Nairn v Brisbane City Council
[2024] QPEC 46
•7 November 2024
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Nairn & Anor v Brisbane City Council [2024] QPEC 46
PARTIES:
LENA ELIZABETH NAIRN AND BRADLEY NAIRN
(Appellants)
v
BRISBANE CITY COUNCIL
(Respondent)
FILE NO/S:
2026 of 2022
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
7 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
15, 16 and 17 October 2024
JUDGE:
Kefford DCJ
ORDER:
THE APPEAL IS DISMISSED. THE APPELLANTS’ DEVELOPMENT APPLICATION FOR A DEVELOPMENT PERMIT FOR A MATERIAL CHANGE OF USE IS REFUSED.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s decision to refuse a development application for a development permit for a material change of use for a domestic enterprise – where the application was made to regularise the currently unlawful use – whether the proposed development is an appropriate land use on the subject land – whether the proposed development is out of character with the locality – whether the proposed development supports the implementation of the policy direction for the planned Greenspace System – whether the proposed development cuts across the clear land use intent for the subject land – whether the proposed development involves unacceptable ecology impacts – whether the mitigation measures proposed provide a sound town planning reason to not give the provisions of City Plan about ecology their full force and effect – whether the discretion should be exercised to impose additional conditions to address non-compliances with City Plan – whether there are any relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016 – whether the proposed development should be approved in the exercise of the discretion
LEGISLATION:
Planning Act 2016 (Qld) ss 45, 59, 60, 65
Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47
Planning Regulation 2017 (Qld) s 31(1)(f)
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; [2021] QPELR 1003, applied
Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965, approved
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, applied
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied
Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, approved
Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, applied
Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, approved
Cook v Woollongong City Council (1980) 41 LGRA 154, applied
Fidler v First Secretary of State [2005] 1 P & CR 169, applied
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, applied
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, applied
Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, applied
Kelly Consolidated Pty Ltd v Ipswich City Council & Anor [2024] QPEC 12, approved
Lifnex Pty Ltd and Oil Recyclers Australian Pty Ltd v Ipswich City Council [1998] QPELR 517, applied
Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, applied
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
Proctor v Brisbane City Council (1993) 81 LGRA 398, applied
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied
Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied
Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:
E Morzone KC and M McDermott for the Appellants
M Batty and N Batty for the RespondentSOLICITORS:
P&E Law for the Appellants
City Legal for the Respondent
TABLE OF CONTENTS
Introduction
What is the applicable framework for the decision?
What are the issues in dispute?
What is the character of the subject land and the locality in which it sits?
What is approved and lawful on the subject land?
What does the proposed development entail?
Is the proposed development an appropriate land use on the subject land?
Is the proposed development out of character with the locality?
Does the proposed development support the implementation of the policy direction for the planned Greenspace System?
What is policy direction for the planned Greenspace System?
Does the proposed development support the planned Greenspace System?
Does the proposed development cut across the clear land use intent for the subject land?
What is the significance of the non-compliances with respect to land use?
Does the proposed development involve unacceptable ecology impacts?
What do the assessment benchmarks require in respect of ecological impacts?
What mitigation measures with respect to ecology do the Appellants propose?
Does the proposed development achieve appropriate ecological outcomes?
Should I impose conditions requiring additional measures consistent with the recommendations of Mr Clowes?
Conclusion regarding ecological impacts
Are there relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016 that lend support to approval?
Should the proposed development be approved in the exercise of the discretion?
Conclusion
Introduction
This case concerns a development application that arose because of a lengthy enforcement history.
The Appellants, Lena and Bradley Nairn, live on land in the heart of the Environmental management zone at Gumdale. They seek approval for a use that they have been unlawfully operating and that contravenes the land use intent for the subject land and broader locality in Brisbane City Plan 2014 (“City Plan”).
The Appellants seek approval to make a material change of use of their land to permit them to operate two businesses from the premises, namely a subcontracting construction company that specialises in the placement and finishing of concrete works and a building company. To regularise the currently unlawful use and works, an impact assessable development application was made to Brisbane City Council (“the Council”) seeking two development permits – one authorising the making of a material change of use and the other for operational works in the form of excavation and filling.
The development application was publicly notified and attracted 158 properly made submissions. Some supported approval but the majority did not. The submissions that opposed approval raised concerns about, amongst other things, inconsistencies with City Plan; flora and fauna impacts; traffic and parking; and amenity impacts occasioned by the use, including character impacts associated with the extent of truck movements and vehicular activity associated with workers attending the subject land.
The Council refused the development application. The reasons for its decision are set out in the decision notice dated 25 July 2022.
This is an applicant appeal against that decision. The Appellants have withdrawn that part of the appeal that relates to the Council’s refusal of a development permit for operational works. As such, the only issue for me to determine is whether they should receive a development permit authorising the material change of use.
During the preparation of the appeal, the Appellants made a minor change to their development application. Despite that, the Council maintains that the development application for a material change of use should be refused.
The Appellants bear the onus of establishing that the proposed material change of use should be approved or approved in part: s 45 of the Planning and Environment Court Act 2016 (Qld).
For the reasons that follow, the Appellants have not discharged the onus.
What is the applicable framework for the decision?
Under s 43 of the Planning and Environment Court Act 2016, the appeal proceeds by way of hearing anew, subject to ss 46(2) and (5). The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2). The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument in effect when the development application was properly made, namely version 23 of City Plan. Weight can be given to amendments to City Plan: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. The parties agree that there are no relevant amendments to be considered in this case.
The assessment must also be carried out having regard to, amongst other things, any development approval for, and any lawful use of, the premises: s 45(5)(b) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017 (Qld).
The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.
Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]-[86]. That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328 at 333-7 [12]‑[22].
As is explained in those authorities:
(a)the ultimate decision called for when making an impact assessment is a broad, evaluative judgment that admits of flexibility to approve an application in the face of non-compliance with a planning scheme;
(b)the exercise of the discretion under s 60(3) of the Planning Act 2016 is subject to three requirements, including that it be based upon the assessment carried out under s 45 of the Planning Act 2016; and
(c)the Planning Act 2016 does not alter the characterisation of a planning scheme as a document that reflects the public interest.
With that framework in mind, I now turn to consider the issues in dispute.
What are the issues in dispute?
The Appellants concede that the proposed material change of use does not comply with various assessment benchmarks in the Strategic framework, Environmental management zone code, and Biodiversity areas overlay code. They accept that compliance cannot be achieved by the imposition of conditions. Despite this, the Appellants contend that approval is appropriate.
Having regard to the cases advanced by the Appellants and the Council, the issues that require determination can be addressed by answering the following four key factual issues:
1. Is the proposed development an appropriate land use on the subject land?
2. Does the proposed development involve unacceptable ecology impacts?
3. Are there relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016 that lend support to approval?
4. Should the proposed development be approved in the exercise of the discretion?
Before turning to address these issues, it assists to appreciate:
(a)the features and character of the subject land and the locality generally;
(b)the parameters of the development approvals for, and lawful use of, the subject land to which regard must be had under s 45(5)(b) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017; and
(c)the parameters of the proposed development.
What is the character of the subject land and the locality in which it sits?
The development application relates to land described as Lot 144 on RP 333825 that is situated at 302 Grassdale Road, Gumdale (“the subject land”). It is rectangular in shape and has an area of approximately 19,073 square metres.
The subject land has a gently undulating landform that generally falls towards the south-western and north-western corners from a high point around 40 metres Australian Height Datum along the eastern boundary. The elevation along the Grassdale Road frontage of the subject land falls from 37 metres Australian Height Datum in the south-eastern corner to 28 metres Australian Height Datum in the south-western corner. The northern boundary, although lower than the localised high point along the eastern boundary, is higher than the southern boundary and has a height of 33.5 to 35 metres Australian Height Datum.
There is an established dwelling house with attached garage and associated parking areas at the mid-point of the eastern boundary. Towards the Grassdale Road frontage, there is a storage shed, office building, parking area and outdoor storage area.
A 3.5-metre-wide common driveway in the south-eastern corner serves both the residential and non-residential uses that presently operate on the subject land.
There is dense vegetation in the western and northern portions of the subject land that are regulated regional ecosystems. The shrub layer of the vegetation has been removed but the groundcover layer is maintained. The vegetation on the subject land supports core koala habitat and is connected to other vegetated areas of core koala habitat in the Gumdale area.
The ecological attributes exhibited on the subject land are consistent with its designation in City Plan as:
(a)land in the Environmental management zone; and
(b)affected by the High ecological significance, High ecological significance strategic, Koala habitat area, and Matters of state environmental significance sub-categories of the Biodiversity areas overlay.
Grassdale Road runs along the southern boundary of the subject land. It has a formalised asphalt pavement to a rural standard. There is kerb and channel on the southern edge of the road. There are no verge footpaths. A table drain drainage channel is located on the northern side of the road and there is piped drainage under the access driveway.
Grassdale Road undulates gently along its predominantly east-west alignment. It rises to the east of the subject land from between 28 and 37 metres Australian Height Datum to a localised high point of approximately 46 metres Australian Height Datum at a location that is 150 metres to the east of the subject land.
The suburb of Gumdale is almost entirely located within the Environmental management zone. The area generally presents as well vegetated with a rural character. Most of the lots surrounding the subject land are rectangular rural residential style allotments that are generally either one or two hectares. The allotments have a consistent depth of 190 metres and frontages of either 50 or 100 metres.
The built form elements within the area are diverse in their range and appearance. Although the setting is typically characterised by detached residential dwellings, there is variation in building setback, height, building materials, location and visibility of driveways, location and appearance of ancillary structures such as sheds, and fencing scale, form, colour and appearance.
The vegetation on the subject land forms part of a wider and diverse mosaic of vegetation within the Gumdale locality. The aerial photographs and mapping show that most of the land in Gumdale contains bands of native vegetation that provides interconnected areas of koala habitat. This is reflected in City Plan, which maps the entire Gumdale locality as a critical component of the Greenspace System. The native vegetation on the subject land forms part of the broader habitat mosaic within the Greenspace System that is intended to support a diverse mosaic of remnant habitats, treed areas and open space, which in turn support biodiversity. Mr Dan Clowes, the terrestrial ecologist retained by the Council, says that site inspections indicate that the extent of koala habitat is consistent with the mapping. His evidence in this respect was not challenged and I accept it.
The subject land is also located within a broader koala priority area.
In general terms, the local area is characterised by the regular road and lot pattern, large lots that are well vegetated, patches of open space, gently undulating terrain, and dispersed built form.
What is approved and lawful on the subject land?
The Appellants case for approval relies heavily on its assertions that:
(a)many of the negative aspects of the proposed development are already lawful; and
(b)the proposed development will result in environmental benefits that are not otherwise provided under the existing approvals and lawful use.
As such, before considering the proposed development, it is useful to understand the parameters of the development approvals for, and the lawful use of, the subject land.
At the time that the Appellants purchased the subject land, it contained an existing dwelling house with attached garage. The dwelling house with attached garage is still present on the subject land. Although I do not have any evidence of the approvals for them, it seems reasonable to infer that they are lawful and that the subject land is lawfully being used for a single residential dwelling.
On 4 May 2018, the Council granted a development permit for building work for an “Extension to Dwelling House in Environmental Management Zone – Shed” (“the Council’s shed approval”). The Council’s shed approval has an application reference number of A004813391.
The approved drawings that form part of the Council’s shed approval show the approved shed as:
(a)25 metres long and 15 metres wide;
(b)a single storey structure constructed on a concrete slab;
(c)having a height of 5.477 metres to the bottom of the eaves and a gable roof; and
(d)having windows on the northern, southern and western sides and a large roller door on the eastern side.
The approved plans do not contain a notation for the height of the approved shed but, applying the scale, it is approximately 7.7 metres high.
The conditions of the Council’s shed approval require:
(a)the building work to be carried out, and maintained, generally in accordance with the approved drawings and documents;
(b)the development footprint to be restricted to areas within an approved development footprint (“the approved development footprint”) on the approved Development Footprint Plan Drawing A01.01 dated 17 April 2018 as amended in red on 18 April 2018 (“the approved Development Footprint Plan”), which area was to be surveyed and pegged prior to the commencement of any operational work or building work;
(c)any fences erected to the perimeter of the subject land outside the approved development footprint to be constructed to allow the free movement of native fauna;
(d)retention, protection and maintenance of all existing vegetation outside the approved development footprint; and
(e)there to be no part of any building or structure (including but not limited to swimming pools, tennis courts, retaining walls, and tanks), no facilities associated with the development, no open space, no recreation areas, no landscaping, no on-site stormwater drainage, no on-site wastewater treatment, no areas of disturbance (including excavation and filling), no storage or stockpiles of materials, no on-site parking, no access and no manoeuvring areas outside the approved development footprint, whether for temporary, short-term or long-term periods unless otherwise agreed in writing by the Council.
The approved Development Footprint Plan outlines a 2,470 square metre area in red, which is the approved development footprint. It encompasses the approved shed and a small rectangular area to its north, the existing dwelling house with attached garage, an area to the north of the existing dwelling house and a single transpiration trench in the north-western quadrant of the subject land. The approved Development Footprint Plan shows the approved shed to be located 39.504 metres from the western boundary.
The approved shed is located in an area that is partly affected by the High ecological significance, High ecological significance strategic, Koala habitat area, and Matters of state environmental significance sub-categories of the Biodiversity areas overlay. It is reasonable to infer from the conditions of the Council’s shed approval that the Council was only prepared to permit building work in that location because of the offsetting ecological benefits that would be achieved by compliance with the conditions.
As was made clear in the Council’s shed approval, the development permit granted by the Council related to assessment of the building work against City Plan. It did not include an assessment of building work against the requirements of the Building Act 1975. A separate development permit was required to authorise the building work after assessment of the work against the requirements of the Building Act 1975.
It seems reasonable to infer from evidence given by Ms Nairn that Hartley Burns was engaged as a private certifier to assess the building work against the Building Act 1975. Ms Nairn’s affidavit attaches a copy of a document that appears to be a development permit for building work assessed against the Building Act 1975 issued by Hartley Burns as private certifier (“the private certifier’s shed approval”).
The plans attached to the private certifier’s shed approval include the Development Footprint Plan with a Hartley Burns stamp indicating it to be an approved plan. The other plans that are attached to the private certifier’s shed approval provide details of the footing, bracing and framing for the shed and provide construction details for a suspended slab.
There are no plans attached to the private certifier’s shed approval that depict a shed with a built-in undercroft, nor with a bathroom in the shed.
The conditions of the private certifier’s shed approval state:
“1.The plans and specifications are approved subject to
· …
· Shed Associated works to be constructed in accordance with Brisbane City Council Approved Decision Notice, Plans and Conditions. Ref: A004813391 Dated: 04/05/2018.”
It is apparent from the affidavit of Ms Nairn that the Appellants have a copy of the approval referred to in condition 1 of the private certifier’s shed approval. It is the Council’s shed approval.
Ms Nairn’s affidavit attaches a copy of a document that she says is a plumbing approval from the Council authorising an on-site effluent system for the shed (“the plumbing approval”).
The on-site effluent system depicted in the plumbing approval includes a septic tank immediately adjacent the western wall of the shed and a transpiration trench further to the west, at a location that is 40 metres from the Grassdale Road frontage and 20 metres from the western boundary. This is within the area mapped as High ecological significance, Koala habitat area, and Matters of state environmental significance sub-categories on the Biodiversity areas overlay in City Plan.
The plumbing approval indicates that the on-site effluent system was assessed in accordance with the Plumbing and Drainage Act 2002. One of the approved plans shows a building lot envelope that largely mirrors the approved development footprint in the Council’s shed approval, save that the outline has been extended to include the septic tank and transpiration trenches proximate the shed.
With respect to vegetation on the subject land, on 11 May 2023, with the consent of the parties, this Court made an order replacing an enforcement notice issued by the Council with a new enforcement notice dated 10 May 2023 (“the enforcement notice”). The enforcement notice records that Ms Nairn contravened the condition of the Council’s shed approval that required the retention, protection and maintenance of all existing vegetation outside of the approved development footprint. It imposes obligations on Ms Nairn to remedy the effect of that development offence.
The remedial action required in the enforcement notice includes the preparation and implementation of a replanting plan. The replanting plan is to be prepared by a suitably qualified rehabilitation specialist. It is to comply with identified minimum conditions, including that:
(a)replanting must include 34 native plants of 50 millimetre tube stock size comprising no less than 60 per cent canopy tree species and no more than 40 per cent shrubs and ground covers, with plants to be chosen from a list of native species;
(b)native plants must be planted in accordance with the following spacing:
(i)tall and small trees – one plant per five square metres; and
(ii)shrubs – one plant per two square metres; and
(iii)ground covers and grasses – one to two plants per one square metre;
(c)all weed species must be removed through weed management within the replanting area; and
(d)the replacement plants are to be maintained and monitored for 12 months.
To address the requirements of the enforcement notice, the Appellants commissioned JWA Ecological Consultants, who prepared the Site Replanting Plan dated May 2023 (“Site Replanting Plan”). The Site Replanting Plan proposes two planting areas, which are annotated as planting area A and planting area B. It also details the number and species of plants to be planted in each area to meet the requirements of the enforcement notice. The identified planting involves 44 native plants. The Site Replanting Plan indicates that an additional 10 plants are proposed to compensate for the loss of an additional two dead trees that are identified in an arborist report. The arborist report was obtained pursuant to the terms of the enforcement notice.
What does the proposed development entail?
The Appellants seek approval to use part of the subject land to operate a building construction business. Activities on-site include indoor storage of building equipment within the existing shed; an ancillary, detached office for accounts and business management activities; and periodic storage of containers and vehicles outdoors.
To ensure that any development approval reflects the nature of the activities that the Appellants are currently (unlawfully) undertaking on the subject land, the Appellants seek a development permit to make a material change of use for a domestic enterprise (“the proposed development”). This is not a defined use in City Plan. In their development application, the Appellants define the “Domestic Enterprise” use as:
“The use of a premises for business activities where:
1.the premises is also used for a dwelling; and
2.the dwelling is occupied by the owner of the business.
Business activities, for the Domestic Enterprise, means:
1.the private storage of goods, plant, and equipment that is used for a business; and
2.office activities,
carried out in the locations shown on the Plan of Development and Development Footprint Plan.”
By order of the Court made on 23 July 2024, the Appellants were permitted to make a minor change to their development application. The Court ordered that the appeal proceed based on changed plans and a revised operational management plan.
Exhibit 16 contains a complete set of plans depicting the proposed development for which approval is sought (“the proposed plans”). It includes Development Plan Drawing No. DP01.01 revision 3 (“the development plan”).
The business activities component of the domestic enterprise use is to be confined to a proposed development footprint that is marked with a blue dashed outline on the development plan (“the proposed development footprint”). The proposed development footprint has an area of 2,890 square metres and is located towards the Grassdale Road frontage of the subject land.
Within the proposed development footprint for the business activities are:
(a)a shed, which is described as “existing approved shed” (“the proposed shed”);
(b)a demountable office building;
(c)an asphalt driveway that provides access to the business activities and the dwelling;
(d)12 carparks, which are proposed on a concrete slab (described as “existing approved slab”), adjacent the concrete slab and at the end of the asphalt driveway;
(e)a 366-square-metre outdoor area designated for storage;
(f)a grassed area that appears to provide an area for vehicle manoeuvres that are associated with the outdoor storage area; and
(g)an area between the office building and the western boundary that is described as “existing approved transpiration trenches”, which appears to generally accord with the transpiration trenches depicted in the plumbing approval.
Although the development plan describes the shed as “existing approved shed”, the shed shown in the proposed plans is different to that depicted in the Council’s shed approval and the private certifier’s shed approval. It is of similar length, width and height at the eastern end to the approved shed. However, unlike the approved shed, the proposed shed has an enclosed undercroft level that is accessed from the west via a large roller door.
The enclosed undercroft extends 18.112 metres under the ground level from the western façade. The height of the proposed shed at its western end, measured as the distance between the floor of the undercroft level and the peak of the roof, is 10.742 metres. The enclosed undercroft adds approximately 225 square metres gross floor area to the 375 square metres gross floor area that is available for storage in the approved shed.
The new access point at the western end is within that part of the subject land that is identified as in the High ecological significance, Koala habitat area, and Matters of state environmental significance sub-categories of the Biodiversity areas overlay.
The office building is 12 metres wide and 10.4 metres long with a covered landing that extends the width of the structure. It has a gross floor area of greater than 120 square metres. The proposed office building sits 0.6 metres above the concrete slab and has a maximum height of 3.14 metres above the slab level. It sits above ground that batters down to the adjoining vegetated areas to the west. It contains three offices, six workstations, a meeting room, and kitchen and bathroom facilities.
The proposed outdoor storage area has a road base surface and batters down the adjoining existing ground level.
On my review of the photographs in evidence before me, the proposed shed and the proposed office building reflect the existing shed and existing office building on the subject land.
Outside of the proposed development footprint are:
(a)a 9,942-square-metre area that is designated as a covenant area;
(b)the existing approved dwelling with attached garage;
(c)existing transpiration trenches for the dwelling house;
(d)an area annotated as the location of a proposed, approved pool house;
(e)four areas of proposed planting in which:
(i)planting areas A and B are coincident with those areas in the Site Replanting Plan. They are described as “existing replanting” and are to contain 35 tree species and 17 shrubs and ground cover species;
(ii)planting areas C and D are described as “extra replanting” and are to contain 21 tree species and 8 shrubs and ground cover species; and
(f)large areas that are otherwise unannotated.
The parameters of the proposed development that the Appellants invite me to approve are further defined by reference to an Operational Management Plan dated 10 May 2024 (“the Operational Management Plan”).
The Operational Management Plan records that the shed is proposed to be used to store building equipment that is used on offsite construction sites. The equipment is said to include three bobcats, tools, timber, scaffolding, H frames and laser levels.
A forklift will also be stored in the shed and will be used to move materials to and from the undercroft level. A flatbed truck and a concrete tipper will also be stored in the shed and will be used to move equipment to and from the ground floor level of the shed.
The Operational Management Plan provides an indication of the frequency of movement of vehicles. This is not expressed as fixed limits on the proposed use, rather as an indication of typical operating conditions.
With respect to the flatbed truck, the Operational Management Plan says that the flatbed truck is stored on the ground floor of the shed each evening. The driver of the truck parks in the office car park or in the shed if there is room. The flatbed truck is used four days each week and, on rare occasions, on a Saturday. The flatbed truck goes to and from the subject land up to three times per day. It is driven into the storage shed for loading and unloading, which occurs within the shed using a forklift between 7 am and 6 pm Monday to Friday and between 7 am and midday Saturday. The roller door and all windows are to be kept shut during loading and unloading, which is supervised by a resident employee.
According to the Operational Management Plan, the tipper truck is normally stored on a construction site but is stored in the shed when it is not being used on a construction site. The Operational Management Plan says that the tipper truck will return to the subject land up to five times in a six-month period.
A work utility vehicle is parked on the ground floor of the shed and is used up to five times a week to transport tools to and from construction sites. The driver of the work utility vehicle will park their personal car in the car park or shed.
According to the Operational Management Plan, the office will be used for six full-time employees, with a maximum of four non-resident employees. Office hours are to be between 6 am and 6 pm Monday to Friday and between 6 am to midday on Saturday, although one staff member arrives at 5.30 am to commence work in the office. It is also proposed that up to two visitors be permitted at the office at any one time.
The Operational Management Plan identifies that the outdoor storage space is to be used to store up to four shipping containers, a scissor lift, a scissor lift trailer and a site office. This equipment is to be stored in the outdoor storage space when it is not required on construction sites. A tilt tray truck is to be used to move the shipping containers to and from the subject land. The flatbed truck is used to move the scissor lift and trailer. Movement of plant and equipment from the outdoor storage space is proposed to occur between 7 am and 6 pm Monday to Friday and between 7 am and midday on Saturday.
The Operational Management Plan provides an indication of the frequency of movement of equipment stored in the outdoor storage space. This not expressed as fixed limits on the proposed use, rather as an indication of typical operating conditions. In this respect, the Operational Management Plan says that shipping containers are normally moved directly between constructions sites but will be stored on the subject land when the business is not busy or sometimes between jobs or when they are not required at construction sites. Shipping containers stored in the outdoor storage space are moved infrequently to and from the site. The indication provided in this respect is four to six movements per year with eight to twelve truck movements to take containers off site and bring them back. The scissor lift and trailer are moved up to ten times per year.
The Operational Management Plan also details noise management measures and traffic management measures.
In addition to the limits contained in the Operational Management Plan, the Appellants case is that approval should be subject to those conditions set out in Exhibit 20 (“the Appellants’ proposed conditions”). They are not proposed with the agreement of the Council. The Appellants can elect to adopt the conditions as parameters that define the extent of their proposed development. If they elect not to, I have serious reservations about the Court’s ability to lawfully impose some of the Appellants’ proposed conditions.
The Appellants’ proposed conditions contain limits and controls on the proposed development with respect to traffic, access and parking arrangements, stormwater management, visual amenity, ecology, bushfire and noise and air quality. They have been proposed in response to recommendations made in joint expert reports with respect to traffic, stormwater, visual amenity, ecology, bushfire, and noise and air quality. In effect, they are refinements (or changes) to the parameters and details of the proposed development that the Appellants have elected to propose. The refinements to the proposed development contained in the Appellants’ proposed conditions represent no more than a minor change to the development application.
In those circumstances, I will assess the development application on that basis that the Appellants are content for their proposed development to be defined by reference to the limitations and other parameters specified in the Appellants’ proposed conditions.
Is the proposed development an appropriate land use on the subject land?
The Council contends that the proposed development is an inappropriate land use on the subject land as it:
(a)is out of character with the locality;
(b)does not support the implementation of the policy direction for the planned greenspace system; and
(c)cuts across the clear land use intent for the subject land.
For those reasons, the Council alleges that the proposed development does not comply with applicable assessment benchmarks against which the proposed development must be assessed, namely:
(a)the strategic outcome for Theme 3 of the Strategic framework in s 3.5.1 1.d., and Element 3.1 specific outcomes SO1, SO2 and SO4 and associated land use strategies L1, L2.1 and L4.2;
(b)the strategic outcome for Theme 5 of the Strategic framework in s 3.7.1 1.h. and i., and Element 5.6 specific outcome SO1 and associated land use strategies L1.2 and L1.3; and
(c)the overall outcomes in ss 6.2.4.1 2.a., b. and e. of the Environmental management zone code.
It is uncontentious that the provisions referred to by the Council are relevant assessment benchmarks.
The Appellants concede that the proposed development does not comply with land use strategy L4.2 for Element 3.1, land use strategy L1.2 for Element 5.6 and the overall outcome in s 6.2.4.1 2.b. of the Environmental management zone code.
Otherwise, the Appellants dispute the Council’s contentions. They say that the proposed development is not out of character with the locality given the limits on the use.
Is the proposed development out of character with the locality?
To assist me with an assessment of the character impacts of the proposed development, I have the benefit of:
(a)expert evidence of Mr Dean Butcher and Mr Nicholas Mc Gowan, the visual amenity experts retained by the Appellants and the Council respectively;
(b)expert evidence from Mr Stephen Buhmann and Mr Greg Ovenden, the town planners retained by the Appellants and the Council respectively;
(c)many photographs of the area and the proposed plans; and
(d)the properly made submissions.
The submissions are a matter to which I must have regard: s 45(5)(a)(ii) of the Planning Act 2016, s 31(1)(g) of the Planning Regulation 2017 and paragraph (a)(v) of the definition of “common material” in sch 24 of the Planning Regulation 2017.
In this case, the residents’ submissions reflect their experiences of the level of activity that is proposed. This is because the Appellants are seeking a development permit to regularise their currently unlawful operation of business activities on the subject land. Allowing for the fact that some of the mitigation measures now proposed are not currently in place, the submissions (and the photographs they attach) assist me with a real assessment of the impact that the proposed development would have on the character of the area: Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271.
When viewed from the west along Grassdale Road, the subject land is moderately prominent within the local visual catchment because of its elevated nature and semi-open character. This results in the existing shed having a prominence when viewed from Grassdale Road adjoining the subject land.
Mr Butcher opines that the presence of existing site vegetation along the western and southern boundaries, and to a lesser degree along the eastern boundary, reduces the visibility of the structures on the subject land. Nevertheless, he accepts that the colouration of the enclosed undercroft of the shed may contribute to its perceived bulk and scale. He says that, in contrast, the dark-coloured wall sheeting above the split-face blockwork is visually recessive and does not appear as prominent as the other lighter coloured finishes. In Mr Butcher’s view, when the cream-coloured blockwork is combined with the split-face blockwork at ground level, it accentuates the appearance of height of the shed from ground level along its western façade.
To minimise any perceived visual impacts because of the prominence of the enclosed undercroft area, Mr Butcher recommends:
(a)painting the enclosed undercroft area of the shed with a darker colour to reduce its impact and prominence; and
(b)planting around the western and southern sides of the shed to minimise visibility and prominence of the enclosed undercroft area through natural screening in nominated locations.
Dr McGowan opines that, in its current form, the shed and existing unlawful use detracts from the greenspace values and the character of the area. He says that the impact on these values and character could be adequately mitigated if additional landscaping is undertaken. He also considers that an updated fence along the Gumdale Road frontage would improve compatibility with the local character.
In response to the evidence of the visual amenity experts, the Appellants’ proposed conditions require:
(a)the enclosed undercroft area of the shed to be painted with a darker colour;
(b)the planting referred to in paragraph [67](e) above;
(c)a new front boundary fence; and
(d)the installation of sections of colorbond fence running from the front boundary along the western boundary for 47.823 metres and along the eastern boundary for 41.641 metres.
Mr Buhmann opines that these mitigation measures successfully mitigate the visual amenity impacts and that the proposed development will not be more imposing than a large dwelling. He says that with the benefit of the proposed screen planting and the change in colour of the lower-level split-face blockwork on the shed, the proposed development will blend into the neighbourhood to the point of being unobtrusive. I disagree.
On my review of the photographs, the existing shed presents as a two-storey-high shed at its eastern extent and as a three-storey high shed at its western extent. Consideration of the properly made submissions reveals that several residents of Grassdale Road hold a similar view. They describe the existing shed as a “large warehouse”, “an existing large warehouse visible at the front of the property … very close to the road … completely out of character with this semi rural area”, “a two-storey warehouse and large commercial office building” and representative of a “commercialisation” of the suburb.
I accept that the appearance of excessive scale will be moderated by the proposed vegetative screening and change in colour of the split-face blockwork. However, this will not disguise the intense nature of the operations proposed to be undertaken.
The properly made submissions include photographs that demonstrate how, by reason of the topography of the land along Grassdale Road and the open style fence and gate at the access point, the proposed shed, office building and outdoor storage area are readily seen from Grassdale Road and neighbouring properties. The photographs show how the subject land appears when the flatbed truck, forklift and other vehicles are present. The photos support the observations of residents of Grassdale Road, who say that the large trucks and other vehicles that are regularly seen entering, exiting and parked on the subject land negatively impact on the character of the area. The residents also describe traffic blockages caused by large trucks entering the subject land.
These observations from the residents of Grassdale Road are generally consistent with the view I have formed about the likely character impacts of the proposed development. My views are informed by:
(a)my findings about the character of the locality in paragraphs [21] to [33] above;
(b)my appreciation of the character impacts of lawful development on the subject land having regard to the information in paragraphs [36] to [54] above; and
(c)the details of the proposed development identified in paragraphs [55] to [81] and [94] above, and all the Appellants’ proposed conditions in Exhibit 20.
Having regard to that material, I accept the evidence of Mr Ovenden about the character impact of the proposed development. His opinions accord with the views that I have formed.
Mr Ovenden opines that the nature of the built form and the type of activity associated with the proposed development will clearly be different from that found elsewhere along Grassdale Road and in the wider locality. He explains that although a solid fence is now proposed, the proposed development, and its associated activity including vehicle movements, will remain visible from the driveway and Grassdale Road.
Mr Ovenden refers to several aspects of the development to explain the differences that he says will be apparent despite all the controls and mitigation measures that are proposed by the Appellants.
One example of a material difference to which Mr Ovenden refers is the driveway that is required for the proposed development. Condition 10 of the Appellants’ proposed conditions requires the construction of the Council’s Type B2 crossover that is generally in accordance with the Council’s standard drawing BSD-2021, with a “W1” dimension at the property boundary of six metres. As Mr Ovenden explains, the standard drawings show that the width of the driveway then splays out wider at the interface with the carriageway. I accept the evidence of Mr Ovenden that this enlarged driveway crossover will appear industrial in nature and out of place in Grassdale Road. As Mr Ovenden observes, 34 properties on Grassdale Road between its intersections with Stanbrough and Tilley Roads, 27 of which have single width driveways, and seven have unformed driveways.
Mr Ovenden also explains that the different character of use on the subject land will be highlighted by the placement of prominent signs on both approaches to the subject land that warn of trucks crossing or entering at times when the tilt tray vehicle is scheduled to visit the subject land.
These are but two examples of aspects of the use that demonstrate its inappropriate character. As was explained by Mr Ovenden during his cross-examination, despite the proposed management measures and conditions, residents of the locality will still see and hear the uncharacteristic activity, such as shipping containers being dropped off. Activities of that kind will indicate that there is an unanticipated use being conducted from the subject land.
Mr Ovenden’s opinion about the different character of the use accords with the observations made by residents of Gumdale Road in their submissions about the development application. The submissions include photographs that demonstrate a level and type of activity that is inconsistent with the character of the area.
I am satisfied that the mitigation measures adopted by the Appellants in their proposed plans and in the Appellants’ proposed conditions will reduce the visibility and the prominence of the built form associated with the proposed development compared to that shown in the photographs. However, I am not persuaded that they will disguise the proposed development’s non-residential character.
The frequency of vehicle movement, and the types of vehicles entering and exiting the subject land, coupled with the scale of the proposed shed, give the subject land an industrial character like that associated with a warehouse, contractor’s depot or storage yard. The proposed development will be out of character in the locality.
Does the proposed development support the implementation of the policy direction for the planned Greenspace System?
To assess whether the proposed development would support the implementation of the planned Greenspace System, it is necessary to first understand what City Plan seeks to achieve in that respect.
What is policy direction for the planned Greenspace System?
The Strategic framework sets the policy direction for City Plan and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of City Plan: s 3.1 1 of City Plan. It is comprised of the strategic intent; five themes that collectively represent the policy intent of City Plan; strategic outcomes proposed for development in the planning scheme area for each theme; elements that refine and further describe the strategic outcomes; the specific outcomes sought for each element; and the land use strategies for achieving each of these outcomes: s 3.1 3. of City Plan.
Brisbane’s Greenspace System is a core strategic land use outcome that is established within the Strategic framework in City Plan. It consists of land in the Conservation, Environmental management, Rural, Rural residential, Open space and Sport and recreation zones. It is a network of greenspaces that is comprised of land with various attributes on the functionality continuum. Some of the network involves land intended for active recreation-oriented land uses associated with parks and sport and recreation areas, whereas other parts of the network are planned for open, rural lifestyle-oriented land uses or environment-oriented land uses associated with waterway networks and lands supporting biodiversity areas or scenic amenity values.
The policy direction for Brisbane’s Greenspace System is a key focus in:
(a)Theme 3: Brisbane’s clean and green leading environmental performance and Element 3.1 – Brisbane’s environmental values of the Strategic framework; and
(b)Theme 5: Brisbane’s CityShape and Element 5.6 – Brisbane’s Greenspace System of the Strategic framework.
Section 3.5.1 of City Plan contains the assessment benchmarks for Theme 3: Brisbane’s clean and green leading environmental performance and Element 3.1 – Brisbane’s environmental values. Section 3.7 of City Plan contains the assessment benchmarks for Theme 5: Brisbane’s CityShape and Element 5.6 – Brisbane’s Greenspace System.
As is recorded in the strategic outcome in s 3.5.1 1.d.:
“The Greenspace System serves many functions. It contributes to the city’s character and liveability; it supports landscape, recreation and ecological functions, ecosystem services and defines local neighbourhoods and the edge of the city.”
In terms of ecological functions, City Plan seeks a resilient, robust and well-protected system of habitat areas, connected by ecological corridors, to provide habitats for a rich diversity of flora and fauna species, including the koala: s 3.5.1 1.f. of City Plan.
In terms of ecosystem services, the Greenspace System provides for natural, modified and urban ecosystems that benefit, sustain and support the wellbeing of people. These are intended to be valued, maintained, protected and enhanced: s 3.5.1 1.e. of City Plan.
As was explained by Mr Ovenden, in broad terms, the Greenspace System is intended to accommodate non-urban type uses. It provides for high amenity lifestyle lots and non-urban rural, environmental, or open space type uses. As part of the Greenspace System, the Environmental management zone generally provides for the protection of environmentally sensitive areas from urban and industrial activities.
Further guidance about the policy with respect to the Greenspace System is provided by the assessment benchmarks on which the Council relies, namely:
(a)Element 3.1 specific outcomes SO1, SO2 and SO4 (and associated land use strategies L1, L2.1 and L4.2), which state:
Specific outcomes
Land use strategies
Overall environmental values
SO1
Brisbane’s Greenspace System’s biodiversity, recreational and cultural values and functions are protected, restored and enhanced.
L1
The Greenspace System, the majority of which occurs outside the urban footprint in the SEQ Regional Plan, also extends throughout the urban footprint through a series of district and metropolitan parks, waterway networks, sport and recreation areas and lands supporting biodiversity areas or scenic amenity values. Zones that occur within the Greenspace System are:
a. Conservation;
b. Environmental management;
c. Rural;
d. Rural residential;
e. Open space;
f. Sport and recreation.
SO2
Brisbane’s Greenspace System provides an effective network of greenspace links and contributes to a regional network.
L2.1
Development does not fragment environmental management, rural residential or rural lands.
Biodiversity values
SO4
Brisbane has an ecologically resilient and robust network of well-connected habitats containing a comprehensive, adequate and representative sample of ecosystems and species.
L4.2
Development for an urban purpose is located outside areas of high ecological significance or high strategic biodiversity value.
(b)the strategic outcomes in ss 3.7.1 1.h. and i., which state:
“h.Brisbane’s Greenspace and Rural Neighbourhoods which are located outside and on edges of the urban footprint in the SEQ Regional Plan and the Priority infrastructure area at the periphery of the city, including the Moreton Bay islands:
i. are very low-density areas that generally comprise single houses on large lots;
ii. are not provided with the same level of service as urban locations with regard to the delivery of physical infrastructure, particularly connection to the sewer network, public transport, roads and refuse collection;
iii. are developed for rural industries including horticulture, intensive animal industry, livestock grazing and cropping in Rural Neighbourhoods;
iv. maintain Brisbane’s ecological assets and provide some of its park and recreation needs.
i.Brisbane’s Greenspace (refer to Brisbane greenspace system strategic framework map) offers a well-connected system of places with environmental, recreational and rural values in a variety of land use settings which:
i. comprises the majority of the city’s land outside the urban footprint in the SEQ Regional Plan and land within the urban footprint located in a series of district and metropolitan parks, waterway networks, sport and recreation areas and lands supporting citywide biodiversity areas or scenic amenity values;
ii. frames and weaves through the city, including the green hills of Brisbane Forest Park and Mt Coot-tha, the leafy suburbs and waterways, along the Brisbane River to Moreton Bay and the Moreton Bay islands;
iii. maintains Brisbane’s ecological assets and provides for many of its park and recreation needs;
iv. serves many functions which are described in the clean and green leading environmental performance theme.
(c)Element 5.6 specific outcome SO1 and associated land use strategies L1.2 and L1.3, which state:
Specific outcomes
Land use strategies
Greenspace System
SO1
The Greenspace System’s values and functions are identified, retained and enhanced.
L1.2
Development intensity, land use allocation, siting and design protect the multiple values and functions of the Greenspace System.
L1.3
Development does not fragment high-value biodiversity areas, areas for large-scale rehabilitation, fauna movement and rural activities.
These assessment benchmarks in the Strategic framework record city-wide policies that are then implemented through finer-grained planning in City Plan, such as the allocation of land to zones and the assessment benchmarks in zone codes.
Relevantly, the overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code states:
“a.Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular:
i.Theme 3: Brisbane’s clean and green leading environmental performance and Element 3.1 – Brisbane’s environmental values;
ii.Theme 5: Brisbane’s CityShape and Element 5.6 – Brisbane’s Greenspace System.”
Does the proposed development support the planned Greenspace System?
The town planners disagree about whether the proposed development supports the implementation of the policy direction set in the Strategic framework.
Mr Buhmann accepts that, at face value, industrial uses are a discordant use within the Environmental management zone. However, in his opinion, the proposed development does not conflict with the strategic intent of City Plan with respect to the Greenspace System. This is because, in Mr Buhmann’s opinion, the proposed development will appropriately mitigate any adverse impacts to the Greenspace System and its environmental, visual and lifestyle functionality. He says this is achieved by the contained footprint of the proposed development, the adoption of measures to prevent adverse amenity impacts such as noise emissions, and the compensatory environmental improvements.
Mr Ovenden disagrees with Mr Buhmann. He opines that, even taking account of the existing approvals and the conditions proposed by the various experts to mitigate impacts, the proposed development remains fundamentally discordant with the strategic direction of City Plan.
I do not find Mr Buhmann’s evidence compelling. His approach assumes that the planning policy with respect to the Greenspace System, and the assessment benchmarks that implement it, focus on the protection of existing greenspace values from material impacts.
The assessment benchmarks in the Strategic framework are expressed in broad terms. This is unsurprising as they set the policy for City Plan. It is unlikely that a single development would, by itself, undermine the Greenspace System. The Council accepts this but says that the assessment benchmarks in the Strategic framework provide important context. I agree. That said, I am not persuaded that there is compliance with the overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code, or the identified assessment benchmarks in the Strategic framework, by the mere fact that the proposed development does not, of itself, undermine the Greenspace System or result in substantial degradation of the values and functions that define it.
When read holistically, the assessment benchmarks reflect a clear planning policy to ensure that the extent and quality of the Greenspace System is not only protected, but also restored and enhanced. The overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code calls for support of this policy. Mitigation of impacts does not equate to support.
As I have already indicated, I have my doubts about the lawfulness of continued clearing of understorey. I am also not persuaded that regeneration will occur as suggested by Mr Moffitt. Nevertheless, for present purposes I am prepared to assume that the present clearing of the understorey is lawful. I am also prepared to assume that the proposed development will provide each of the ecological benefits claimed by the Appellants. I will assess the proposed development on that basis.
Even assuming all the claimed benefits in the Appellants’ favour, the Appellants have not persuaded me that the ecological benefits are sufficient to resolve the non-compliances with the assessment benchmarks. The Appellants’ case in this regard overlooks a fundamental aspect of the assessment benchmarks, namely that they do not call only for mitigation of impacts. Where development is proposed in areas affected by the Biodiversity areas overlay, the development is required to achieve enhancement, restoration and rehabilitation. The proposed development, including the mitigation measures proposed by Mr Moffitt, does not achieve this.
For the reasons provided above, I am satisfied that when the proposed development is assessed against applicable assessment benchmarks in City Plan, it does not achieve an appropriate ecological outcome. As was recognised by Mr Moffitt during cross-examination, the requirements to preserve and respect the environmental designations is a matter of importance. The proposed development’s failure to comply with the requirements in that respect is a matter that weighs heavily against its approval.
Should I impose conditions requiring additional measures consistent with the recommendations of Mr Clowes?
As is evident from the extract of the Appellants’ submissions in paragraph [195] above, in final submissions the Appellants raised an alternative case. If I do not accept the evidence of Mr Moffitt, they submit that I should approve the proposed development subject to those conditions recommended by Mr Clowes.
Unlike Mr Moffitt, Mr Clowes addresses the assessment benchmarks’ requirements for enhancement, restoration and rehabilitation, not simply the requirements directed at avoidance and mitigation of impacts. Consequently, Mr Clowes recommends additional mitigation measures above those recommended by Mr Moffitt. The conditions recommended by Mr Clowes involve:
(a)the creation of a larger environmental covenant area, being an area of approximately 11,000 square metres;
(b)supplementary planting of native vegetation and appropriate maintenance of all native vegetation and ecological values, including by retention of all native vegetation, ongoing weed control and rehabilitation undertaken in accordance with an approved rehabilitation plan for the subject land; and
(c)the fencing of the entire environmental covenant area to prevent domestic pets, both current and future, from accessing the area.
The Council submits that the Appellants should not now be permitted, during final submissions, to advance an alternative case that relies on the conditions proposed by Mr Clowes. It says that the Appellants could have embraced Mr Clowes recommendations but instead they argue that the conditions are not lawful under s 65 of the Planning Act 2016.
I accept the Appellants’ submission that, provided I am satisfied that the conditions are lawful, I can exercise my broad discretion to impose the conditions recommended by Mr Clowes on the development approval. That said, I do not accept that the mere fact that I prefer the evidence of Mr Clowes to that of Mr Moffitt of itself necessarily demonstrates that the conditions are lawful under s 65 of the Planning Act 2016.
The power to impose development conditions is subject to the statutory provisions about lawful conditions. Section 65 of the Planning Act 2016 imposes a constraint on the power: Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965 at 969 [16]. It, relevantly, states:
“65 Permitted development conditions
(1)A development condition imposed on a development approval must–
(a) be relevant to, but not an unreasonable imposition on, the development or the use of premises as a consequence of the development; or
(b) be reasonably required in relation to the development or use of premises as a consequence of the development.”
I identify the relevant legal principles with respect to conditions in Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965 at 969-70 [14] – [20].
I am satisfied that the conditions proposed by Mr Clowes are relevant for the purpose of s 65(1)(a) of the Planning Act 2016. This is because they are directed to the legitimate planning purpose of achieving compliance with the planning outcomes sought in the assessment benchmarks in the Biodiversity areas overlay code, the Environmental management zone code and the Strategic framework.
The mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition: Proctor v Brisbane City Council (1993) 81 LGRA 398, 404. It also must not be an unreasonable imposition on the development or use of premises as a consequence of the development. The requirement that a relevant condition not be an “unreasonable imposition” focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of the development or the potential use: Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [16].
Even if a condition is one that can be legitimately imposed having regard to the constraints in s 65 of the Planning Act 2016, there is no obligation to do so. There is a residual discretion to otherwise determine what lawful conditions should be imposed: Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, [5].
Whether a condition represents an unreasonable imposition is a question of fact to be determined having regard to all the circumstances of the case. Here, none of the evidence called by the Council addresses this question. That is unsurprising as the alternative case was not raised by the Appellants until final addresses.
The only substantive evidence that I have with respect to whether the additional conditions proposed by Mr Clowes’ are an unreasonable imposition are the opinions of Mr Moffitt to that effect. I do not find Mr Moffitt’s opinions to be persuasive. They are founded on an assumption that the proposed development is properly characterised only by reference to the business activities carried out in the proposed development footprint. I reject that characterisation for the reasons provided in paragraph [146] to [152] above. That said, it does not follow that the conditions are a reasonable imposition.
I have insufficient evidence about the nature and extent of rehabilitation works required by the conditions proposed by Mr Clowes, including with respect to the time and expense that they involve, to assess whether they are a reasonable imposition. Having regard to the existing obligations in the Council’s shed approval and the nature of the development, I am inclined to think that the additional conditions may be reasonable. However, I am not persuaded of this to the requisite degree, namely on the balance of probabilities.
In those circumstances, the Appellants have not discharged their onus with respect to their alternative case.
Further, even if the additional conditions proposed by Mr Clowes are lawful, I am not persuaded that I should exercise my discretion to impose them.
I am cognisant that the unfortunate attitudes of the Appellants as citizens residing and carrying on business in Brisbane City are not immediately relevant to the merits of the proposed development. They would not be a reason to refuse an otherwise meritorious development (if such a development was proposed). However, they may be a reason to carefully consider the extent of conditions that are appropriate: Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, 767-7 [239]; Lifnex Pty Ltd and Oil Recyclers Australian Pty Ltd v Ipswich City Council [1998] QPELR 517, 518.
In this case, the Appellants have made it abundantly clear that they regard the additional conditions proposed by Mr Clowes to be unreasonably onerous. Despite that, they say that if the imposition of the conditions would obtain them an approval, rather than a refusal, I should exercise my discretion to impose them. The conditions in question would require ongoing compliance with obligations of a similar nature to those imposed under the Council’s shed approval. Given the Appellants’ history of non-compliance with such conditions, and their strong resistance Mr Clowes’ conditions, I am not persuaded that I should exercise my discretion to grant an approval including the additional conditions. My view in this regard is not determinative. That is because, even with the additional conditions suggested by Mr Clowes, I am not persuaded that the proposed development should be approved given the unacceptable character impacts occasioned by the use.
Conclusion regarding ecological impacts
For the reasons provided above, an assessment of the proposed development against the assessment benchmarks with respect to ecology tells against its approval. The mitigation measures proposed by Mr Moffitt do not provide a sound town planning reason to not give the provisions of City Plan about ecology their full force and effect. Although the additional conditions suggested by Mr Clowes may be lawful, I am not persuaded of this to the requisite standard. In any event, I am not persuaded that I should exercise my discretion to impose the additional conditions to address the non-compliances with City Plan given the Appellants’ strong resistance to them on the basis that they are unreasonably onerous.
Although not determinative, I also note that several other conditions proposed by the Appellants are also unsatisfactory. They create uncertainty. For example, it is unclear what is meant by “ongoing maintenance”, as distinct from weed and non-native plant control, in condition 16 of the Appellants’ proposed conditions. The Appellants’ proposed conditions contain no requirement about encouraging natural regeneration of native understorey. Further, their conditions state that the purpose of the covenant is preservation of native vegetation, not restoration or enhancement of it. In those circumstances, does ongoing maintenance permit the current practice of removing the understorey? This is but one example of the difficulties with the Appellants’ proposed conditions.
Are there relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016 that lend support to approval?
The Appellants identify two relevant matters that they say arise for consideration under s 45(5)(b) of the Planning Act 2016 and support approval. They are framed in the following terms in the Appellant’s Particularised List of Reasons for Approval dated 17 April 2023 in Exhibit 1:
“21.The proposed development can be undertaken without adverse impacts upon surrounding properties in the locality.
22.The proposed development complies with the relevant assessment benchmarks, or if there are any non-compliances, those can be conditioned to comply with the relevant assessment benchmarks.”
I accept that each of these matters is a relevant matter for s 45(5)(b) of the Planning Act 2016. The real issue is whether they are each established on the evidence and what weight should be attributed to each of them.
I have already addressed the substance of these contentions above. As relevant matters, I am not persuaded that the substance of these contentions lends any greater weight to the case for approval (or refusal) than they do as considerations relevant to the assessment of the proposed development against the applicable assessment benchmarks in City Plan.
Should the proposed development be approved in the exercise of the discretion?
There are four propositions that are fundamental to the Appellants’ case for approval, namely:
(a)the impacts caused by the proposed development to the Greenspace System are at a site-level only and are minor;
(b)the impacts caused by the proposed development to ecological values on the subject land are not of a magnitude that warrant refusal but merely require mitigation in accordance with the measures proposed by either Mr Moffitt or Mr Clowes;
(c)the proposed development:
(i)is compatible with the green, open space, lifestyle and amenity of the neighbourhood;
(ii)can comfortably co-exist with the local identified environmental values;
(iii)does not adversely impact on the landscape or streetscape values of the location;
(iv)is appropriately screened and buffered from adjoining residents; and
(v)will have no unacceptable impacts on the character or amenity of the local area; and
(d)approval of the proposed development with conditions imposing the mitigation measures (either as proposed by Mr Moffitt or Mr Clowes) will improve and enhance the ecological values of the subject land by:
(i)the grant of a covenant that secures the conservation and protection of at least 9,942 square metres of land subject to the Biodiversity areas overlay map;
(ii)the regeneration of at least part of the understorey that has been cleared and that is otherwise likely to remain cleared;
(iii)the replanting of some larger habitat trees as proposed by the visual amenity experts, which planting will have the dual purpose of providing visual amenity screening and improving the ecological values in that area of the subject land;
(iv)the construction of a pet-exclusion fence around at least the most vulnerable part of the covenant area; and
(v)the creation of koala crossing points along the boundary fence.
The Appellants’ case was advanced on the basis that the Court would accept all these propositions and that, collectively, they justify approval of the proposed development.
As would be evident from my findings above, the Appellants have demonstrated, or I am prepared to assume, those matters identified in paragraphs [251](a), [251](c)(iii), [251](c)(iv), and [251](d) above. The Appellants have also demonstrated that there are no unacceptable amenity impacts on the area other than those occasioned by the inappropriate character of the proposed development.
Those matters established by the Appellants lend support to the case for approval.
Against those matters, I must weigh the non-compliances with City Plan.
The most significant non-compliance is occasioned by the business activities component of the proposed development and its associated inappropriate character impacts. This is a matter that, alone, is determinative. The fundamental non-compliance occasioned by the inappropriate use of land in the Environmental management zone cannot be overcome through the imposition of conditions or the mitigation of ecological impacts.
The non-compliances with the assessment benchmarks with respect to ecological issues also tell strongly against approval. This is because of the failure to restore the ecological features, ecological processes and areas of strategic biodiversity value on the subject land as planned for that part of the subject land that is within the High ecological significance subcategory and the High ecological significance strategic subcategory of the Biodiversity areas overlay code.
On balance, I am not persuaded that all the matters that favour approval that I have identified throughout these reasons, taken collectively, are sufficient to provide a sound town planning basis to depart from City Plan. They do not render the impacts on character acceptable. Moreover, there is no sound town planning reason to not give City Plan its full force and effect insofar as it seeks to restore and enhance ecological values on the subject land to ensure the long-term viability of the Greenspace System.
Conclusion
The Appellants have not discharged the onus. I order that the appeal be dismissed. The development application for a development permit for making a material change of use is refused.
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