had to the physical environment of the locality, including all existing development, even if the existing development was approved under an earlier planning regime. To disregard existing development because it was approved prior to the planning controls would attribute to the area a character that it simply does not have.[51]
[51]Development Watch & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, 256 [231] citing The Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 414 [54]-[56].
A fourth contextual consideration is that the City Plan provides a pathway to lodge an impact assessment development application for buildings of a height greater than five storeys on land in the Medium density residential zone. Further, it does not prescribe a planning consequence for multiple dwellings that require impact assessment because they fall outside the encouraged height range. In this regard, the observations of His Honour Judge Williamson QC in Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors[52] are apposite. His Honour states that:
“The planning scheme does not, like other contemporary planning schemes, prescribe a planning consequence where a use falls outside the range of uses anticipated in a particular zone. For example, the planning scheme does not, like other contemporary planning schemes, deem such a use ‘inconsistent development’ in the zone, or as being ‘inconsistent’ with the zone code.[53] This, in my view, suggests one ought not be too ready to conclude a non-compliance with the zone code is established because, as here, the proposed uses are not expressly anticipated in the Overall outcomes of the zone code.”[54]
[52][2019] QPEC 67; [2020] QPELR 899.
[53]As was considered in Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QPELR 354; [2011] QCA 358 and Gillion Pty Ltd v Scenic Rim Regional Council [2014] QPELR 168; [2014] QCA 21.
[54]Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, 928 [167] (original citations). His Honour’s observations were considered by the Court of Appeal in Wilhelm v Logan City Council & Ors [2020] QCA 273. The Court of Appeal dismissed the application for leave to appeal, including on the basis that there was no error in the primary judge’s interpretation of the planning scheme: Wilhelm v Logan City Council & Ors [2020] QCA 273, [38], [39], [62]‑[75] per Mullins JA.
A fifth contextual consideration is the underlying planning policy intent that informs the provisions. That policy intent is outlined in the Strategic framework.[55] That is expressly confirmed with respect to the Medium density residential zone. The overall outcomes about the role of the Medium density residential zone in s 6.2.1.3 3.a. of the Medium density residential zone code states that development in the zone is to support the implementation of the policy direction set in the Strategic framework, in particular:
(a)Theme 2: Brisbane’s outstanding lifestyle and Element 2.2 – Brisbane’s housing and accommodation choices; and
(b)Theme 5: Brisbane’s CityShape, Element 5.3 – Brisbane’s Major Centres, Element 5.5 – Brisbane’s Suburban Living Areas and Element 5.8 – Brisbane’s Grown Nodes on Selected Transport Corridors.
[55]City Plan s 3.1.
In terms of policy, City Plan seeks to retain the outstanding lifestyle to which residents of Brisbane have grown accustomed. This is one of the five themes that forms the policy intent for City Plan. One of the strategic outcomes designed to retain Brisbane’s outstanding lifestyle is the goal that Brisbane neighbourhoods express their individual identity.[56] Another is that Brisbane’s housing choices will be integrated within communities and neighbourhoods of the city in a form appropriate to the locality.[57]
[56]City Plan s 3.4.1 1.b.
[57]City Plan s 3.4.1 1.i.
With respect to that element of the planning policy, City Plan identifies several specific outcomes sought to be achieved, and associated land use strategies for achieving the specific outcomes. They include:
“3.4.2 Element 2.1–Brisbane’s identity
Table 3.4.2.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

Sense of place

SO1

Brisbane has a strong urban legibility.

L1.1

…

L1.2

Larger buildings are planned for and deliberately located to enable the design and function of such buildings to contribute positively to Brisbane’s natural and built form legibility.

…

SO2

Brisbane has a clear identity as a subtropical river city.

L2.1

...

L2.2

Development design includes and protects visual and physical connections to the river and waterways, integrating internal and external spaces.

…

SO3

Brisbane is experienced as a series of varied, distinctly separate neighbourhoods.

L3.1

Distinct urban neighbourhoods are identified and described, and land use and built form tailored accordingly.

…

SO5

Brisbane’s development and infrastructure strengthens local identity.

L5.1

Development responds to and reinforces locally distinctive design, landscape, heritage, social values, patterns of development and culture.

…

Urban design and architecture

SO12

The urban design of Brisbane’s development is cognisant of the role and function of the individual area in which it is located and reinforces or reinterprets the character of that area.

L12

The design of development in centres and Growth Nodes on Selected Transport Corridors, Suburban Living Areas and Future Suburban Living Areas contributes positively to the desired or emerging character, sustainability, health and wellbeing, legibility and local context of the neighbourhood.

3.4.3Element 2.2–Brisbane’s housing and accommodation choices

Table 3.4.3.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO2

Brisbane’s housing is diverse in type and form, offering choice to different household types and income levels and individuals with specific housing needs.

L2

Residential development contributes to housing diversity, particularly supporting ageing in place and assisted living and housing suited to households on different incomes, within each neighbourhood and across the city, as outlined in the applicable zone or neighbourhood plan. …

In relation to Theme 5: Brisbane’s CityShape, the strategic outcome in s 3.7.1 1.g. states:
“Brisbane’s Suburban Living Areas represent the majority of established residential suburbs in Brisbane, where growth occurs in response to local needs and impacts on local amenity and values are carefully considered. Brisbane’s Suburban Living Areas comprise the following:
…
ii.centres, community facilities, medium and high density residential and industrial uses, as indicated in neighbourhood plans and the zoning pattern.
iii.localities identified in overlays, neighbourhood plans and the zoning patterns as having a particular character or value that is desired to be retained with very little visible change over the life of the planning scheme;
…”
The related specific outcomes sought to be achieved, and associated land use strategies, include:
“3.7.6 Element 5.5–Brisbane’s Suburban Living Areas
Table 3.7.6.1–Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO1

Suburban Living Areas experience growth in response to local context and needs including centres, community facilities, medium and high density residential and industrial uses.

L1

The zoning pattern shows the development intent that is consistent with local values, constraints and opportunities in the Suburban Living Areas.

These provisions of the Strategic framework confirm that the underlying planning policy requires consideration of the appropriateness of the proposed development having regard to the locality and the individual identity of the neighbourhood within which it is proposed.
Having regard to the contextual provisions referred to above, properly construed, ss 6.2.1.3 4.a. and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h.iii. of the Multiple dwelling code encourage multiple dwellings up to five storeys but do not set an absolute maximum to which the planning scheme requires rigid adherence. The appropriateness of a development of greater than five storeys is dependent on an assessment of whether the development is of a height, bulk and scale that is tailored to be appropriate to the strategic and local context, including the existing and intended character of the locality, such that it will be compatible with, and contribute to, a cohesive streetscape and the locality’s character and sense of place.
Is the proposed development of a height, bulk and scale that is appropriate?
The Appellants allege that the height, bulk, and scale of the proposed development is not appropriate. The submissions that the Appellants advance in support of their allegations raise two key factual considerations.
1. Is the proposed development compatible with, and does it contribute to, a cohesive streetscape, and the existing and intended character and sense of place?
2. Is the proposed development located on a suitable site?
These factual considerations are also raised by the assessment benchmarks with which non-compliance is alleged.
Is the proposed development compatible with, and does it contribute to, a cohesive streetscape, and the existing and intended character and sense of place?
The Appellants contend that the proposed development is not compatible with, and does not contribute to, a cohesive streetscape, the existing and intended character, or the sense of place in the locality.
There was a significant body of evidence that was adduced to address this issue. It included:
(a)the plans of the proposed development, which depict, amongst other things, details of the proposed building, and the footprint and site location of the proposed development and other nearby buildings;
(b)photographs and photomontages prepared by Mr Elliott;
(c)the evidence of Mr Curtis and Mr Richards, the architects retained by Azure Development Group and the Appellants respectively;
(d)the evidence of Mr Powell, Dr McGowan, and Mr Richards, being the experts retained by Azure Development Group, the Council, and the Appellants respectively, with respect to visual amenity impacts; and
(e)the evidence of Mr Schomburgk, Ms Morrissy, and Mr Brown, being the town planners retained by Azure Development Group, the Council, and the Appellants respectively.
What is the existing character of the locality and the relevant streetscape?
The architects gave evidence about the attributes of the built form and streetscape that inform the character of the locality.[58] They note that the subject land is located at the southern end of the New Farm peninsular where it adjoins Merthyr Park on the edge of the Brisbane River. It is located on Oxlade Drive, a local two-lane road. To the northeast, Oxlade Drive extends from its intersection with Brunswick Street and follows a curved alignment that reflects the path of the Brisbane River. It extends to the southwest before diverting to the northwest to intersect with Sydney Street and the commencement of Griffith Street.
[58]Exhibit 7 Architecture Joint Experts’ Report p 16 [16]-[20].
The properties along the curved southwest to southeast frontage to Oxlade Drive form a contiguous strip of properties that adjoin Merthyr Park along the edge of the Brisbane River. The architects identify that the properties have varying frontage widths, ranging from narrow widths of 15 to 20 metres to wider lots with frontages up to 30 metres. Three lots have frontages of over 50 metres, including the lot at 148 Oxlade Drive containing the development known as “Kirribilli”.
The existing development on the properties varies but is generally comprised of multiple dwellings ranging in height from two storeys to, typically, four to five storeys, with a small number of buildings at six to nine storeys. Two notable exceptions are the Kirribilli development that adjoins the subject land to the east, which is 11 storeys in height, and the “Glenfalloch” development located on the corner of Oxlade Drive and Sydney Street, which is 14 storeys in height.
The opposite side of Oxlade Drive has built form and streetscape attributes of a different character. Its character is modulated by a series of intersecting streets that extend from Oxlade Drive to the northwest. The properties located between the intersecting streets are typically smaller in area. They have varying shapes and frontage widths due to the angled intersecting streets. Despite that, the architects agree that those properties generally accommodate a more consistent built form than the existing development on the southwest and southeast side of Oxlade Drive. The building heights are typically limited to one and two storeys, although there are exceptions that include three and four-storey multiple dwellings towards the northeast end of Oxlade Drive. The architects agree that the one and two-storey developments comprise houses and multiple dwellings, with many having a refurbished and adapted “character” style that reflects the “timber and tin” heritage of the locality.

In the immediate vicinity, and northwest, of the subject land, the streetscape includes a new five-storey development that adjoins the subject land at 160 Oxlade Drive. This adjoining development is setback from the Oxlade Drive frontage behind a driveway, paving and limited landscaping. The frontage is open to the street, where it merges with the adjoining verge. Further to the northwest, there is a contemporary two-storey dwelling, and two-storey replica “character style” dwellings at 162 and 164 Oxlade Drive. At 166 Oxlade Drive, there is a relatively recently constructed multiple dwelling known as “Platinum”. It comprises buildings of five and seven storeys. To its northwest, on the corner of Oxlade Drive and Sydney Street, is the older[59] 14-storey development that is known as Glenfalloch.
[59]Glenfalloch was completed in 1962.
To the east, the streetscape in the immediate vicinity of the subject land includes the adjoining development at 148 Oxlade Drive, known as Kirribilli. It is an older 11-storey multiple dwelling that has an approximate 60-metre frontage to Oxlade Drive and an 83-metre frontage to Merthyr Park. A tennis court on the property adjoins the common boundary with the subject land but is largely screened from view along the street frontage by vegetation. The property’s frontage is otherwise partially screened from the view from the street by a wall behind which there is a driveway, carparking and planter boxes. Further to the east of Kirribilli is a vacant property, followed by multiple dwellings at 136, 130 and 128 Oxlade Drive that are four, five and seven-storeys in height respectively.
Merthyr Park adjoins the rear of the subject land along the river frontage. The park extends from Sydney Street to the Merthyr Bowls Club site. It is generally characterised by an informal linear strip of mature trees that extend along the park within a grass area that adjoins a pedestrian walkway adjacent to the Brisbane River. It includes limited street furniture and a small children’s playground. The park is also characterised by the vertical edge of development that adjoins its northern side and the contrast that this edge provides to the open character of the view to the south across the river to the development on the opposite bank.
I accept the above evidence of the architects about the built form and streetscape features of the locality. It accords with the description provided by the visual amenity experts and the town planners. It also reflects what is shown in the many photographs of the area and what I observed on the site inspection.[60]
[60]The site inspection that I conducted of the area with the representatives for the parties on the first day of the hearing does not form part of the evidence. However, it assisted me to appreciate the evidence contained in the photographs and descriptions of the locality given by the experts.
Each of the visual amenity and architecture experts express a view about the existing character of the locality.
Mr Richards’ opinions about the existing character of the locality are expressed in very similar terms in each of the Visual Amenity Joint Experts’ Report and the Architecture Joint Experts’ Report. Mr Richards says that the character on the northern side of Oxlade Drive is generally consistent with its designation in the Low-medium density residential zone. With respect to the southern side, Mr Richards does not provide a description of the overall impression of character provided by the existing built form. Instead, he focuses on each individual development and provides a detailed description of the developments known as Glenfalloch, Platinum, Kirribilli, the two dwelling houses at 162 and 164 Oxlade Drive, and the multiple dwelling at 160 Oxlade Drive. His description of those developments provides little insight into the visual impression created by the individual developments, let alone the overall character of the locality. Rather, he examines the metrics of each development such as its footprint, site cover, plot ratio, setbacks, and percentage of landscaped area.
The average person does not perceive character as a series of metrics such as plot ratio and site cover. The character of a locality and of a streetscape is the aggregate impression formed having regard to the individual features and traits of the development in the street or locality.[61] As such, the evidence of Mr Richards about the existing character is unhelpful. It does not disclose a reasoning process that assists me to move from the primary evidence of what is in the locality to a conclusion about the existing character of the locality and the streetscape.[62] It does not assist me to understand what the average person walking the street and looking about would perceive about the character of the locality and the streetscape.[63]
[61]Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42; [2016] QPELR 784, 794 [29] citing Leach v Brisbane City Council [2011] QPEC 55; [2011] QPELR 609, [34].
[62]Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62; [2017] QPELR 49, 54 [21] citing Ken Ryan & Associates Pty Ltd v Brisbane City Council [2007] QPEC 93; [2008] QPELR 147, 150 [20].
[63]This approach was adopted in Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42; [2016] QPELR 784, 794 [31] citing Lonie v Brisbane City Council [1998] QPELR 209, 212. The test was cited for the purpose of assessing streetscape character and whether a street had traditional character, but I consider it a helpful approach to the assessment of streetscape character generally.
By way of contrast, Mr Powell and Dr McGowan provide a description of the overall impression of the existing character that is derived from the existing built form and streetscape elements.
Mr Powell opines that the taller buildings on the southern side of Oxlade Drive create a wall of development that, when combined with associated landscaping, tends to obstruct clear views of the Brisbane River from Oxlade Drive. The wall of development provides a noticeable contrast with the predominantly low-rise form on the northern side of Oxlade Drive. Mr Powell says that when travelling southwest along Oxlade Drive toward the subject land, Kirribilli is apparent at the centre of the vista for the 350-metre journey between Turner Avenue and Hazelwood Street, until turning towards the subject land, at which stage Kirribilli and Glenfalloch both clearly come into view. In terms of the journey in the opposite direction, travelling south along the final 120-metre leg of Griffith Street toward Sydney Street, Glenfalloch dominates the centre of the vista. As one passes Glenfalloch and travels the 150-metre journey from Sydney Street south-east along Oxlade Drive toward the subject land, Kirribilli remains at the centre of the vista. Mr Powell supports this description of the existing character with photographs of the area.
Dr McGowan describes the general locality as exhibiting a varied character. He attributes the varied character to four factors. First, the contrast in street patterns. The northern and eastern part of the southwestern corner of New Farm (being an area defined by Dr McGowan as south of Merthyr Road, west of Brunswick Street and otherwise defined by the Brisbane River) has a regular grid street pattern. Conversely, the street pattern in the western and southern part of the area is less regular, with deviations in street alignment, including in the alignment of Oxlade Drive. Second, the land between Oxlade Drive and the river is characterised by medium-high rise development, as opposed to the remainder of the area being characterised by predominantly low-rise development. The third factor is the range of building forms, including detached housing, attached housing and multiple dwelling units. Fourth is the range of building ages, with some prominent older buildings such as Kirribilli and Glenfalloch.
More proximate to the subject land, Dr McGowan says the character of the area is defined by the distinctive difference in height and development type on each side of Oxlade Drive and the river. He explains that the river creates a discrete “fringe” between the built form and the river edge. It also informs the changes in alignment of Oxlade Drive, which runs parallel to the river edge.
Dr McGowan opines that the development on the northern side of Oxlade Drive, between Hazelwood Street and Sydney Street, has a consistency in terms of building type and scale. By way of contrast, development on the southern side of Oxlade Drive exhibits a varied character. There is some consistency in setbacks to the road on the southern side of Oxlade Drive, but the consistency is disguised to varying degrees by the street trees and the changing alignment of the road. Otherwise, there is a variation in building heights, building separation, relationship of building bulk to site area (and the associated space around the buildings), building type and form, width of façade presented to Oxlade Drive, and setbacks.
In support of his overall assessment, Dr McGowan describes the visual contribution certain buildings make to the overall character. He notes that the Glenfalloch and Kirribilli buildings are prominent in the local area because of their much greater height, width, and broad facade presentation to Oxlade Drive. Glenfalloch is 14 storeys high and about 47.5 metres long. Kirribilli is 11 storeys high and about 37.5 metres long. The low site cover of Glenfalloch and Kirribilli and the open space behind them creates a space around the buildings that contributes to their prominence. Dr McGowan opines that the stepping form of the Platinum building (at 168 Oxlade Drive) is not replicated in the local area. It assists in providing a visual transition between Glenfalloch and the low-rise development further south. The Platinum building has a noticeably greater front setback compared to others on the southern side of Oxlade Drive between Sydney Street and Hazelwood Street. The two houses at 162 and 164 Oxlade Drive are narrow compared to the other buildings on the southern side of the street. The recent development at 160 Oxlade Street is five storeys. Dr McGowan notes that it is narrower than Platinum and wider than the nearby houses. It also has a higher site cover than Platinum.
Like Mr Powell and Dr McGowan, Mr Curtis notes that the curved alignment of Oxlade Drive is relevant to the existing character of the locality. It prevents receptors from viewing the full length of the streetscape at any one time. Consequently, in Mr Curtis’ opinion, the Oxlade Drive view catchment is comprised of connected segments where receptors move sequentially from one to the next. The elements within each segment are primarily viewed in relation to each other rather than as part of the entire length of Oxlade Drive.
Mr Curtis says that, given the curved alignment of Oxlade Drive, the subject land is located within an approximate visual catchment that extends between the intersection of Oxlade Drive with Sydney Street in the northwest and Hazelwood Street in the east. He opines that the relationship of the proposed development to the existing built form within this visual catchment will be most relevant to its compatibility with, and contribution to, a cohesive streetscape. I accept his opinion. It accords with what is apparent from the many photographs in evidence before me.
Mr Curtis observes that the existing development along the southwest and southeast side of Oxlade Drive is generally more intensive and includes typical building heights of up to four to five storeys. However, he says that building heights of five to seven storeys, and up to 14 storeys, are prominent within the subject land’s visual catchment. Further, Mr Curtis says that the differences in adjoining building heights are relatively abrupt in some locations, which creates a contrast in building scale. He opines that these contrasts diminish the cohesiveness of the streetscape, resulting in a discordant built form character. In contrast, the existing development on the opposite side of Oxlade Drive is generally more consistent with respect to its height, bulk, and scale. Mr Curtis opines that this results in a more cohesive streetscape along the northwest side of Oxlade Drive within the subject land’s visual catchment. Mr Curtis considers that the significant differences in the general built form between the two sides of Oxlade Drive are a defining aspect of its character. He says the differences would inform the community expectations about the bulk and scale of potential development anticipated along each side of Oxlade Drive.
Mr Curtis opines that notwithstanding the discordant character of the streetscape along the southwest and southeast side of Oxlade Drive and the disparity in bulk and scale between the opposite sides, the existing development along both sides of Oxlade Drive provides a vertical edge to the street that reinforces its desirable spatial character. He says, although discordant, the character is enhanced by landscaping that contributes to the scale and amenity of the street as a pedestrian space.
Mr Curtis also addresses the concept of a “sense of place”. It is not a defined term under City Plan. Mr Curtis opines that it refers to how a person engages with the qualities that characterise a place. He says that the spatial quality of the street, although varying, is generally well defined by a contiguous vertical edge of taller development along the southwest and southeast side of Oxlade Drive and a less robust, but still adequate, modulated edge of lower development along the opposite side of the street. Mr Curtis opines that a factor in the sense of place is the contrast between the variation of the built form on the southern side of Oxlade Drive (which includes abrupt differences in the building heights, visual character and age that result in visual discordance) with the consistency of the built form on the northern side of the street. Given the diversity of built form on the southern side of Oxlade Drive informs the local sense of place, Mr Curtis opines that the existing sense of place is likely to be relatively resilient to changes to the streetscape, provided the changes do not exceed the degrees of difference that already exist and do not exacerbate the current discordance or diminish the desirable spatial quality of the street.
I accept the above evidence of Mr Powell, Dr McGowan, and Mr Curtis about the existing character of the area, the streetscape, and the sense of place. Their opinions are supported by detailed and cogent analysis and are consistent with what can be observed in the many photographs of the area.
I also accept the evidence of Ms Morrissy that the area does not have a consecutive or consistent run of building heights. This is demonstrated well by the attachments in Mr Brown’s report and the height comparison diagram that is included as Figure 57 in the Architecture Joint Experts’ Report. There is a lot of “stepping” of the heights between buildings on the southern side of Oxlade Drive. I accept Ms Morrissy’s opinion that it is a characteristic of this neighbourhood precinct.
The New Farm and Teneriffe neighbourhood plan code summarises the existing character well when it refers to “New Farm’s characteristic diversity of built form”.
What is the intended character?
Dr McGowan aptly observes that the zone and precinct designations of the local area broadly reflect the existing pattern of development. There is a clear distinction between the intended character on the northern side of Oxlade Drive and that on the southern side. Land on the northern side is predominately included 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. Land on the southern side of Oxlade Drive (between Sydney Street and Hazelwood Street), including the subject land, is included in the Medium density residential zone and the Medium density living precinct of the New Farm and Teneriffe Hill neighbourhood plan area. Merthyr Park is included in the Metropolitan precinct of the Open space zone and the Parks precinct of the New Farm and Teneriffe Hill neighbourhood plan area.
Importantly, for reasons provided in paragraphs [22] to [57] above, the intended character is not necessarily limited to buildings that are no greater than five storeys in height. City Plan is replete with provisions that outline the importance of new development being designed to be compatible with existing built form and to respond to the characteristics of the locality in question.[64] Further, City Plan explicitly recognises that the existing built form in this locality is diverse.[65]
Is the proposed development appropriate having regard to the existing streetscape and character of the locality and the intended character?
[64]See the overall outcomes in ss 6.2.1.3 4.a., 5.a., c., d. and e. of the Medium density residential zone code; the overall outcomes in ss 7.2.14.1.2 3.b, f. and m. and performance outcomes PO1, PO7, PO8 and PO10 of the New Farm and Teneriffe Hill neighbourhood plan code; and the overall outcomes in ss 9.3.14.2 2.e., h. and j. and performance outcomes PO5, PO6, PO7, PO9 and PO11 of the Multiple dwelling code.
[65]City Plan s 7.2.14.1.2 3.a.
Before turning to the evidence that addresses whether the proposed development appropriately respects the existing streetscape and character of the locality and the intended character, it is convenient to make some general observations about the Appellants’ submissions.
General observations about the Appellants’ submissions
The Appellants’ submission that the proposed development is not compatible with, and does not contribute to, a cohesive streetscape or the existing character and sense of place is premised on an approach that mirrors that adopted by their architectural and visual amenity expert, Mr Richards. Although the Appellants accept that the proposed development will contribute to the existing mixed building height, bulk, and scale, they rely on four observations about the metrics of the proposed development in support of their submission.
First, the proposed development will have a significantly larger plot ratio than the existing buildings between, and including, Kirribilli and Glenfalloch.
Second, at 61 per cent, the proposed development has a much greater site coverage than other buildings on the southern side of Oxlade Street between Kirribilli and Glenfalloch.
Third, the Appellants say the proposed development is a “block” with no offsetting characteristics, such as generous setbacks, slender side elevations or low site cover, which they say is a feature of other development on the southern side of Oxlade Drive.[66]
[66]See the comparison in paragraphs 27 to 31 of the Written Submissions on behalf of the Appellants.
Fourth, the Appellants say that the proposed development equates to a seven or eight-storey building because it has adopted floor-to-floor heights of 3.3 to 3.9 metres rather than the “standard” floor-to-floor height of three metres.
In short, the Appellants’ position is premised on a disparity between the metrics of the proposed development and other nearby buildings. This is not an appropriate approach. The relevant assessment benchmarks with which non-compliances are alleged do not contain quantitative standards to which development must adhere. Rather, the assessment benchmarks call for an evaluative judgment about the qualitative contribution the proposed development would make to the streetscape and the character of the locality.
What was the evidence on this issue?
The Appellants invite me to rely on the evidence of Mr Richards generally in relation to this issue. Mr Richards addressed the issue in the Architecture Joint Experts’ Report and the Visual Amenity Joint Experts’ Report. His evidence on this issue in each report is largely the same. He opines that the proposed development is of a height, bulk, scale, and form that does not achieve the intended planning outcomes. There are three factors that underpin his opinion.

It seems from the Updated List of Remaining Issues for Determination[102] that the Appellants allege that the height, bulk, and scale of the proposed development will not provide opportunities for adequate deep planting and other landscaping. The Appellants’ submissions on this issue were brief. They complain that the front boundary setback is insufficient to achieve a large tree like that out the front of Platinum. Consequently, they say the proposed development does not meet acceptable outcome AO7.2 b.iii. of the Multiple dwelling code, which requires that the front boundary setback is a deep planting area.
[102]Exhibit 28B.
The Appellants’ approach is flawed. Failure to comply with an acceptable outcome does not, of itself, demonstrate a non-compliance with assessment benchmarks that warrants refusal. Although I do not accept the validity of the Appellants’ approach to this issue, I will nevertheless consider whether the proposed development incorporates appropriate landscaping having regard to the relevant assessment benchmarks and the evidence.
One relevant assessment benchmark put in issue by the Appellants is the overall outcome in s 6.2.1.3 5.h. of the Medium density residential zone code. It states:
“h.Development provides quality private and public open spaces and landscaping, including deep planting, which softens the scale of the dwellings, provides spaces for outdoor activity areas and encourages outdoor living.”
Guidance on landscaping and deep planting is also provided in performance outcomes PO7 and PO11 of the Multiple dwelling code.[103] They require development to:
(a)provide buildings that are reduced in bulk and form to provide a transitional built form of compatible scale which protects the amenity of lower density residential areas bordering medium and high density residential areas by, amongst other things, providing a heavily landscaped interface area; and
(b)provide a side boundary setback that allows for the incorporation of landscaping.
[103]See the extract at paragraph [40] above.
The proposed development incorporates landscaping of 504.6 square metres (equating to 46 per cent of the area of the subject land). That includes 146.1 square metres (or 13.3 per cent of the subject land) for deep planting. Deep planting is proposed within the rear and side setbacks of the proposed development.
The area proposed to be dedicated to deep planting meets the minimum requirement of 10 per cent of the site area as required under acceptable outcome AO30.2 of the Multiple dwelling code.
During his oral testimony, Mr Richards sought to cast doubt on the likelihood that this extent of deep planting would be achieved. He suggested that the proposed deep planting within the side setback may not be achieved because of the basement for the building. His opinion was premised on speculation that, when constructed, the basement walls might need to be thicker than those shown on the plans. Mr Richards did not undertake any detailed assessment of this issue. It is not clear that he holds the necessary qualifications to do so. His attempt to raise the issue suggests a lack of impartiality on his part, particularly having regard to condition 21 of the development permit originally granted by the Council and accepted by Azure Development Group without challenge. Condition 21 requires:
“Deep planting areas as shown on the approved drawings, open to sky and with no underground development including retaining wall footings.
Canopy tree species capable of growing to a mature size that will be complementary in scale and height to the building form, or respond to the size and location of the deep planting area/s.”
This condition is consistent with the requirements in performance outcome PO30 of the Multiple dwelling code. That performance outcome deals specifically with deep planting, whereas performance outcome PO7 deals with landscaping as part of an outcome designed to protect amenity of lower density residential areas bordering medium density residential areas.
In addition to the identified deep planting, the proposed development provides landscaping in the front setback and in planter boxes at each level of the building.
The landscaping spaces within the front setback include opportunities for tree planting. Both Mr Curtis and Dr McGowan opine that the 1.5-metre-deep raised planter box will be able to accommodate medium sized trees.
In terms of the visual impact of the landscaping, Mr Curtis opines that the extent and location of the landscaping for the proposed development contributes to the landscape amenity of the setting and the cohesiveness of the built form’s integration into the local area.[104] He says it will provide an appropriate interface with Oxlade Drive and Merthyr Park. In the Architecture Joint Experts’ Report, he provides detailed and cogent explanations for his opinion.
[104]See paragraph [103] above for further detail of his evidence.
Dr McGowan opines that the landscaping in the planter boxes, together with the existing street trees, will soften the building’s interface with the streetscape and will integrate the built form. He says it will make a positive contribution to the appearance of the streetscape.[105]
[105]Transcript of Proceedings, McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 1747/20, 1749/20 and 1750/20, Kefford DCJ, 8 February 2021) 57.
I accept the evidence of Mr Curtis and Dr McGowan with respect to the adequacy of the landscaping. Their evidence is consistent with the photomontages.
For the reasons provided above, I am satisfied that the landscaping within the front setback will make an appropriate contribution to the streetscape and will appropriately protect the amenity of those nearby, including those in the lower density residential areas on the northern side of Oxlade Drive. I am also satisfied that the proposed development provides adequate landscaping and deep planting overall, and in those respects, complies with the overall outcome in s 6.2.1.3 5.h. of the Medium density residential zone code and performance outcomes PO7 and PO11 of the Multiple dwelling code.
Does the proposed development comply with the overall outcomes for the Medium density living precinct of the neighbourhood plan?
The overall outcomes for the Medium density living precinct in s 7.2.14.1.2 6 of the New Farm and Teneriffe Hill neighbourhood plan code include:
“a.This precinct is predominantly medium density, taking advantage of the benefits of high levels of accessibility and visual amenity that characterise this area.
b.Development provides visual and physical links to the river.”
The Appellants allege non-compliance with each of these provisions. They make the following submissions:
“104.It is submitted that if medium density is related only to population per area, as the town planners have assumed it is, then this OO(6)(a) outcome is met. Given there is not necessarily a relationship between density on the one hand and height, bulk and scale on the other (a very low density development could have a very large height, bulk and scale), it is submitted this is not a basis for exceeding community expectations of 5 levels and 15 metres.
105.However, if it is read together with PO8, there appears to be a bulk and size aspect included in “medium density” when used in this context. It is submitted this is the appropriate interpretation to enable a harmonious reading of these provisions. In that event, medium density nature involves development up to 5 storeys in accordance with the MDC Code provisions. The proposal does not meet this benchmark.
106.The proposed development does not provide visual and physical links to the river for the public. Accordingly, OO(6)(b) is not met.”[106]
[106]Written submissions on behalf of the Appellants, amended to reflect the correction recorded in Transcript of Proceedings, McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 1747/20, 1749/20 and 1750/20, Kefford DCJ, 12 February 2021) 47.
As is apparent from these submissions, the Appellants position with respect to overall outcome 6.a. is premised on its assertion that “medium density” is to be understood as importing a limitation of development up to 5 storeys.
The Court of Appeal confirmed in AAD Design Pty Ltd v Brisbane City Council[107] and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd[108] that the established principles and canons of statutory construction apply to the construction of planning documents. In AAD Design Pty Ltd v Brisbane City Council,[109] Chesterman JA observed that it is not unduly pedantic to begin with an assumption that words mean what they say. As the High Court has re-iterated on numerous occasions, the starting point for ascertaining the meaning of a statutory provision is the text of the provision considered in light of its context and purpose.[110]
[107][2012] QCA 44; [2013] 1 Qd R 1.
[108][2014] QCA 147; [2014] QPELR 686, 698 [52].
[109][2012] QCA 44; [2013] 1 Qd R 1, 11-2 [37].
[110]See, for example, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20].
The context to which the Appellants refer with respect to the meaning of overall outcome 6.a. is that provided by performance outcome PO8 of the New Farm and Teneriffe Hill neighbourhood plan code. It, and the related acceptable outcome, states:

PO8

Development ensures building size and bulk is consistent with the medium density nature of the locality and retains an appropriate residential scale and relationship with other precincts in the neighbourhood plan area.

AO8

Development has a maximum gross floor area equal to the area of the site.

There are three relevant observations that can be made about these provisions. Each tell against the construction urged by the Appellants.
First, neither performance outcome PO8 nor acceptable outcome AO8 contains a height limit. If the drafters had intended “medium density” to be construed as development no more than five storeys in height, it would have been simple to include such a constraint in either of these provisions. The only provision of the New Farm and Teneriffe Hill neighbourhood plan code that contains such a constraint is acceptable outcome AO7. However, the related performance outcome (PO7) focusses on maintenance of views, not the density of the development.
Second, performance outcome PO8 must be construed in the context of acceptable outcome AO8. That acceptable outcome indicates that an acceptable means of achieving a medium density development is by providing development that has a maximum gross floor area equal to the area of the site. This type of control is consistent with the ordinary construction of the term “medium density”, being a parameter concerned with the density of population to be accommodated.
Third, performance outcome PO8 contains two substantive requirements. One is that the building bulk and size is consistent with the medium density nature of the locality. The second requires the retention of an appropriate residential scale and relationship with other precincts. In concert, these requirements ensure that, to the extent that a taller building might be considered of an appropriate residential scale, its bulk is otherwise adjusted (for example by having a small footprint) so that the overall population density is consistent with the medium density nature of the locality. These requirements do not support the Appellants’ submission about an implied limitation of five storeys.
Having regard to those matters, I do not accept the Appellants’ submissions. The text of overall outcome 6.a., read in its context, does not indicate that “medium density development” should be read as limiting development to that which is no more than five storeys in height.
I am satisfied that the evidence establishes that the proposed development is medium density. While Mr Richards opines that the proposed development is high density development, his opinion is founded on the implied five storey height limitation. As such, I do not accept his evidence. The density of the development was also the subject of evidence from all three town planners. They are each well qualified to express an opinion about the density of the development. They all agree that the proposed development is a medium density development. Their evidence on this issue was not challenged and I accept it.
Further, even if I am wrong about the proper construction of overall outcome 6.a of the New Farm and Teneriffe Hill neighbourhood plan code, the error is immaterial to the outcome. There is, nevertheless, compliance with this overall outcome as the proposed development is not such as to prevent the achievement of a predominance of medium density development in the Medium density living precinct.
The Appellants’ submissions about overall outcome 6.b. of the New Farm and Teneriffe Hill neighbourhood plan code are brief. Their allegation of non-compliance is premised on visual and physical links to the river “for the public”. These words do not appear in the overall outcome. The Appellants do not articulate the basis on which the provision should be given a meaning other than its ordinary meaning.
Further, the context in which the provision appears does not support the Appellants’ construction. It is apparent from overall outcome 6.c. that when the drafters intend that there be public access, they say so. That outcome also applies to the Medium density living precinct and requires that:
“New developments north of Merthyr Road retain areas along the river frontage for public access.”
(emphasis added)
I accept the evidence of Mr Schomburgk that the design of each of the units in the proposed development provides open areas facing the river, and that there is a pathway proposed along the western side of the building that provides a physical connection to Merthyr Park and the river beyond. His evidence is consistent with what can be observed on the plans.
For the reasons provided above, I am satisfied that the proposed development complies with the overall outcomes in s 7.2.14.1.2 6.a. and b. of the New Farm and Teneriffe Hill neighbourhood plan code.
Conclusion regarding assessment against the relevant assessment benchmarks
It is incontrovertible that the proposed development exceeds the five storeys encouraged in ss 6.2.1.3 4.a and 5.b. of the Medium density residential zone code and s 9.3.14.2 2.h. of the Multiple dwelling code. At first blush, the exceedance of that quantitative standard might suggest that the proposed development is an over development of the subject land. It certainly highlights the need to scrutinise the details of what is proposed with care. That is made clear by the fact that, at six storeys, the proposed development requires impact assessment, not just code assessment.
It will be apparent from my analysis above that, having carefully considered the details of the proposed development, I am satisfied that the proposed development complies with the relevant assessment benchmarks identified by the parties. Further, even if a development of six storeys should properly be regarded as resulting in a degree of non-compliance, I do not regard it to be such as to warrant refusal in this case. This is because the exceedance of the quantitative standard encouraged in City Plan does not give rise to any unacceptable impacts. The proposed development achieves the underlying planning goals that inform the encouragement of a five-storey standard. In those circumstances, and in the absence of any allegation of relevant matters that support refusal, I am satisfied that the exercise of the broad discretion favours approval of the proposed development.
Are there relevant matters that support approval?
Azure Development Group raise five matters that they say are relevant matters that favour an approval of the proposed development. They are:
(a)the high quality of the proposed development, including the qualities of the subject land;
(b)the compliance of the proposed development with the provisions of City Plan that call for qualitative outcomes;
(c)the absence of any unacceptable amenity impact for the local community and surrounding residents caused by the proposed development;
(d)the achievement of outcomes sought by the South East Queensland Regional Plan with respect to increased densities and housing choice; and
(e)the existence of an economic need for the development.
Each of these factors are relevant matters for the purpose of assessing the application under s 45(5)(b) of the Planning Act 2016. The issue is whether they have been established on the evidence and, if so, how they inform the exercise of the discretion.
Considering my findings with respect to an assessment of the proposed development against the assessment benchmarks, and the conclusion I express in paragraph [228] above, it is unnecessary for me to deal at length with each of the relevant matters. It is sufficient to make four observations.
First, I am satisfied that the relevant matters referred to in paragraphs [229](a) to [229](c) are established on the evidence. In that respect, the evidence of Mr Schomburgk[111] and Ms Morrissy[112] satisfies me that, although the proposed development is greater than five storeys, there is a high level of compliance with the overall outcomes of the Medium density residential zone code with respect to location, use and development form. Ms Morrissy provides a convenient summary of the opinions expressed by Mr Schomburgk and herself, which evidence I accept. Relevantly, Ms Morrissy says:
(a)the subject land is well located to accommodate medium density multiple dwellings as New Farm is an inner-city suburb well serviced by public transport, with convenient, walkable access to a range of services, facilities and recreational and lifestyle opportunities;
(b)the proposed development contributes to urban consolidation and neighbourhood walkability;
(c)as a medium density dwelling, the proposed development would provide a level of amenity reasonably expected in a medium density residential environment. Matters of privacy, safety and comfort (including shadowing) have been considered, assessed, and responded to through siting and design;
(d)the proposed development incorporates a variety of communal open spaces, private open spaces and landscape areas that are functional, encourage outdoor living and aesthetically complement the design of the multiple dwelling; and
(e)the design of the proposed development includes opportunities for surveillance over public spaces and ground level activity given the presence of a ground level unit and communal open space.
[111]Exhibit 9 Joint Town Planning Report pp 62-4 [256] and Exhibit 10 p 5 [25].
[112]Exhibit 9 Joint Town Planning Report p 64 [257] and Exhibit 16 p 4 [3.0.2].
These are considerations that, to an extent, inform the assessment of the proposed development against the assessment benchmarks. They are also relevant matters that favour approval of the proposed development. Having regard to the evidence of Mr Curtis, Mr Powell and Dr McGowan referred to above, I am satisfied that the proposed development delivers a better outcome than the bare minimum that would be delivered were the development to adhere to the acceptable solutions.

Second, although I do not consider the failure to limit the proposed development to “medium rise” (or no more than five storeys in height were it properly so characterised) results in a non-compliance with the assessment benchmarks. I agree with Ms Morrissy that such a non-compliance would not warrant refusal in any event. Ms Morrissy’s opinion in that regard is founded on five matters, each of which have been established on the evidence. They are that the proposed development:
(a)achieves a high level of compliance with other applicable zone code provisions;
(b)will provide a high-quality design outcome;
(c)is appropriate having regard to the locational context, which includes a range of building heights of various designs and ages;
(d)will provide a successful design response in the zone (in the immediate local area) by providing a transition or step-down or up to existing legacy high-rise buildings on Oxlade Drive. This approach has been adopted, is apparent and does not result in adverse amenity or character impacts to streetscape or local identity; and
(e)deviates from the quantifiable height provision to an extent that would not result in a dramatic difference or variance to character or amenity outcomes in the area.
The above considerations are weighty matters that favour approval of the proposed development.
Third, I am satisfied that the relevant matter referred to in paragraph [229](d) is established on the evidence. In this respect, I accept the opinion of Mr Schomburgk that approval of the proposed development would achieve outcomes sought by the South East Queensland Regional Plan. It does so by providing increased density of development close to infrastructure and services, housing choice and diversity and housing described in the South East Queensland Regional Plan as the “missing middle”. I do not consider this to be a particularly weighty consideration, but it favours approval, nevertheless.
Fourth, I am satisfied that the relevant matter referred to in paragraph [229](e) is established on the evidence, and that it supports approval. The general principles that inform and guide an assessment of need are well settled. They are conveniently summarised by His Honour Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council & Anor.[113]
[113][2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].
With respect to this matter, I was assisted by the evidence of Mr Stephens, the economist retained by Azure Development Group, and Mr Caulfield, the director of Place Estate Agents in Kangaroo Point, who specialises in sales and marketing of high-end luxury residential apartments in inner city Brisbane, particularly Kangaroo Point and New Farm. Their uncontested evidence persuades me that the proposed development will address a latent demand for premium apartments at New Farm. The greater than standard ceiling heights adopted in the design of the proposed development is an important attribute for the luxury market. Further, I accept the evidence of Mr Caulfield that the segment of the luxury market attracted to riverfront property at New Farm does not regard other riverside suburbs to be comparable alternatives. I accept the evidence of Mr Stephens that the subject land has locational attributes suited to a premium buyer market that are not easily replicated elsewhere. Although this represents only a small segment of the market, it is nevertheless a distinct and recognisable segment.
The Appellants submit that this need could be met by a compliant development. This submission assumes that the public interest embodied in a planning scheme is capable of being quantified by analysing the benefits and dis-benefits of a particular hypothetical development that delivers on identified standards, such as height parameters and setbacks, so that it can then be weighed against the public interest associated with the proposed development. Further, the allegation is founded on an assumption that, in the event of a refusal, Azure Development Group will choose to develop the subject land with the same standard of finishes and architectural treatments but in a building with a footprint that accords with all applicable acceptable outcomes.
The Appellants’ submission ignores the reality that, in assessing the acceptability of the proposed development, and whether there is a need for it, a local government is not presented with a binary choice between a non-compliant development and an alternative compliant development. Planning schemes do not advance a particular design option or solution for a particular site. They also do not compel development to proceed. If a developer seeks to pursue development of a parcel of land, planning schemes articulate planning goals and stipulate controls that guide the parameters of the development in performance-based terms.
Should the development application be approved in the exercise of the planning discretion?
Whether an approval is, or is not, in the public interest is a question of fact to be determined in the exercise of the planning discretion. The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016. Not every non-compliance is contrary to public interest or will warrant refusal. The extent to which a flexible approach will prevail in the face of any given non-compliance with an assessment benchmark will turn on the facts and circumstances of each case, which includes a consideration of the “relevant matters”.
Here, the Appellants contend that, in the exercise of the discretion, the proposed development should be refused for six reasons.
First, the proposed development exceeds the acceptable outcomes within City Plan in relation to height (both in metres and storeys), plot ratio, site coverage, front setbacks, side setbacks and rear setbacks. They say that although that does not in itself result in non-compliance, it is an indicator that the scale of the proposed development is an overdevelopment of the subject land.
Second, the Appellants say the overdevelopment of the subject land has consequences. It has significant adverse impacts on the views of the residents of Kirribilli and the character of the locality.
Third, the Appellants say the proposed development is not consistent with community expectations.
Fourth, the Appellants assert there is no community or economic need for that part of the proposed development that exceeds community expectations, which they say is an additional three apartments. The Appellants say any need identified is also met by a compliant development.
Fifth, the Appellants contend that any architectural merit attributable to the proposed development cannot disguise the excessive height, bulk, and scale of the proposed development. It is still a bulky building and a building which exceeds community expectations for a building on the subject land.
Sixth, the Appellants allege that Azure Development Group and the Council rely heavily on the transition or gradation in height they assert is provided by this building between the adjacent Kirribilli (with its height of 11 storeys) and 160 Oxlade Drive (at five storeys in height). With respect to that issue, the Appellants say there is no provision in the planning scheme which requires such a gradation, nor is gradation part of the character of the existing locality.
As would be apparent from the reasons I have provided above, I do not accept any of these allegations.
I am satisfied that, in the circumstances of this case, a balanced decision in the public interest favours approval of the proposed development.
Conclusion
Azure Development Group has discharged its onus.
My orders will be as follows:
1. Appeals numbered 1747 of 2020, 1749 of 2020 and 1750 of 2020 are dismissed.
2. The decision of Brisbane City Council notified by the decision notice addressed to Azure Development Group Pty Ltd dated 22 May 2020 is confirmed.

CITATION:	McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42
PARTIES:	PETER ANTHONY MCKAY (Appellant) v BRISBANE CITY COUNCIL (Respondent) and AZURE DEVELOPMENT GROUP PTY LTD (Co-respondent) AND RENO ANTHONY PANOZZO (Appellant) v BRISBANE CITY COUNCIL (Respondent) and AZURE DEVELOPMENT GROUP PTY LTD (Co-respondent) AND PETER MICHAEL JENSEN (Appellant) v BRISBANE CITY COUNCIL (Respondent) and AZURE DEVELOPMENT GROUP PTY LTD (Co-respondent)
FILE NO/S:	1747 of 2020, 1749 of 2020 and 1750 of 2020
DIVISION:	Planning and Environment
PROCEEDING:	Appeals
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	23 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8, 9, 11 and 12 February 2021 and further exhibits received 2 March 2021 and 12 July 2021 and further submissions received 15, 19 and 20 July 2021
JUDGE:	Kefford DCJ
ORDER:	I order: 1. Appeals numbered 1747 of 2020, 1749 of 2020 and 1750 of 2020 are dismissed. 2. The decision of Brisbane City Council notified by the decision notice addressed to Azure Development Group Pty Ltd dated 22 May 2020 is confirmed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against approval of a development application seeking a development permit for material change of use for a six storey multiple dwelling in the Medium density residential zone – whether the proposed development is of an appropriate height, bulk and scale – whether the proposed development will contribute to a cohesive streetscape – whether the proposed development will be compatible with the existing and intended character of the area – whether the proposed development will cause any unacceptable amenity impact – whether the proposed development provides for adequate deep planting and landscaping – whether there is a need for the proposed development – whether there are relevant matters that support approval of the proposed development – whether the development application for the proposed development should be approved in the exercise of the planning discretion
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 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, applied AclandPastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, applied Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, cited Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v Brisbane City Council & Ors [2008] QPEC 45; [2009] QPELR 35, approved Development Watch & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25; [2021] QPELR 200, approved Heath v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, approved Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42; [2016] QPELR 784, approved Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62; [2017] QPELR 49, 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 Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, approved Norfolk Estates Pty Ltd v Brisbane City Council & Anor [2016] QPEC 9; [2016] QPELR 285, considered Northern Properties Pty Ltd v Brisbane City Council & Anor [2019] QPEC 66; [2020] QPELR 877, approved Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, approved Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, applied Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47; [2015] QPELR 21, approved Wilhelm v Logan City Council & Ors [2020] QCA 273, applied Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:	J Ware for the Appellants R Yuen for the Respondent D Gore QC and D Whitehouse for the Co-respondent
SOLICITORS:	Anderssens Lawyers for the Appellants City Legal for the Respondent Clinton Mohr Lawyers for the Co-respondent