Riverside Development Pty Ltd v Brisbane City Council

[2022] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Riverside Development Pty Ltd v Brisbane City Council & Ors [2022] QPEC 53

PARTIES:

RIVERSIDE DEVELOPMENT PTY LTD
(ACN 084 611 049)

(applicant)

v

BRISBANE CITY COUNCIL

(first respondent)

AND

DEXUS FUNDS MANAGEMENT LIMITED
(ACN 060 920 783)

(second respondent)

AND

PERPETUAL TRUSTEE COMPANY LIMITED
(ACN 000 001 007)

(third respondent)

FILE NO:

401 of 2021

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9, 10 and 21 March, 28 & 29 April 2022, with further submissions delivered 6, 12 & 13 May 2022.

JUDGE:

Williamson KC DCJ

ORDER:

The Further Amended Originating Application filed by leave on 9 March 2022 is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the development application approved was impact assessable rather than code assessable – whether the decision to grant the development approval was invalid.

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the development application required the consent of the applicant – whether the application was properly made for the purposes of the Planning Act 2016 – whether the decision to grant the development approval was invalid.

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – where the assessment process continued after the second respondent made a change to its development application – whether the change was made in response to an information request – whether the decision to grant the development approval was invalid.

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the delegate erred in construing and applying City Plan 2014 – whether the delegate failed to have regard to relevant considerations – whether the decision is unreasonable – whether the decision to grant the development approval is invalid.

LEGISLATION:

Acts Interpretation Act 1954, s 7
Judicial Review Act 1991, s 32
Planning Act 2016, ss 5, 43, 44, 45, 51, 52, 59, 60, 62, 63, 68, 71 and 231
Planning & Environment Court Act 2016, ss 11 and 37

Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 28

CASES:

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor (2017) 222 LGERA 136
Buck v Bavone (1975-76) 135 CLR 110
East Melbourne Group Inc v Minister for Planning & Anor (2008) 23 VR 605
Eschenko v Cummins & Ors [2000] QPELR 386
Kelly v The Queen (2004) 218 CLR 216
MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17
Parramatta City Council v Hales (1982) 47 LGRA 319
Minister for Aboriginal Affairs v Peko-Wallsend Limited & Ors (1985-86) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Surfers Beachfront Protection Association Inc v Gold Coast City Council (No.2) [2022] QPEC 3
Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2007] QPELR 517

WB Rural Pty Ltd v Commissioner of State Revenue [2018] 1 Qd R 526

COUNSEL:

Mr C Hughes KC, Mr M Batty and Mrs S Hedge for the applicant
Mr B Job KC, Mr J Lyons and Mr R Yuen for the first respondent
Mr D Gore KC and Mr J Ware for the second and third respondents

SOLICITORS:

Herbert Smith Freehills for the applicant
City Legal for the first respondent
King and Wood Mallesons for the second and third respondents

Index

Introduction

Background

The statutory assessment and decision making framework

The issues to be determined

The objections

Was Riverside’s consent required to make the development application?

Was the development application code or impact assessable?

Were changes made in response to the information request?

Did the delegate fail to take into account compliance with overall outcomes in City Plan 2014?

Is the delegate’s decision legally unreasonable?

CCNP: Overall outcome 7(d)

CCNP: Performance outcome PO5/AO5.2

CCNP: Performance outcome PO8/AO8.1 & AO8.2

CCNP: Performance outcome PO51/AO51

WCO: Performance outcome PO16/AO16

TAPS: Overall outcome 2(c)

TAPS: Overall outcome 2(e)

TAPS: Performance outcome PO1/AO1

TAPS: Performance outcome PO9/AO9

BNO: Performance outcome PO2/A02

Conclusion: alleged non-compliance with City Plan 2014

Did the delegate err in making a decision under s 60(2)(a) rather than 60(2)(b) of the Act?

Discretionary factors militating against granting the relief sought

Answers to the lists of disputed issues

Disposition of the application

SCHEDULE A

SCHEDULE B

SCHEDULE C

SCHEDULE D

Introduction

1. In December 2020, Council’s delegate approved, subject to conditions, the second respondent’s development application to redevelop Eagle Street Pier in the central business district of Brisbane. The decision was made after the delegate conducted a code assessment under the Planning Act 2016 (the Act). The decision to approve was communicated by way of decision notice dated 17 December 2020 (the development approval). The development approval has taken effect[1] and authorises the carrying out of assessable development.

   [1]Pursuant to s 71(1) of the Act.

2. The applicant (Riverside) owns the Riparian Plaza building, which is on land adjoining the Eagle Street Pier redevelopment site. By its Further Amended Originating Application, filed by leave on 9 March 2022,[2] Riverside challenges the validity of the development approval and seeks declaratory and consequential relief. The relief sought, in short form, can be stated as follows:

   1.A declaration pursuant to sections 11(a) and (b) of the Planning & Environment Court Act 2016 that:

   (a)the development application approved by the delegate was impact assessable;

   (b)the development application approved by the delegate was not a properly made development application for the purposes of the Act;

   (c)changes made to the development application prior to the delegate’s decision to approve resulted in ‘substantially different development and were not a ‘minor change’ for the purposes of the Act; and

   (d)the development approval is invalid and of no effect.

   2.A consequential order that the development approval be set aside.

   [2]4.016.

3. The grounds relied upon by Riverside in support of the relief it seeks are limited to those identified in its written submissions, marked exhibits 6.004, 6.005 and 6.006.

4. The Further Amended Originating application (the application) is opposed by Council and the second and third respondents (the Dexus parties).

5. Given the nature of the proceeding, involving alleged invalidity of a decision under the Act, Riverside bears the onus.[3]

   [3]Eschenko v Cummins & Ors [2000] QPELR 386, [20] citing Parramatta City Council v Hale (1982) 47 LGRA 319, 335 and 393.

Background

1. On 17 June 2020, a development application was made to Council as assessment manager[4] seeking a number of development permits to redevelop Eagle Street Pier in two stages (the development application).  One of the development permits sought was for making a material change of use of premises for three defined uses in Council’s planning scheme, City Plan 2014, namely Bar, Centre activities and Hotel.[5]

   [4]1.003.001, p.15, question 15.

   [5]1.003.001, pp.12-13, question 6.1.

2. A review of the development application reveals the land identified as the subject of the development application:

   (a)   was described in DA Form 1[6] and an application report[7] as Lots 40 and 50 on RP817615, Lots 11 and 12 on CP SL12763, part of Lot 7 on RP183618, Lots 700, 701 and 702 on CP SL12734, and Lot 9 on CP SL12596;

   (b)   has a combined ‘Site Area’ of 22,307m², inclusive of an area of riverbed;[8]

   (c)   has a primary frontage to Eagle Street of 138.1 metres;[9]

   (d)   has a secondary frontage to Mary Street of 25.35 metres and Felix Street of 111.90 metres; [10]

   (e)   has a frontage to the Brisbane river in the order of 250 metres;[11]

   (f)    is improved with the Eagle Street Pier, Waterfront Place and part of Riverwalk, which is a publicly accessible pedestrian and cyclist path;[12]

   (g)   is included in the Principal centre zone of City Plan 2014;[13] and

   (h)   is included in the River precinct of the City centre neighbourhood plan (CCNP) of City Plan 2014.[14]

   [6]1.003.001, p.11.

   [7]1.007.026, p.1237. Section 2.5 of the same report identified the lots as the ‘Site’ over which the development application was made (1.007.026, p.1241).

   [8]1.003.006, p.61 and 1.007.024, p.1206.

   [9]1.007.026, p.1236.

   [10]1.007.026, p.1236.

   [11]1.003.008, p.210.

   [12]1.007.024, p.1206 and 1.007.026, p.1236.

   [13]1.007.024, pp.1214.

   [14]1.007.024, pp.1215.

3. A detailed description of the development proposed is contained in a report accompanying the development application. It was prepared by Place Design Group,[15] and identifies the key components of the development as including: (1) the demolition of existing buildings, Riverwalk, pontoons and in-river moorings; (2) the reclamation of 1,800m² of a riverbed lease (Lot 50 on RP817615) to facilitate the construction and expansion of an existing basement carpark; (3) two high rise premium grade office towers, each including basement carparking, a podium and public realm area; (4) the construction of a new Riverwalk, about 274 metres in length; and (5) a shared access arrangement servicing the proposed development and Riparian Plaza.

   [15]1.007.026, p.1254 – 1272.

4. The development application states it is subject to code assessment.[16]

   [16]1.007.026, p.1227; 1.007.026, pp.1288-1293; and 1.003.001, p.12, Part 3-Section 1.

5. The assessment benchmarks for the development application[17] were addressed, in part, in Attachments 23 to 24 of the Place Design Group report referred to above.[18]  The assessment benchmarks included: (1) the CCNP code; (2) the Waterway corridors overlay code; (3) the Transport, access, parking and servicing code; and (4) the Bicycle network overlay code.

   [17]1.007.026, pp.1294 to 1296.

   [18]1.007.026, p.1224 and p.1294, s 9.2.2.

6. By letter dated 13 July 2020, further material was provided to Council in relation to the shared access arrangement with Riparian Plaza. The letter described the existing access arrangement in these terms:[19]

   “The subject site (Eagle Street Pier) and Riparian Plaza are accessed via the existing lanes of the Eagle Street, Creek Street and Charlotte Street signalised intersection with this access arrangement retained as part of the [proposed development].

   Existing easement AA on Lot 50 SP817615 (Eagle Street Pier) benefiting Riparian Plaza and burdening Eagle Street Pier and easement AB on Lot 5 on SP140665 (Riparian Plaza) benefiting Eagle Street Pier and burdening Riparian Plaza provide for reciprocal vehicular and pedestrian access rights, with easement AB limited in height to 3.627m.”

   [19]1.009.032, p.1577.

7. The same letter described the proposed access arrangements, which did not involve reliance upon the area of Easement AB:

   “To remove any doubt, amendments have been made to the access arrangement information previously provided which…now shows access and servicing wholly within Lot 50 on SP817615 and is not reliant on the use of the area of easement AB.  The changes proposed are summarised as follows:

   -     Additional entry lane contained wholly within Lot 50 SP817615 with a minimum 4.5m height clearance for MRV, RCV and LRV vehicles. Number of lanes increased from 4 to 5 lanes.

   -     Single lane ingress and single lane egress and turning lanes maintained.

   -     Maintained bicycle/pedestrian pathway adjacent to the left egress lane.”

8. Two Confirmation notices were issued for the development application.[20] The second notice, dated 20 July 2020, was issued to correct an error in the first notice dated 17 July 2020. Both Confirmation notices state the development application was properly made on 9 July 2020, and that Part 4 of the Development Assessment Rules (DAR) (public notification) do not apply. The letter accompanying each notice identifies the decision-maker for the development application as a delegate of Council, namely the Principal Urban Planner, Mr James Heading.

   [20]1.009.035 and 1.009.037.

9. The development application required[21] referral to the Chief executive. The final referral response issued by the Chief executive is contained in a document dated 27 November 2020. It is described as ‘Changed SARA response–Waterfront Brisbane’.[22] The response is consistent with, and reflected in, the delegate’s decision to approve the development application subject to conditions.[23]

   [21]Referral was triggered for four reasons. They are identified in the Changed SARA response at 1.015.137, p.3160.

   [22]1.015.137, pp.3159 to 3169.

   [23]1.015.147, p.3253, Standard Advice, item 89).

10. By letter dated 7 August 2020,[24] a substantial information request (18 pages) was issued for the development application. The preamble to the information request is in the following terms:[25]

    “Council has carried out an initial review of the…application and has identified that further information is required to fully assess the proposal. The proposed development represents a significant opportunity to provide high quality commercial and mixed-use development with substantial improvements to accessibility along the river’s edge. The overall proposal is considered to be well designed, however the development requires further refinement and resolution of key aspects of the design to ensure an appropriate outcome given the prominence of the development in the City.

    A number of matters have been identified during the initial assessment, requiring amendments and/or further information be provided. It is recommended that following your review of the information request, a meeting is arranged with the relevant specialists to discuss the information request items in detail.”

    [24]1.010.047.

    [25]1.010.047, p.1773.

11. An examination of the information request reveals it raised a number of broad issues for consideration, including: (1) the width of the proposed upgrade to Riverwalk and associated planning scheme compliance;[26] (2) proposed building height within 5 metres of the high-water mark and associated planning scheme compliance; [27] (3) the calculation of Tower site cover as defined in the CCNP Code;[28]  and (4) proposed amendments to the existing shared access arrangement. [29]

    [26]1.010.047, pp.1774-1776.

    [27]1.010.047, p.1779.

    [28]1.010.047, p.1779.

    [29]1.010.047, p.1783-1784.

12. A full response to the information request was provided to Council under cover letter dated 16 October 2020.[30] The response included changes to the development application. The changes were said to be in direct response to the information request and not give rise to a ‘minor change’ issue under the Act.

    [30]1.012.097.

13. The changes made to the development application were identified in a report dated 16 October 2020.[31] The changes can be summarised as follows:

    [31]1.012.098, p.2506.

    (a)   the North Tower GFA was increased from 75,331m² to 76,743m²;

    (b)   the South Tower GFA was increased from 59,999m² to 61,322m²;

    (c)   the Podium GFA was increased from 9,860m2 to 12,671m2;

    (d)   the total GFA of the project was increased from 145,190m2 to 150,825m2;

    (e)   the building height of low-scaled tenancy spaces increased from RL14.05m and 2 storeys to RL20m and 3 storeys;

    (f)    Site cover increased from 9,919m2 (44.5%) to 10,887m2 (48.8%);

    (g)   Tower site cover reduced from 6,300m2 (28.2%) to 6,130m2 (27.5%);

    (h)   Setbacks of the podium and tower to the eastern boundary were reduced from 14.5 metres and 34 metres respectively to 13.3 metres/10.7 metres and 33.20 metres;

    (i)    the Tower setback to Riverwalk was increased from 13 metres to 17.9 metres;

    (j)    the width of Riverwalk increased from 6-18 metres (average of 10 metres) to 6-27.26 metres (average of 10m);

    (k)   the setback distance to the Riverwalk northern structure was increased and decreased at particular points;

    (l)    the setback to Eagle Street was increased from 3.15 metres to 3.3 metres;

    (m)    the area of landscaped open space increased from 12,608m2 (56.5%) to 15,184m2 (68.1%); and

    (n)   the total number of carparking, visitor, motorcycle and bicycle spaces were increased from 454 to 470 spaces.

14. The response to the information request included, inter alia: (1) amended architectural plans, sections, details and elevations;[32] (2) a comprehensive architectural design statement, including a range of visual aids such as photomontages;[33] and (3) a Public realm and landscaping report, also including a range of visual aids.[34]

    [32]1.010.072.

    [33]1.010.073.

    [34]1.010.074.

15. On 17 November 2020, a ‘Further Advice’ letter was sent by Council to Place Design Group.[35]  The preamble to the two and half page letter states:

    “An assessment has been completed of your response to the information request and outstanding items have been identified which are required to be resolved before a decision can be made.”

    [35]1.013.109.

16. The ‘outstanding items’ in the letter of 17 November 2020 included: (1) a query with respect to the calculation of Tower site cover, as defined in the CCNP code; and (2) the need for clarification in relation to the shared access arrangements with Riparian Plaza. The request for further information in relation to item (2) was in the following terms:[36]

    “Site Access

    8.    It is acknowledged changes have been made to ensure the site access does not impact the adjoining site. However, it appears that minor works such as line marking, etc. may be needed to the adjoining site.

    a)Provide amend (sic) plans and documentation demonstrating the site access is functional without requiring works to the adjoining site.”

    [36]1.013.109, p.2598.

17. By cover letter dated 20 November 2020, a full response was provided to the ‘Further Advice’ letter of 17 November 2020.[37] The response to item 8 above was in the following terms:

    “Ingress and egress for the development will remain wholly contained within the existing Eagle Street Pier property boundary and the development is not reliant on ingress or egress via Easement AB.

    All line marking, directional arrows and like that may be required will be contained wholly within the Eagle Street Pier property boundary.

    For clarity, amended plans have been provided that remove any suggestion of directional arrows and line marking works to the adjoining site.”

    [37]1.014.116, p.2795.

18. A total of 46 adverse submissions were received by Council during the assessment process, including submissions made on behalf of Riverside. Some were received prior to the response to the information request.[38]

    [38]1.009.039, 1.010.046, 1.010.056 – 1.010.071.

19. Whilst the development application was not the subject of formal public notification, the adverse submissions were considered in the assessment by the delegate.[39] They are discussed in a document titled ‘Notice about decision assessment report (s63 Development Application)’ (the NADA report).

    [39]1.015.148, pp.3331 to 3336.

1. The NADA report provides an assessment of the development application against some of the assessment benchmarks and addresses what appear to be the key planning issues for consideration identified by the author. The author is ‘Council’s assessment manager’. This is not the delegate, Mr Heading. The report also includes a recommendation about the fate of the development application. It was recommended that the development application be approved in accordance with a development approval package. Preceding that recommendation is a ‘Statement of Reasons for Decision’, which is in the following terms:[40]

   [40]1.015.148, p.3337.

“7.      STATEMENT OF REASONS FOR DECISION

1.    The development provides a built form within the City Centre that responds to its site characteristics and context, including the cityscape and streetscape. Development reinforces the distinct qualities of a close-knit city grid and well-spaced buildings along the river’s edge;

2.    The development is located and designed to maintain and improve views and vistas from the public realm to the Brisbane River and Story Bridge;

3.    The development responds to the broad range of market demands, including diverse tenancy sizes that provide small, flexible, and innovative incubator spaces for small businesses;

4.    The development is located and designed to enhance the accessibility and integration of existing and future public transport passenger facilities;

5.    The river edge is enhanced as a generous and unified urban public space for pedestrians and cyclists, diners and visitors;

6.    A multi-layered river edge provides for river activities at the water level, a waterfront promenade at the lower level, publicly accessible and active low-rise tenancies at the middle level, and well-spaced towers that are set back from the river at the upper level;

7.    High density waterfront development optimises the amount of public space at ground level, creating a sense of openness and space for pedestrians. New and improved spaces between buildings provide open visual and physical connections from the city grid to the river and beyond. Landscaping is used to create subtropical towers in a riverside garden setting;

8.    The development is tailored to the location of the site considering its intensity of activity, range of uses and proximity to higher capacity public transport services, government services, community facilities and other infrastructure and presents a coordinated and integrated building, open space and innovative landscaping response to the street and adjoining public spaces;

9.    The development involving new premises contributes to the economic activity and vitality of the location and is appropriate to its relative catchment and expected hours of operation; and

10.    The development ensures that the design of buildings reflects an intense urban form while providing open space and landscaping appropriate to the use and scale of the development, and which positively contributes to the streetscape character and local identity.”

1. Having regard to,[41] inter alia, the NADA report, Mr Heading decided to approve the development application, subject to 200 conditions and 13 Standard Advice notes. The decision was recorded in a document titled ‘Decision by delegate of Council’.[42] The document states:

   “1.     Having considered the application and assessment detailed above, I am satisfied that the application accords with the requirements of the Planning Act 2016 where applicable and as such:

   (a)approve the application in accordance with the attached development approval package

   (b)approve the infrastructure charges in accordance with the attached Infrastructure Charges Notice

   And direct that:

   2.  the applicant be advised of the decision…”

   [41]Affidavit of Heading, sworn 22 September 2021, para 41(j).

   [42]1.015.145.

2. The development approval package included condition 18, which has application to the material change of use component, and states:[43]

   “18)   Carry Out the Approved Development

   Carry out the approved development in accordance with the approved DRAWINGS AND DOCUMENTS.

   Note: This approval does not imply permission to enter neighbouring properties to carry out the construction (including, but not limited to, associated drainage and earthworks). Permission to enter neighbouring properties must be obtained from the relevant property owners.”

   [43]1.015.147, p.3203.

3. The term ‘drawings and documents’ (or similar expressions) is a defined term in the conditions package. It is defined by reference to a schedule of drawings or documents.[44] One of the approved drawings is the ‘Basement 1 River Level Floor Plan’.[45] This plan depicts, inter alia, the location of the shared access with Riverside. Condition 71, of the development approval is relevant to this access and states, in part (Condition 71):[46]

   “71)   Work for Transport Network – Road (Non-trunk) – External

   Construct the following roadwork with any associated drainage, verge, site access and services including street lighting for the Transport Network (Road) shown on the APPROVED DRAWINGS in accordance with the relevant Brisbane Planning Scheme Codes, the Queensland Manual of Uniform Traffic Control Devices and the AUSTROADS design standards:

   …

   -        modification of the existing shared access signalised intersection of Eagle St/Creek St/Charlotte St/shared site access generally in accordance with approved MRCagney Plans LS-1, LS-2, LS-3, LS-4 dated 13/11/2020 including the implementation of a left-turn protection delay for all left turn movements;

   -        Provide written consent from the owners of any adjoining properties for any site works to be undertaken on that property”        

   [44]1.015.147, pp.3194-3198.

   [45]1.015.147, p.3196.

   [46]1.015.147, p.3245.

4. The MRCagney plans referred to in Condition 71 were provided to Council in November 2020.[47] They depict the layout of the shared access, along with easement plans and cross-sections.  The layout plans confirm that:

   (a)   ingress and egress for the approved development will remain wholly within the Eagle Street Pier property boundary;

   (b)   the approved development is not reliant on ingress and egress via Easement AB; and

   (c)   all line marking that may be required will be contained within the Eagle Street Pier property boundary.

   [47]1.014.121, pp.2961-2964.

5. Mr Heading’s decision to approve the development application was communicated by way of decision notice dated 17 December 2020.[48] The statutory requirements with respect to a decision notice are set out in ss 63(2) and (3) of the Act; it must be in the approved form and state a number of specific matters.

   [48]1.015.146 and 1.015.147.

6. Where, as here, the assessment manager for a development application seeking approval for a material change of use is a local government, s 63(4) of the Act requires the promulgation of ‘a notice about the decision’, as distinct from the decision notice itself. The decision is to be published on the assessment manager’s website. Such a notice must state the matters, where applicable, identified in s 63(5). Subsections (5)(d) and (e) state:

   “(5) The notice must state –

   …

   (d)the reasons for the assessment manager’s decision; and

   (e)if the development was approved, or approved subject to conditions, and the development did not comply with any of the benchmarks—the reasons why the application was approved despite the development not complying with any of the benchmarks;”

7. The evidence suggests the NADA report was published on Council’s website as notice of the delegate’s decision. This occurred on a date unknown, but no later than 19 January 2021.[49]

   [49]This is referred to in a letter from Council’s solicitor to the Applicant’s solicitor dated 19 January 2021; Affidavit of Cowan, sworn 23 February 2021, exhibit MDC-2.

8. The NADA report does not contain reasons of the kind contemplated by s 63(5)(e) of the Act. This is in circumstances where, subject to s 62, which does not apply here, s 60(2)(a) of the Act directs an assessment manager to approve a code assessable development application to the extent it complies with all of the assessment benchmarks. The provision states:

   “(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—

   (a)must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development;”

9. By letter dated 23 December 2020, Riverside, through its solicitor, requested a statement of reasons for the delegate’s decision under s 231(3) of the Act, and s 32 of the Judicial Review Act 1991.[50] In a letter dated 19 January 2021, Council through its solicitor responded to this request in the following terms:[51]

   “The Council’s Notice About Decision Assessment Report for the Application, published on Council’s Development.i website in accordance with the requirements of section 63(4) and (5) of the Planning Act (a copy of which is attached), sets out the reasons for Council’s decision at section 7.

   Council’s opinion is that your client is not entitled to a statement of reasons under section 32 of the JR Act, as the decision on the Application is not one to which Part 4 of the JR Act applies (refer to section 31(a) of the JR Act).”

   [50]Affidavit of Cowan, sworn 23 February 2021, exhibit MDC-1.

   [51]Affidavit of Cowan, sworn 23 February 2021, exhibit MDC-2.

10. The Applicant did not commence proceedings that, if successful, would secure an order compelling the delegate to provide the requested statement of reasons.

11. This proceeding was commenced on 19 February 2021.

The statutory assessment and decision making framework

1. The development application was assessed and decided by the delegate as a code assessable application under the Act. An application of this kind is to be assessed in accordance with, inter alia, ss 45(3) and (4), and decided in accordance with ss 60(2) and 62. The assessment is confined. It must be carried out only against assessment benchmarks in a categorising instrument for the development and matters prescribed by Regulation.[52]

   [52]s 45(3)(a) and (b), The Act.

2. Section 5(1) of the Act does not apply to code assessment.[53] This provision requires an entity performing a function under the Act to do so in a way that advances the purpose of the Act.

   [53]s 45(4), The Act.

3. The power to decide the development application under s 60(2) applies to a properly made application,[54] which is defined by reference to s 51(5) of the Act.

   [54]s 60(1), The Act.

4. In this case, the delegate was satisfied the proposed development complied with all of the relevant assessment benchmarks.[55] This finding is not stated in the NADA report; however, it is consistent with the absence of a statement in the same document of the kind required by s 63(5)(e) of the Act. It is also consistent with the document recording his decision (paragraph [26]), which states the delegate was ‘satisfied the application accords with the requirements of the Planning Act 2016’. That the delegate was satisfied the development complied with all assessment benchmarks engaged s 60(2)(a) of the Act as distinct from subsections (2)(b) and (d). Whilst repetitious, it is useful to set out these provisions of the Act, which provide different paths to the exercise of the power to approve a code assessable development application:

   “(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—

   (a)     must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and

   (b)     may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

   …

   (d)     may, to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance cannot be achieved by imposing development conditions.

   [55]Affidavit of Heading affirmed 22 September 2021, para 44.

The issues to be determined

1. Riverside’s written submissions contend the delegate’s decision to grant the development approval, subject to conditions, is invalid and of no effect.[56]  Six grounds of challenge are advanced, namely:

   [56]Ex.6.004, para 2.

   (a)   there was no jurisdiction to make the decision because the development application could not be properly made without Riverside’s consent;[57]

   (b)   the decision is infected by jurisdictional error – the development application was impact rather than code assessable;[58]

   (c)   there was no jurisdiction to make the decision on the changed development application because the changes were not in response to an information request and the delegate did not consider whether the changes resulted in substantially different development;[59]

   (d)   the delegate’s decision was made without taking into account the following relevant considerations:[60]

   (i)      overall outcomes of the relevant codes in City Plan 2014;

   (ii)     non-compliance with assessment benchmarks in City Plan 2014;

   (iii)   relevant facts relating to easements AA and AB;

   (e) the delegate’s decision was infected by jurisdictional error by making the decision under s 60(2)(a) of the Act rather than s 60(2)(b);[61] and

   (f)    the delegate’s decision was unreasonable because of the matters raised by (d)(ii) and (d)(iii) above.[62]

   [57]Ex.6.004, para 2(d).

   [58]Ex.6.004, para 2(a).

   [59]Ex.6.004, para 2(e).

   [60]Ex.6.004, para 2(b)

   [61]Ex.6.004, para 2(c).

   [62]Ex.6.004, para 2(f).

2. Riverside also contends there are no discretionary considerations that militate against granting the relief it seeks.[63]

   [63]Ex.2, p.63, para 12.

3. Council and the Dexus parties oppose the application. They each contend the grounds of challenge to the validity of the decision have not been made out.

4. Before considering each of the above challenges, it is necessary to deal with objections taken to affidavit material.

The objections

1. Save for one exception, each party gave notice of objections in relation to material that was relied upon. I have dealt with the objections in Schedule A to these reasons for judgment.

2. The exception to be noted is that after the material to be relied upon was read and tendered, Riverside foreshadowed an objection to the evidence of Mr James Heading. In its written submissions, Riverside submitted that Mr Heading sought to impermissibly give evidence that he had assessed the development application against all relevant benchmarks.[64] The underlying rationale for the objection was that Mr Heading’s evidence was wholly different to the stated reasons for his decision. This objection was expanded in a schedule of objections to extend to ‘any part’ of Mr Heading’s affidavits that provide reasons not contained in the decision notice or NADA report.[65]

   [64]Ex.6.004, paras 76 and 77.

   [65]Ex.6.004, p.50.

3. I have dealt with the objection in the body of these reasons for judgment. In summary terms, I was satisfied that Mr Heading’s evidence did not seek to change the reasons for the decision. Rather, his evidence provides elucidation of the reasoning. It confirms, inter alia, that Mr Heading had regard to the relevant overall outcomes and performance outcomes of the assessment benchmarks and was satisfied compliance had been demonstrated. This evidence, in my view, is consistent with the absence of a note within the NADA report of the kind required by s 63(5)(e) of the Act and the document quoted in paragraph [26] above. As to the broader objection taken to Mr Heading’s affidavits, I do not accept it should succeed. I am satisfied the evidence is admissible for the reasons stated in Schedule A. The affidavits assist the Court understand his reasoning in relation to a number of decisions made during the assessment process.

4. I will now turn to deal with the disputed issues.

Was Riverside’s consent required to make the development application?

1. The DA form 1 and development application material did not identify Lot 5 on SP140665 (Lot 5) as land the subject of the development application. This is land owned by Riverside.

2. Riverside contends Lot 5 should have been included as land the subject of the development application. It also contends that, as the owner of Lot 5, its consent was required for the making of the development application by operation of s 51(2) of the Act, which is in the following terms:

   “(2)   The application must be accompanied by the written consent of the owner of the premises to the application, to the extent—

   (a)the applicant is not the owner; and

   (b)the application is for—

   (i)a material change of use of premises or reconfiguring a lot; or

   (ii)works on premises that are below high-water mark and are outside a canal; and

   (c)the premises are not excluded premises.”

3. The phrase ‘excluded premises’ in subsection (2)(c) above is defined in Schedule 2 of the Act. The definition is, in part, as follows:

   “excluded premises means—

   (a)generally—

   (i)premises that are a servient tenement for an easement, if the development is consistent with the easement’s terms; or…”

4. Section 51(4) of the Act required the delegate to be satisfied that, inter alia, the application complied with s 51(2). In the context of the issue raised by Riverside, that required the delegate to ask and answer two questions: (1) whether the development application sought approval for a material change of use of Lot 5; and (2) whether Lot 5 was excluded premises (as defined in the Act). Riverside submitted the delegate was not satisfied about either question at the time the confirmation notices were issued, being 17 and 20 July 2020.[66] This submission is correct.[67] Mr Heading confirmed this to be the case in his oral evidence.

   [66]Affidavit of Mr Heading affirmed 22 September 2021, paras 66 to 71 and T3-55.

   [67]Ex.6.004, paras 115, 116 and 120.

5. What consequences flow from Mr Heading’s concession?

6. The concession has the effect that, at the time the confirmation notices were issued:

   (a) Mr Heading was not satisfied the development application complied with s 51(2);

   (b) the application could not be accepted by Mr Heading under ss 51(4)(c) or (d);

   (c) the application was not a properly made application as defined in s 51(5), which states:

   “(5)An application that complies with subsections (1) to (3), or that the assessment manager accepts under subsection (4)(c) or (d), is a properly made application.”

   (d) s 51(4)(b) was engaged, which states:

   “(4)       An assessment manager—

   …

   (b)must not accept an application unless the assessment manager is satisfied the application complies with subsections (2) and (3);” (emphasis added)

7. That an application is not a properly made application under s 51(5) is also relevant to an assessment manager’s power to decide a development application under the Act. Provisions going to the decision making power are contained in Chapter 3, Part 3, Division 2 of the Act. Of particular interest is s 60(2). This provision applies to deciding an application involving code assessment. The power is enlivened where s 60(1) is met. The provision states:

   “60   Deciding development applications

   (1)This section applies to a properly made application, other than a part of a development application that is a variation request.”  (emphasis added)

8. If the examination of the owner’s consent issue were to cease at this point, Riverside has established the delegate did not have power to accept or decide the development application under the Act on 9 July 2020, or at the time the confirmation notices were issued. To accept the development application and commence the assessment process did not comply with the Act. This non-compliance, however, does not necessarily work invalidity. To work invalidity, the non-compliance needs to be attended with materiality.[68]

   [68]MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 at [29] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

1. Materiality of the kind necessary to work invalidity is absent here for two reasons.

2. First, Mr Heading did consider the issue of owner’s consent and was satisfied about this for the purpose of s 51(2) of the Act. He reached the satisfaction required by the Act after giving the Confirmation notices, but before taking the next step in the assessment process; the next step was the giving of the information request.[69] It was Mr Heading’s view prior to giving the information request that there was no requirement for Lot 5 to form part of the land the subject of the development application. He held this view for the remainder of the assessment and decision making process.[70]

   [69]Affidavit of Mr Heading affirmed 22 September 2021, para 71.

   [70]Affidavit of Mr Heading affirmed 22 September 2021, paras 70 and 71.

3. Mr Heading identified the reasons for his decision about owner’s consent in an affidavit affirmed 22 September 2021. His sworn evidence reveals that in determining this question he had regard to the material identified at paragraphs [11] and [12] and a report prepared by Council’s project team engineers.[71] Based on the internal report, Mr Heading concluded that ‘any vehicle entering the site would not be obliged by way of the physical layout of the access driveway to cross over the land covered by’ Easement AB.[72]

   [71]Affidavit of Mr Heading affirmed 22 September 2021, paras 66, 68 and 69.

   [72]Affidavit of Mr Heading affirmed 22 September 2021, para 70.

4. Second, the decision to approve the development subject to conditions does not authorise assessable development to occur on Lot 5, let alone authorise development to occur that is inconsistent with the terms of Easement AB. This is confirmed by the matters discussed in paragraphs [27] to [29] above. In particular, it is confirmed by condition 71 of the development approval read with the approved plans referred to in the condition itself.

5. Riverside was critical of Mr Heading’s approach to the issue of owner’s consent. It described his assessment as a ‘rolling assessment’.[73] He was criticised for not determining the issue of owner’s consent at the date the development application was said to be properly made, or at the time the Confirmation notices were issued. These criticisms are not without merit. The issue of owner’s consent should have been determined prior to giving the Confirmation notices. Neither criticism, however, works invalidity, in my view, having regard to paragraphs [57] to [60].

   [73]Ex.6.004, para 117 and 120.

6. Riverside advanced two alternative cases in relation to the issue of owner’s consent. The primary case, as I understood it, involved a contention that the need to provide owner’s consent for Lot 5 is an issue the Court can determine for itself, as an objective fact. In the alternative, it was contended the delegate’s decision about owner’s consent is affected by jurisdictional error because he failed to have regard to relevant considerations. It was also contended that the decision is, in any event, legally unreasonable.

7. Turning to deal with the jurisdictional fact allegation first, it was submitted that, despite Mr Heading’s view, Riverside’s consent was, and is, required to be obtained for the development application because:[74]

   “it is clear that as at…today…owner’s consent was required to be obtained from Riparian Plaza for the Dexus development because the Dexus development is not consistent with the terms of Easement AB, and because, on the balance of probabilities Easement AB will be used by the Dexus development.”

   [74]Ex.6.004, para 121.

8. At the outset, I can indicate that I have misgivings about approaching the issue of owner’s consent in the manner contended by Riverside. As s 51(4)(a) of the Act reveals, it is a matter about which the assessment manager is to be ‘satisfied’. In reaching that satisfaction here, Mr Heading was required to make determinations about matters involving questions of degree, judgment and impression. For example, he was required to form a view about the extent of the ‘site’ on which the material change of use was proposed. The evidence reveals this is a matter about which reasonable minds can, and do, differ. It is, in any event, unnecessary to express any concluded view about this because I am not satisfied Riverside has established that owner’s consent was, and is, required for the development application for the following reasons.

9. Riverside contends the Court would be satisfied that its consent was required for the development application because: (1) the application proposed a material change of use on Lot 5 where Easement AB is located;[75] (2) the applicant for approval is not the owner of Lot 5; and (3) Lot 5 is not excluded premises – the material change of use proposed is on premises that are the servient tenement for an easement (Easement AB) and the development is inconsistent with the terms of that easement.[76]

   [75]Ex.6.004, para 114.

   [76]Ex.6.004, para 121.

10. I accept item (2) is correct as a matter of fact.

11. I do not accept Riverside has established items (1) and (3).

12. Riverside’s submission with respect to item (1) relies upon the Court being satisfied that the development application originally made, (principally the Traffic Impact Assessment report prepared by MRCagney)[77] establishes the development will involve a material change of use on Lot 5.[78] The difficulty with this proposition is that the development application, specifically in relation to the shared access, was changed shortly after it was made to Council. So much is clear from the background discussed at paragraphs [11], [12], [21] and [22]. The change to the application made clear that the development did not rely upon the area of Easement AB for ingress and egress.

    [77]1004.010.

    [78]Ex.6.004, para 114.

13. It can also be observed that the report relied upon by Riverside to establish the material change of use, namely the MRCagney Report submitted to Council on 17 June 2020,[79] falls short of the mark; it does not establish the development would give rise to a material change of use of Lot 5 in the area of Easement AB.

    [79]1004.010.

14. The MRCagney report has three parts relevant to the issue of consent. First, the report contains a number of plans, one of which is a Basement 1 River Level Floor Plan. This plan indicates that the area of Easement AB was, at the time, included within the ‘site boundary’.[80]  Second, the report contains swept path diagrams. The diagrams demonstrate that a 12.5 metre Heavy Rigid Vehicle could execute a turning manoeuvre into, and within, the shared access and basement carparking areas. Three swept path diagrams indicate Easement AB would be traversed (i.e. by cutting the corner of the easement area) by Heavy Rigid Vehicles utilising the shared access.[81] Third, the report contains tables of data that are outputs from a SIDRA traffic modelling programme. The tabled data suggests no vehicle movements of the kind just referred to were anticipated in the AM or PM design peaks.[82]  In short, whilst the report indicates a 12.5 metre Heavy Rigid Vehicle may, when entering the shared access, cut the corner of Easement AB, there is no means of determining the number of times this movement is anticipated. Indeed, the tables containing outputs from the SIDRA model do little to assist. They give no sense of intensity.

    [80]1.004.010, p.52.

    [81]1.004.010, pp.62, 64 and 65.  

    [82]1.004.010, compare Creek Street L1 and Eagle Street R2 on pp.89, 90, 101 and 102 with the same entries on pp.91, 92, 103 and 104.

15. If a contrary view is taken, that is, the material is taken to establish that the development would give rise to a material change of use on Lot 5 in the area of Easement AB, it does not follow that owner’s consent was necessarily required. That is because consent was only required if the ‘development’ was inconsistent with the terms of Easement AB.

16. Easement AB burdens Lot 5.  It is granted in favour of Lot 50 on RP817615.[83]  Diagram K, read with the volumetric levels for the easement, suggest the easement ranges in height from 3.495 metres to 3.627 metres.[84]  As to its purpose, Form 9 states the purpose of the easement is for ‘vehicular and pedestrian access’.[85]

    [83]Ex. 5.006, p 19, 60, 62, 65 and 69.

    [84]Ex. 5.006, pp 68 and 69.

    [85]Ex.5.006, p.19, item 7.

17. Section 2.1 of the Schedule referred to in Item 8 of Easement AB states:[86]

    “2.1    Grant of Easement

    Subject to the provisions of this Easement the Grantor hereby grants to the Grantee in common with those given a like right by the Grantor full and free right and liberty as appurtenant to the Dominant Tenement for the Grantee and its tenants and its and their servants, agents, licensees and invitees at all times hereafter by day and by night with or without motor vehicles of every description (provided that the same can satisfactory obtain access to the Servient Tenement) and/or on foot for all purposes connected with the lawful use and enjoyment of the Dominant Tenement to go pass and repass to or over or from the Servient Tenement and to use the Servient Tenement for the purpose of access to and from the Dominant Tenement but not for any other purpose.”

    [86]Ex. 5.006, p 20.

18. The background set out at paragraphs [11], [12], [21] and [22] reveal that the development application in the form that was the subject of the information request, and subsequently decided by the delegate did not involve vehicles passing or repassing over Easement AB. In simple terms, no inconsistency arises because the development did not require Easement AB for ingress and egress.

19. The same can also be said for the development approved by the delegate. Condition 71 of the development approval incorporates, by express reference, a layout plan[87] of the shared access along with easement plans and cross-sections.  The layout plan confirms that:

    (a)   ingress and egress for the approved development will remain wholly contained within the Eagle Street Pier property boundary;

    (b)   the approved development is not reliant on ingress and egress via Easement AB; and

    (c)   all line marking that may be required will be contained wholly within the Eagle Street Pier property boundary.

    [87]1.014.121, pp.2961-2964.

20. Two points were raised by Riverside to establish inconsistency between the proposed development and the terms of Easement AB.

21. First, it was submitted the material change of use would, contrary to the development application material, involve service vehicles routinely[88] passing directly through Easement AB.  This, it was said, to arise because the driver of a service vehicle turning left from Creek Street into the site would have to make an election. The driver would need to elect to execute the turn in a manner that requires the vehicle to cut the corner of Easement AB to access the site, or alternatively, execute the turn in a manner which causes the vehicle to straddle two lanes before turning into the site.[89] It was contended that the second turning movement was not available to the driver as it would be contrary to Queensland Road Rules.

    [88]Affidavit of Trevilyan affirmed 13 August 2021, exhibit BRT-1, p.008, para 36.

    [89]Ex.6.004, paras 122(b) and 123.

22. Swept path diagrams before the delegate indicate a heavy vehicle executing a left hand turn into the site (seeking to avoid Easement AB) would traverse two lanes at the intersection of Eagle and Creek Street.[90] To determine whether this turning movement is unlawful, consideration needs to be given to the Transport Operations (Road Use Management – Road Rules) Regulation 2009, in particular, s 28(2).[91] This part of the Regulation anticipates that a turning movement of the kind illustrated on the swept path diagrams before the delegate may be lawful, provided certain preconditions are met. The provision relevantly states:

    [90]1.009.033, p.1678 (ingress manoeuvre); 1.014.121, p.2965 (ingress manoeuvre).

    [91]Ex.8.026, p.30.

    “(2)A driver may approach and enter the intersection from the marked lane next to the left lane as well as, or instead of, the left lane if—

    (a)     the driver’s vehicle, together with any load or projection, is 7.5m long, or longer; and

    (b)     the vehicle displays a do not overtake turning vehicle                         sign; and

    (c)     any part of the vehicle is within 50m of the nearest point of the intersection; and

    (d)     it is not practicable for the driver to turn left from within the left lane; and

    (e)     the driver can safely occupy the next marked lane and can safely turn left at the intersection by occupying the next marked land, or both lanes.”

23. The swept path diagrams contained in the material before the delegate depict a turning movement for a vehicle that is 12.5 metres in length. It is a vehicle of this length that will traverse two lanes when turning left into the site from the Eagle Street/Creek Street intersection. It is a vehicle that complies with s 28(2)(a) of the Regulation.

24. Riverside did not suggest that a vehicle of 12.5 metres, as depicted in the swept path diagrams, would fail to comply with s 28(2)(b), (c) and (e) of the Regulation. Rather, its submissions focused on subsection 2(d). This subsection requires Riverside to demonstrate that it would be practicable for a driver executing the turning movement to turn left into the site from the left lane of Creek Street.  

25. To demonstrate this, Riverside relied upon on the evidence of Mr Trevilyan, a traffic engineer. He prepared a swept path diagram to demonstrate the left turning movement was practicable.[92] An examination of the diagram reveals that a service vehicle can execute a left hand turn into the site without straddling two lanes in the intersection, provided the vehicle cuts the corner of Lot 5 in the area of Easement AB. This land does not form part of the redevelopment site. The issue is whether such a turning movement is practicable. In my view it is not: a turning movement to enter private land that, in the same movement, also traverses part of an adjoining site (which is also private land) is not a ‘practicable’ solution. Here, it is a solution that engages subsection 2(d).

    [92]Ex.2.006, exhibit BRT-1, p.8, Figure 2.

26. Second, it was submitted that the proposed material change of use would be inconsistent with the terms of Easement AB because it would result in service vehicles not only passing and repassing through Easement AB, but also extending above the volumetric height of the easement, which is 3.62 metres.[93]  The point was put by Riverside as highly as this: a vehicle exceeding 3.62 metres in height had no right to pass through Easement AB at all in these circumstances.[94]

    [93]Ex.6.004, para 114 and 122(a).

    [94]Ex.6.004, para 114.

27. I do not accept this submission. In the first instance, it wrongly assumes that service vehicles accessing the site could not lawfully turn left into the site without traversing Easement AB. It also wrongly assumes that a vehicle passing or repassing over the easement area, which is greater than 3.62 metres in height, has no right to pass at all. No authority was cited for this proposition. It is not a proposition I accept in any event. That a vehicle exceeds the height of the volumetric easement amounts to trespass to the extent of the exceedance. Otherwise, the right to pass or repass over the easement remains. That right is not lost as a consequence of the trespass outside of the volumetric easement.

28. Turning to the alternative case, Riverside submitted as follows:[95]

    “In effect, service vehicles would have the impossible task of either breaching the terms of Easement AB or breaching the terms of the Queensland Road Rules. The Dexus development requires consent and has failed to obtain it. The delegate failed to take into account these very relevant matters. That was an error in law affecting the validity of the application. Indeed, the decision of the delegate was also legally unreasonable given the utilisation of land not owned by the applicant for development approval and because the decision leads to an outcome where drivers of vehicles will be in breach of the Queensland Road Rules.”

    [95]Ex.6.004, para 124.

29. The alternative case is founded on three propositions, namely: (1) that service vehicles entering the site via a left hand turn will pass through the area of Easement AB, or breach Queensland Road Rules; (2) the delegate failed to take into account item (1); and (3) item (1) is a mandatory consideration determining whether owner’s consent was required for Lot 5.

30. For reasons given above, I do not accept that the first proposition has been established.

31. As to the second proposition, the delegate had regard to a number of documents relevant to the issue of access and owner’s consent. The relevant documents include:

    (a)   sections 2.4, 2.7, 7.1 and Attachments 2 and 9 in the Place design Group report, dated 17 June 2020;[96]

    (b)   the letter of 13 July 2020, referred to in paragraph [12];[97]

    (c)   the updated traffic impact assessment prepared by MRCagney provided to Council on 13 July 2020;[98]

    (d)   the letter of 3 August 2020 from Riverside Development Pty Ltd to Dexus property Group, attaching a traffic report prepared by Mr Trevilyan – the letter describes the consequences of the proposed development for Easement AB;[99]

    (e)   the letter of 2 September 2020 from Riverside Developments Pty Ltd to Dexus;[100] and

    (f)    the letter of 15 October 2020 from MRCagney to Place Design Group, responding to items 11, 43, 44, 45 and 47 of the information request.[101]

    [96]1.007.026.

    [97]1.009.032.

    [98]1.009.033.

    [99]1.009.042; see p.1739.

    [100]1.010.048.

    [101]1.012.089, in particular pp.2358-2362.

32. Having regard to the above documents, it is clear the delegate was able to assess and determine whether a service vehicle entering the site would pass or repass through Easement AB. The material also reveals that the delegate was able to assess the turning path of that vehicle. Based on the information before the delegate he was satisfied the vehicle could enter the site without utilising the area of Easement AB. This is what the delegate took into account. Further, to take into account that the turning movement was unlawful under the Queensland Road Rules would have been incorrect in any event.

33. As to the third proposition, it is well established that a decision-maker will fall into error where it fails to have regard to a consideration that it was bound to take into account.[102] The matters a decision-maker is bound to take into account is determined by construing the statute conferring the decision making power.[103]

    [102]Minister for Aboriginal Affairs v Peko-Wallsend Limited & Ors (1985-86) 162 CLR 24, 39.

    [103]Peko-Wallsend (Supra), 39 and Australia Pacific LNG Pty Ltd & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QCS 124, [191].

34. Here, it can be accepted, the delegate was required to consider whether owner’s consent had been provided for the land the subject of the development application. This is a requirement of ss 51(2) and 51(4) of the Act. The material reveals the point was considered by the delegate on a number of occasions. This consideration included an examination of whether consent was required for Lot 5.

35. As to the Queensland Road Rules, it was not established by Riverside that the delegate was bound to have regard to these rules in examining owner’s consent. Indeed, no submissions were made about this point. In any event, I am far from persuaded the Queensland Road Rules were a mandatory consideration for the delegate in the context of examining owner’s consent. This is because: (1) the considerations relevant to the issue are not expressly identified in the Act; and (2) there appears to be little, if anything, about the scope, subject matter and purpose of the Act that would suggest the rules are a mandatory consideration, as distinct from a consideration that may be taken into account by the assessment manager.

1. For completeness, I can indicate I was also satisfied that the material before the delegate demonstrates he had regard to the so-called ‘relevant considerations’ identified at paragraph 11 of Riverside’s amended list of issues. Here, it was asserted the delegate failed to take into account the following matters in the context of owner’s consent, namely: (1) access and the use of Easement AB; (2) the requirements and restrictions of Easement AA; and (3) existing development approvals.

2. A number of documents before the delegate, which include technical traffic reports prepared for the Dexus parties, make good that issues with respect to access and use of Easement AB were considered by the delegate. The relevant documents in this regard include those identified at paragraph [87].

3. As to the restrictions on Easement AA and existing development approvals, Riverside did not establish that these matters were mandatory considerations for the delegate in examining owner’s consent for similar reasons to those stated in paragraph [91]. I was not, in any event, persuaded that the considerations advanced Riverside’s case. In short, Easement AA burdens land the subject of the development application rather than Lot 5. Further, the existing development approvals referred to do not assist in answering either of the two questions identified at paragraph [52].

4. Riverside has failed to demonstrate the development application was not a properly made application. Rather, the true position is to the contrary. The development application was one that was properly made. It met this description on and from the time the delegate was satisfied as to the issue of owner’s consent. From that point in time onwards, the delegate was obliged to accept the development application by operation of s 51(4)(a) of the Act. The delegate’s power to decide the development application was also enlivened as s 60(1) of the Act was also satisfied prior to granting the development approval.

5. Given the above, the grounds of challenge identified in paragraphs [41](a), (d)(iii) and (f) (in part) have not been established.

Was the development application code or impact assessable?

1. As a local categorising instrument,[104] City Plan 2014 categorises development as, inter alia, assessable or accepted development.  Subject to limited exceptions, assessable development is lawfully carried out where it is authorised by an extant development approval.[105] It is uncontroversial that the development application sought approval for assessable development, namely ‘making a material change of use of premises’. The material change of use proposed includes three uses defined in City Plan 2014, namely Centre activities, Bar and Hotel.

   [104]s 43(3), the Act.

   [105]ss 43(1)(a) and 44(3), the Act.

2. The Act provides for two categories of assessment for assessable development, namely code and impact assessment.[106]  The category of assessment applying to the development application is to be determined by reference to City Plan 2014. It states the category of assessment that must be carried out for assessable development.[107]

   [106]s 45(1).

   [107]s 45(2), the Act.

3. Part 5 of City Plan 2014 contains the tables of assessment identifying: (1) the categories of development; (2) the category of assessment; and (3) the assessment benchmarks for assessable development.[108]

   [108]Ex.3.001, p.121, s 5.1.

4. In terms of the category of assessment, the starting position for all material changes of use under City Plan 2014 is that prescribed in s 5.3.2(1), which states:[109]

   “5.3.2                  Determining the categories of development and assessment

   1.A material change of use is assessable development requiring impact assessment:

   a.    unless the table of assessment states otherwise; or

   b.    if a use is not listed or defined; or

   c. unless otherwise prescribed in the Act or the Regulation.”

   [109]Ex.3.001, p.123.

5. Section 5.3.2(1) provides that all material changes of use under City Plan 2014, be they defined, undefined, listed or unlisted, are assessable development requiring impact assessment. There are two exceptions, namely: (1) where a table of assessment states otherwise; or (2) where otherwise prescribed in the Act or Regulation. No party suggests exception (2) is engaged in the circumstances of this case. The issue to be determined is whether s 5.3.2(1) of City Plan 2014 is displaced by a ‘table of assessment [that] states otherwise’.

6. Section 5.5 of City Plan 2014 contains tables of assessment for making a material change of use in a zone.[110]  Table  5.5.7 applies to the Principal centre zone[111] and identifies the following categories of development and assessment relevant to the development application:

   [110]Ex.3.001, p.131.

   [111]Ex.3.001, p.132.

Bar

Assessable development—Code assessment

If no greater than the number of storeys (except where within the City Centre neighbourhood plan area), building height, gross floor area, plot ratio and site cover specified in the relevant neighbourhood plan

Centre or mixed use code Principal centre zone code

Prescribed secondary code

…

Centre activities (activity group) where not caretaker’s accommodation

Assessable development—Code assessment

If involving a new premises or an existing premises with an increase in gross floor area, where no greater than the number of storeys (except where within the City Centre neighbourhood plan area), building height, gross floor area, plot ratio and site cover specified in the relevant neighbourhood plan

Centre or mixed use code

Principal centre zone code

Prescribed secondary code

…

Hotel

Assessable development—Code assessment

If no greater than the number of storeys (except where within the City Centre neighbourhood plan area), building height, gross floor area, plot ratio and site cover specified in the relevant neighbourhood plan

Centre or mixed use code Principal centre zone code

Prescribed secondary code

1. Each of the above entries in Table 5.5.7 can be engaged[112] by the proposed development where the following is established:

   (a)   the development is no greater than the building height specified in the CCNP;

   (b)   the development is no greater than the gross floor area specified in the CCNP;

   (c)   the development is no greater than the plot ratio specified in the CCNP; and

   (d)   the development is no greater than the site cover specified in the CCNP.

   [112]The Centre activities entry is to be considered because the proposed development includes uses falling within this use definition, and those uses are proposed in new premises that increase the gross floor area.

2. Riverside takes no issue with (b) and (c).

3. Riverside contends the proposed development has a building height and site cover exceeding that specified in the CCNP.

4. I will deal with building height first.

5. The case advanced by Riverside assumes this issue is determined as if it were a jurisdictional fact. That is to say, the Court is permitted to embark upon its own examination of the development application to determine whether the development is greater than the building height specified in the CCNP. It is unnecessary to express any concluded view about the correctness or otherwise of this assumption. This is because, even assuming this basis for challenge is available, Riverside did not persuade me the building height proposed is greater than that specified in the CCNP. This is so for the following reasons.

6. Relevantly for this case, the CCNP deals with ‘building height’ in two locations, namely Table 7.2.3.7.3.C and acceptable outcome AO51.[113]

   [113]Ex.3.001, pp 214 and 209 respectively.

7. Table 7.2.3.7.3.C forms part of the CCNP code. The table is described as ‘Maximum building height and maximum tower site cover’ and called up in Acceptable outcomes dealing with built form in the code.[114] The first entry in the table applies to the site because it is in the CCNP area and is: (1) greater than 3,000m² in size; and (2) not within the Quay Street precinct or Howard Smith Wharves precinct. The table provides that no maximum building height is specified for a site meeting this criteria.

   [114]Ex.3.001, p.197, AO5.2, AO6.1 and AO7; p.206, AO40 d.; p.208, AO46 and AO50; and p.210, AO57.2 and AO57.3.

8. The proposed development is no greater than the ‘building height’ specified in Table 7.2.3.7.3.C. As a consequence, it ceases to have a role to play in determining the category of assessment by reference to Table 5.5.7.

9. Riverside’s case with respect to building height focused on Acceptable outcome AO51 of the CCNP, which states:

   “AO51
   Development on premises adjoining the river has a:

   a.   maximum building height of 12m, measured from the finished level of Riverwalk, within 5m of the high water mark;

   b.   maximum building footprint of 50% within 10m of the high water mark.

   c.   Refer to Figure g for guidance.”

10. Subparagraph c refers to Figure g.[115] The figure, which is attached in Schedule B, is titled ‘River precinct cross section’. It depicts, inter alia, a structure (‘Low scale tenanted building’) adjacent to the River and in an area described as ‘Public Plaza’. The structure has a number of levels, one of which sits below a Public Plaza above. To the right of the structure is a vertical dotted red line identified as ‘High water mark (HWM)’. To the right of the high water mark is an area described as Riverwalk, which is cantilevered out from the edge of, and over, the River.  Above the area of Riverwalk is a note that reads ‘Low scale tenanted buildings and shading structures do not exceed a maximum height of 12m measured from the finished level of Riverwalk’.

    [115]Ex.3.001, p.230.

11. The material before the delegate includes a series of schedules providing an assessment of the proposed development against the assessment benchmarks, including the CCNP code.  In relation to AO51a of the CCNP, the assessment schedule states that the height of the structures adjoining the river exceed 12 metres.[116]  That there is a non-compliance with AO51a is confirmed by architectural sections through the proposed podium. These sections were before the delegate during the assessment process.[117]

    [116]Ex.1.006.022, p 1042.

    [117]Ex.1.003.006, pp 132-134 and 136.

12. The point made by Riverside is that Table 5.5.7 of City Plan 2014 is not engaged by the development because: (1) AO51a is a building height specified in the CCNP; and (2) the proposed development exceeds the building height specified in AO51a. Whilst I accept the development exceeds the height stated in AO51a, I do not accept AO51a specifies a ‘building height’ against which the proposed development is to be examined for the purposes of Table 5.5.7.

13. Table 5.5.7 is to be read with, inter alia, planning scheme definitions. This is confirmed by s 1.3.1 of City Plan 2014. This provision states that a term used in the document has the meaning assigned to it by, inter alia, the definitions in Schedule 1.[118]  I was not referred to any provisions of City Plan 2014 that suggest a contrary intention is to be assumed, be it express or implied, in relation to Table 5.5.7.

    [118]Ex.3.001, p.23.

14. ‘Building height’ is a defined Administrative term for City Plan 2014. It is in the following terms:[119]

    “Building height, of a building, means—

    a.the vertical distance, measured in metres, between the ground level of the building and the highest point on the roof of the building, other than a point that is part of an aerial, chimney, flagpole or load-bearing antenna; or

    b.     the number of storeys in the building above ground level.”

    [119]Ex.3.001, p.469.

15. This definition, read into[120] the parts of Table 5.5.7 that are relevant here, require the following questions to be asked and answered in relation to ‘building height’:

    (a)   Does the CCNP specify a vertical distance, measured in metres, between the ground level of the building and the highest point on the roof of the building (excluding the stated exceptions)?

    (b)   If yes to (a), does the development exceed the specified vertical distance?

    (c)   Does the CCNP specify the number of storeys in the building above ground level?

    (d)   If yes to (c), does the development exceed the specified number of storeys?

    [120]Kelly v The Queen (2004) 218 CLR 216, per McHugh J at [103].

16. Questions (c) and (d) are irrelevant to this case. This is because Table 7.2.3.7.3.C and AO51 do not specify a maximum building height, in storeys, for the site. It can be observed that Riverside did not suggest to the contrary.

17. The first question, (a), is the critical one.

18. To answer this question, the only provision of the CCNP relied upon by Riverside is AO51, which is an Acceptable outcome. It speaks of ‘Maximum building height’. The provision, along with Figure g, state how this maximum is to be measured. The measurement is not the same as that specified by the definition of building height in Schedule 1 of City Plan 2014.

19. The Acceptable outcome requires the height to be ‘measured from the finished level of Riverwalk, within 5 metres of the high water mark’ and vertically up to a point that is 12 metres high. This measurement is not the same as the vertical distance between the ground level of the building and its highest point (excluding the stated exceptions). Ground level of the building, and its highest point, are directly relevant to the definition of building height, but have no role to play in the measurement required by AO51a, and Figure g, of the CCNP.

20. Riverside submitted that AO51a does specify a building height as defined in City Plan.[121] It was submitted:[122]

    “19.When one returns to Figure g…for guidance…we see that… the ground level could only be the level of the building which is lower of the habitable level close to, but just above, the level of the ground which has been lawfully changed by the approval of the building.

    20.Figure g shows the Riverwalk at the same height as the ground level of the building. That is true also, of the development under challenge. At the relevant locations where the height of the building is within 5m of the high water mark, the ground level of each building is at the same level as Riverwalk, as demonstrated by the Memorandum….sent to [the delegate] on 6 November 2020.

    21.Therefore there is no difference between AO51 (the building height measured from the finished level of Riverwalk) and building height as defined (the building height measures (sic) from the ground level of the building).”  

    [121]Supplementary Submissions, p.4 para 18.

    [122]Supplementary Submissions, pp.4-5 paras 19 to 21.

21. The above submission assumes: (1) Figure g can be used for ‘guidance’; (2) Figure g shows the ground level of the building adjacent to the river as being the same level as Riverwalk; and (3) that the phrase ‘the finished level of Riverwalk’ has the same meaning, or is interchangeable with, the phrase ‘ground level of the building’.

22. With respect to (1), I accept it is correct to say Figure g provides guidance. This reflects the plain words of AO51c.

23. I do not accept item (2) is correct.

24. Figure g says nothing about what is, or what is not, the ‘ground level of a building’ or its highest point. There is no reference in the figure to ground level or the ground level of a building. Nor does the figure suggest the ground level of the building adjacent to Riverwalk is to be treated as the ground level of the small scale tenanted buildings.

25. In my view, to arrive at conclusion that the lower level of the small scale tenanted buildings depicted in Figure g is the ground level of the building requires an assumption to be made about ground level contours and how those contours impact upon the hypothetical development depicted. This hypothetical development could occur anywhere along the bank of the River in the River Precinct of the CCNP where contours are likely to vary in height.[123] The hypothetical development is also depicted as set into a site, and below a public plaza/ground level immediately above. In the absence of clear words in the figure and AO51, it is not sound, in my view, to make any assumptions about the ground level of any building or structure depicted in Figure g.

    [123]Ex.5.007, p.34, Precinct NPP-004.

26. Rather, Figure g confirms that the measurement to be undertaken is from the finished level of Riverwalk. This level may, or may not, be the same as the ground level of a building. Either way, this point is irrelevant. The ground level of the building has no work to do for the measurement contemplated by AO51a. 

27. There is good reason for this, in my view.

28. The reasoning emerges from an appreciation of ‘Ground level’ as defined in City Plan 2014 and an examination of the architectural sections forming part of the development approval.

29. The phrase ‘Ground level’ is defined in City Plan 2014 as follows:[124]

    “Ground level means—

    a.      the level of the natural ground; or

    b.      if the level of the natural ground has changed, the level lawfully changed.”

    [124]Ex.3.001, p.470.

30. The definition also includes an ‘Editor’s note’. The note is extrinsic material.[125] It refers to s 1.7.5 of City Plan 2014. A review of this section reveals that the applicable ‘level’ for subparagraph b. of the definition above is determined by Council and depicted in the 2002 BIMAP contours.[126] The approved architectural sections identify the 2002 BIMAP contour by way of a red line.[127] There is no equivalent line in Figure g. The absence of the contour line, even in indicative terms, suggests Figure g says nothing about ground level, or where it is located relative to the finished level of Riverwalk.

    [125]Ex.3.001, p.24, s 1.3.2, item 4.

    [126]Ex.3.001, p.33.

    [127]Ex.1.014.125, pp.3050, 3052, 3053 and 3054.

31. A review of the approved architectural sections reveal there is a ground level/plaza level, which sits at an elevation above the lowest level of the proposed structures adjoining the river. The drawings also reveal there is variability in terms of the 2002 BIMAP contour relative to the lowest level of the development adjacent to the river (in height terms). More particularly, the sections reveal that:

    (a)   the ground/plaza levels for the proposed development are at RL 6.0 metres AHD;

    (b)   the lowest level of the structures proposed adjacent to the river (Retail), which sit below the ground/plaza levels, are at RL 2.0 metres AHD;

    (c)   the lowest level of the structures adjacent to the river (Retail) sit partially above, and below, the 2002 BIMAP contour line – the extent to which it sits above and below the line is dependent on the particular point at which the section is taken; and

    (d)   Riverwalk sits partially above, and below, the 2002 BIMAP contour line at RL 2.0 metres AHD – again dependant on the particular point at which the section is taken.

32. The architectural sections illustrate there is variability in terms of levels, which leave room for doubt as to what is, or is not, the ground level of a building adjacent to the River. Once this is appreciated, it is not difficult to appreciate why a practical approach has been adopted. The drafters of City Plan 2014 have identified an alternative means of measurement for building height in this instance. That measurement is taken from a specific point, namely the finished level of Riverwalk. That this point was adopted, as distinct from the ground level of a building, is to be treated as intentional.

33. I also do not accept item (3) in paragraph [123] is correct. To suggest ‘the finished level of Riverwalk’ has the same meaning, or is interchangeable with, the phrase ‘ground level of the building’ needs to be grounded in an express provision of City Plan 2014 or supported by implication.

34. There is no express provision of City Plan 2014 to which I was referred.

35. As to matters of implication, I do not accept the phrases are to be treated as interchangeable. The phrases are different. Context suggests the difference is to be treated as deliberate. This is because the drafters of the planning scheme have adopted methods for measuring building height that include that stated in the administrative definition. They have also adopted a number of alternative measurement methods that depart from the administrative definition, where intended. The alternative measurement methods also differ when compared to each other. This is clear from Table 7.2.3.7.3.C. It can be seen from the table that:

    (a)   it does not include the phrase ‘finished level of Riverwalk’, which is a phrase used in the CCNP and directed towards building height and tower site cover;

    (b)   where the CCNP specifies a control with respect to the height of buildings/structures in Table 7.2.3.7.3.C it does so in a number of ways, only two of which ((i) and (ii) below) appear to engage the definition in City Plan 2014 for building height – it seeks to control height:

    (i)      by stating no maximum building height;

    (ii)     by stating a maximum building height by reference to storeys;

    (iii)   by stating a maximum height by reference to a specific RL level that is not to be exceeded;

    (iv)   by stating a minimum distance in plan or elevation from the underside of the Story Bridge; and

    (v)     by stating a maximum building height by reference to a specific RL and building height in metres/storeys, whichever is the lesser.

1. Having regard to the approved plans of development and photomontages, I accept it is open to form a view that is consistent with (a) to (d) above.

2. To establish each of (a) to (d), Riverside relied upon the evidence of Mr Perkins.[255] This evidence does not assist Riverside’s case for the same reasons given in paragraph [255]. The evidence, even if acted upon, does not establish legal unreasonableness.

   [255]Ex.2.003, pp.33-34.

3. In my view, the factual matters raised by Riverside are not, in any event, sufficient to demonstrate the delegate’s decision with respect to PO8/AO8 is legally unreasonable. This is so for the following reasons.

4. In the first instance, as Mr Gore KC and Mr Ware pointed out, the approved plans and the response to the information request made clear that the tower setbacks were compliant with AO8.1.[256] The only reasonable conclusion open to the delegate was that the development complied with this Acceptable outcome. This was not confronted by Riverside.

   [256]1.012.098, p.2507.

5. With respect to AO8.2, compliance or otherwise was informed by an examination of, inter alia, the approved plans and photomontages before the delegate. The visual aids support a finding of compliance with the Acceptable outcome. These same visual aids, along with the same findings made to examine compliance with overall outcome 3(h) of the CCNP, support a finding of compliance with PO8, in my view.

CCNP: Performance outcome PO51/AO51

1. Performance outcome PO51 of the CCNP, and the accompanying acceptable outcome, are in the following terms:

PO51

Development provides:

a.     low-level and well-spaced ground storey tenancies that activate the Riverwalk and create wide and active public spaces and connections to the river;

b.    towers set back a sufficient distance from the Riverwalk to not dominate the public realm, allow sunlight penetration and a sense of space, and to ensure a broad publicly accessible frontage to the river.

AO51

Development on premises adjoining the river has a:

a.   maximum building height of 12m, measured from the finished level of Riverwalk, within 5m of the high water mark;

b.   maximum building footprint of 50% within 10m of the high water mark.

c.   Refer to figure g for guidance.

1. Riverside submits that a finding of compliance with PO51 (and AO51) is indefensible. This submission is advanced on the footing that the performance outcome is directed towards the ‘attractiveness and openness of the river’.[257] The proposed plans and elevations[258] are said to demonstrate non-compliance because:[259]

   (a)   there is significant building bulk within proximity to the Riverwalk, which will dominate the public realm;

   (b)   the design makes no attempt to respect the desired wide active public spaces along the full frontage of the river;

   (c)   the design makes no attempt to ensure public accessibility to the river frontage;

   (d)   the design does not maintain or enhance the attractiveness of the river’s banks – it covers them with infrastructure; and

   (e)   from the river, the visual impressions provided in the material reveal the development comprises two tall, bulky, closely spaced towers dominating the river and Riverwalk.

   [257]Ex.6.004, para 86.

   [258]Referring to 1.010.72, plans dated 14, 15 and 16 October 2020.

   [259]Ex.6.004, para 87.

2. To establish each of (a) to (e), Riverside relied upon the evidence of Mr Perkins.[260] This evidence does not assist Riverside for the reasons given in paragraph [255]. This evidence, even if accepted, is insufficient in my view to establish the ground of challenge in any event.

   [260]Ex.2.003, pp.40-42.

3. There was, in truth, only one finding open to the delegate in relation to AO51. For reasons given above, the development did not comply with AO51a. This had the consequence that the delegate’s assessment was required to focus on the terms of PO51 itself. This was precisely how PO51 was approached and considered in the NADA report. The report stated:[261]

   “The design of the development is a layered form which descends from the towers, to the podium, public realm areas, low-scaled tenanted buildings and to the Riverwalk along the river’s edge. The proposed low-scale tenanted buildings exceed the maximum building height of 12m within 5m of the high water mark and therefore does not comply with AO51(a).

   The proposed building height is 16m–20m to the highest point within 5m of the high water mark. Despite the non-compliance, the development is considered to achieve compliance with PO51.

   The low-scale tenanted buildings along the riverwalk provide a range of active uses which allow for direct connections to the river. A number of food and drink tenancies are provided directly adjoining the riverwalk which promote active uses. The northern retail tenancy is 2 storeys and allows for casual surveillance over the riverwalk itself and views to the Brisbane River and Story Bridge.

   The north tower setback to the Riverwalk is 17.9m and the south tower setback to the Riverwalk is 11.4m. These setbacks ensure the towers do not dominate the public realm areas and allows for a broad publicly accessible frontage to the river.”

   [261]1.015.148, p.3327.

4. I am satisfied the above reasoning, which was before the delegate, is open and rational having regard to the architectural plans and photomontages in the development application material. This reasoning, along with the approved plans and photomontages, was material before the delegate. It provided a rational basis for concluding the development complied with PO51 of the CCNP. I am therefore not satisfied it has been demonstrated the delegate’s decision in this regard is legally unreasonable.

WCO: Performance outcome PO16/AO16

1. Performance outcome PO16 of the WCO, and the accompanying Acceptable outcome, are in the following terms:

PO16

Development of a site in the Brisbane River corridor sub-category abutting the Brisbane River:

a.       maintains and enhances the attractive appearance of the Brisbane River and its banks, when viewed from the Brisbane River, from development near the Brisbane River, or from other public viewing points;

b.       uses materials for buildings, structures and landscaping which complement surrounding buildings, the visual character of the area and the character, functions and values of the corridor section.

Refer to Figure c.

AO16

Development involving buildings (excluding ancillary buildings or structures), parking and servicing areas, and areas for the storage of materials, goods or solid waste:

a.       for the Brisbane River corridor sub-category – section 1 is set back a minimum 30m horizontal distance from the high water mark;

b.       for the Brisbane River corridor sub-category – sections 2, 3, 4 and 5 is set back a minimum of 20m from the high water mark; or

c.       if the existing development on an adjoining lot is located within 20m of the high water mark, the setback does not extend closer to the high water mark than the existing adjoining development.

1. Riverside submits the delegate’s finding of compliance with PO16 and AO16 is indefensible, the former being a provision that calls for an examination of the ‘attractiveness and openness of the river’.[262] This submission is advanced on the same footing as PO51 of the CCNP, namely, that the proposed plans and elevations[263] demonstrate non-compliance for the reasons identified in paragraph [279].

   [262]Ex.6.004, para 86.

   [263]Referring to 1.010.72, plans dated 14, 15 and 16 October 2020.

2. To establish non-compliance, Riverside also relied on the evidence of Mr Perkins.[264] This evidence does not assist for the reasons given in paragraph [255]. It is insufficient to establish the ground of challenge.

   [264]Ex.2.003, pp.40-42.

3. As to the submissions made on behalf of Riverside, they failed to explain why it was not open to the delegate to find compliance with PO16 having regard to, inter alia, the architectural plans and the NADA report. The latter addressed PO16 directly. It states:[265]

   “The subject site is located within Brisbane River corridor Section 3. The development is proposed partly within the corridor and within the 20m setback provision with access ramps and steps proposed along various sections of Riverwalk to enable equitable access between the varying levels within the 20m setback provision. Materials for buildings, structures and landscaping are used to enhance the visual character of the area and maintain the attractive appearance of the Brisbane River.”

   [265]1.015.148, p.3329.

4. The extensive material before the delegate provides a sound and rational basis for the above reasoning. The delegate had regard to the NADA report. He also had regard to the approved plans, the Urban context report (October 2020), the Public Realm and Landscape Concept Plan (October 2020) and the Architectural design statement (October 2020). I am satisfied all of this material, taken in combination, provided a sound and rational basis for the delegate to be satisfied compliance was demonstrated with PO16 of the WOC. That finding was also supported by the same findings made in relation to PO51 of the CCNP, which were also sound and supported by the material before the delegate. I am therefore not satisfied it has been demonstrated the delegate’s decision in this regard is legally unreasonable.

TAPS: Overall outcome 2(c)

1. Overall outcome 2(c) of TAPS is in the following terms:

   “c.     Development provides safe access for all transport modes that does not impact adversely on the efficiency and safety of the transport network or diminish the amenity of nearby land uses.”

2. Riverside submits the delegate ‘fell into error’ in finding the development complies with overall outcome 2(c).[266] Two reasons are advanced in support of the submission, namely, the delegate fell into error because:

   (a)   the development application and development approval require use of land that is not the subject of the application (Dexus land, Easement AB), thereby diminishing the amenity of nearby land uses;[267] and

   (b)   it will be necessary for a truck turning left from Creek Street into the shared access to utilise 2 lanes, which is not permitted under the Queensland Road Rules and will adversely impact on the efficiency and safety of the transport network.[268]

   [266]Ex.6.004, para 94(a).

   [267]Ex.6.004, para 94(a)(i).

   [268]Ex.6.004, para 94(a)(ii).

3. I do not accept it has been established that the implementation of the development approval will require the use of land that is not the subject of the development application. Nor do I accept the truck turning movement described above is unlawful.

4. As to the proposition that the use of the shared access will adversely impact on the efficiency and safety of the transport network, specific consideration was given to these impacts in the NADA report. The report states:[269]

   “The applicant’s analysis of the existing signalised intersection and traffic impacts to the network have been adequately demonstrated to not create adverse operational impacts from the anticipated demand.

   SIDRA is widely accepted as an industry standard for the assessment of intersection operation and is considered appropriate by Council in this location.”

   [269]1.015.148, p.3332.

5. Relevant background information to this statement, including the ‘analysis’ referred to, is to be found in: (1) Council’s information request; (2) the MRCagney response to the information request dated 15 October 2020; and (3) the MRCagney response dated 20 November 2020. These documents, in my view, provided a sound basis for the delegate to reach a conclusion consistent with that set out above in the NADA report.

6. It can be observed that the delegate had before him adverse submissions from Riverside attaching reports from a traffic engineer, Mr Trevilyan. The points Mr Trevilyan traverses in these reports were raised for the delegate’s consideration.  It was open to the delegate to reject Mr Trevilyan’s opinions in the face of the other traffic related material provided with the development application. That is precisely what occurred. It was not legally unreasonable for the delegate to take such a course.

7. Riverside also relies upon Mr Trevilyan’s affidavit evidence to establish non-compliance with overall outcome 2(c). His evidence was not before the decision-maker. It is inadmissible. It represents an attempt to agitate the merits of the delegate’s decision. This is impermissible in a proceeding such as this. In any event, Mr Trevilyan’s evidence, in my view, establishes no more than that an alternative view to the one formed by the delegate was open. I am not satisfied this demonstrates that the delegate’s decision with respect to overall outcome 2(c) is legally unreasonable.

TAPS: Overall outcome 2(e)

1. Overall outcome 2(e) of TAPS is in the following terms:

   “e.      Development provides site access arrangements to ensure that any adverse impacts on other development, the transport network and those who use it, are minimised to maintain amenity of the area and the safety and efficiency of the transport system.”

2. Riverside relies upon the reasoning advanced in relation to overall outcome 2(c) to establish legal error with overall outcome 2(e).

3. This ground of challenge fails for the reasons identified in paragraphs [289] to [294].

TAPS: Performance outcome PO1/AO1

1. Performance outcome PO1 of TAPS, and the accompanying acceptable outcomes, are in the following terms:

PO1

Development is designed:

a.     to include a technically competent and accurate response to the transport and traffic elements of the development;

b.     in accordance with the standards in the Transport, access, parking and servicing planning scheme policy;

c.     to ensure the efficient operation and safety of the development and its surrounds.

Note—The acceptable outcome and performance outcome can be demonstrated through a development application that:

·      is accompanied by sufficient information, including computer modelling input and output data, to allow the proposed development to be properly assessed against the requirements of this code and the standards and guidelines of the Transport, access, parking and servicing planning scheme policy;

·       is certified by a Registered Professional Engineer Queensland that all plans, documents and dimensioned drawings comply with the requirements of this code and the standards and guidelines of the Transport, access, parking and servicing planning scheme policy;

·       ensures that any computer modelling input and output data are accurate, reasonable and carried out in accordance with sound traffic engineering practices.

AO1

Development complies with the standards in the Transport, access, parking and servicing planning scheme policy.

1. Riverside submits the proposed development does not comply with PO1.[270] It contends this is so for five reasons, which were explained by Mr Trevilyan.[271]  The reasons are:

   (a)   the proposed development has not been adequately modelled – two egress lanes were not modelled as part of the proposed access arrangements;[272]

   (b)   there is a decrease in pedestrian safety due to additional crossing length resulting from the approval of the development application;[273]

   (c)   the modelling material provided to support the traffic analysis is flawed;[274]

   (d)   the configuration of the internal intersection is unacceptable;[275]

   (e)   pedestrians and cyclists utilising the access driveway will intermix with heavy vehicles.[276]

   [270]Ex.6.004, para 94(c)

   [271]Citing 2.001, para 56c; and 2.006, paras 6-15 & paras 29-30.

   [272]Ex.6.004, para 94(c)(i).

   [273]Ex.6.004, para 94(c)(ii).

   [274]Ex.6.004, para 94(c)(iii).

   [275]Ex.6.004, para 94(c)(iv).

   [276]Ex.6.004, para 94(c)(v).

2. The above points do not establish legal unreasonableness. They represent an attempt to agitate the merits of the delegate’s decision. This is impermissible.

3. In any event, for reasons given in relation to overall outcome 2(c) of the TAPS code, it is clear the delegate had material before him to properly, and justifiably, conclude compliance had been demonstrated with PO1. That Riverside, relying upon Mr Trevilyan’s inadmissible evidence, contend otherwise is insufficient to establish legal unreasonableness.

4. As I have already observed, the material before the delegate included submissions made on behalf of Riverside. Some of those submissions were directed towards traffic issues and attached reports prepared by Mr Trevilyan. The submissions made in this respect are dated 8 July 2020, 3 August 2020 and 2 September 2020. A report prepared by Mr Trevilyan accompanied the August and September submissions. Each of these documents were considered by the delegate. They were the subject of a response in the NADA report. The response is quoted at paragraph [291]. This response, read in conjunction with the various traffic reports provided to Council, provided a rational and intelligible basis for the delegate to be satisfied that compliance had been demonstrated with, inter alia, PO1 of the TAPS code.

5. Accordingly, I am not satisfied it has been established the delegate’s finding in relation to PO1 of the TAPS code is legally unreasonable.

TAPS: Performance outcome PO9/AO9

1. Performance outcome PO9 of TAPS, and the accompanying Acceptable outcomes, are in the following terms:

PO9

Development provides access driveways in the road area that are located, designed and controlled to:

a.     minimise adverse impacts on the safety and operation of the transport network, including the movement of pedestrians and cyclists;

b.    ensure the amenity of adjacent premises, from impacts such as noise and light.

AO9.1

No acceptable outcome for access is prescribed, for a major development (as described in the Transport, access, parking and servicing planning scheme policy)

AO9.2

Development which is not a major development (as described in the Transport, access, parking and servicing planning scheme policy) provides a single site access driveway in the road area to the lowest order road to which the site has frontage.

AO9.3

Development ensures that sight distances to and from all proposed access driveways in the road area and intersections are in compliance with the standards in the Transport, access, parking and servicing planning scheme policy.

AO9.4

Development provides access driveways in the road area which:

a.     are located, designed and controlled in compliance with the standards in the Transport, access, parking and servicing planning scheme policy;

b.     are not provided through a bus stop, taxi rank or pedestrian crossing or refuge.

AO9.5

Development makes provision for shared access arrangements particularly where it is necessary to limit access points to a major road.

1. Riverside submitted that the delegate fell into error in finding the development complies with PO9 for two reasons.[277] The reasons are the same as those identified for overall outcomes 2(c) and 2(e) of the TAPS code.

   [277]Ex.6.004, para 94(d).

2. For reasons given above, I do not accept Riverside has established that the delegate’s finding in relation to overall outcomes 2(c) and 2(e) is affected by legal error. For the same reasons, I am not satisfied a different conclusion ought be reached in relation to PO9 of the TAPS code.

BNO: Performance outcome PO2/A02

1. Performance outcome PO2 of BNO, and the accompanying acceptable outcomes, are in the following terms:

PO2

Development contributes to the creation of publicly accessible riverfront by providing a shared, continuous riverside pathway.

AO2

Development fronting the river provides a publicly accessible riverfront pathway via a linear land dedication of 10m width as measured from the riverfront ambulatory boundary.

1. Riverside submit the delegate’s finding with respect to PO2 (and AO2) is unreasonable.[278]  It is said the development application does not comply with AO2 because: (1) Riverwalk is 6 metres wide in places; (2) the land is not dedicated to Council; and (3) Riverwalk is not at the riverfront ambulatory boundary.[279] It is also said that the development application does not comply with PO2 because:[280]

   (a)   it is not 10 metres in width;

   (b)   the 4 metre difference (measured between what is proposed and AO2) is significant in cost terms;

   (c)   this section of Riverwalk is intended to be a primary cycle route, not an access way for private bars and restaurants;

   (d)   the Riverwalk as designed does not accommodate high speed commuting cyclists - provision should be made to separate cyclists and pedestrians;

   (e)   Riverwalk has, on both sides, dining, ferry terminals and other areas to which pedestrians will travel via the Riverwalk; and

   (f)    the planning scheme policy standards cannot be delivered on a 6 metre wide path as proposed.

   [278]Ex.6.004, para 90.

   [279]Ex.6.004, para 90.

   [280]Ex.6.004, para 91.

1. Riverside relies upon the evidence of Mr Trevilyan to establish (a) to (f).[281]

   [281]Ex.2.001, p.13, paras 51-52.

2. Riverside’s case in relation to PO2 of the BNO is, in my view, problematic. First, it relies upon material (Mr Trevilyan’s affidavit), which was not before the delegate and is inadmissible. Second, the submissions advanced place great weight upon non-compliance with AO2. Non-compliance of this kind does not establish non-compliance with PO2. The terms of PO2 must be given particular consideration.

3. The requirements of PO2 are clear. The provision required the delegate to be satisfied the development contribute to the creation of a continuous publicly accessible shared riverside pathway. To consider compliance, the delegate had the benefit of, inter alia, plans of development, including plans that illustrate the pathway proposed. These plans were approved by the delegate. They demonstrate a continuous publicly accessible shared pathway was proposed.

4. This was not lost on the author of the NADA report. The author dealt with the importance of Riverwalk and the proposed development in the context of adverse submissions. The report states:[282]

   “Council acknowledges the importance of the Riverwalk to the active transport, with the route shown as a primary bicycle route on Council’s Bicycle network overlay….

   …

   Since the original lodgement of the development application, the applicant has revised the Riverwalk pathway to address Council’s requirements. The development now provides a compliant 1047 bicycle parking spaces in accordance with City Plan 2014. Furthermore, consideration of the AustRoads requirements has also been addressed in the design and layout of Riverwalk. It is noted that along this section Riverwalk, not only are there strong longitudinal movements but there are strong latitudinal movements, with people entering the Riverwalk from the development site at different points and at regular intervals. This movement and interaction from pedestrian and place-making uses at the edge of the path, makes providing separated pathways difficult. Therefore, a shared arrangement with a clearly defined minimum 6m wide pathway has been identified on the approved plans and documents to provide adequate and safe movement for all users, including cyclists and pedestrians and this outcome is considered to take into account the objectives sought within the City Reach Waterfront Masterplan…”

   [282]1.015.148, p.3331-3332.

5. This opinion is, in my view, amply supported by the approved plans, particularly the Riverwalk sections and the site plan. It is also supported by the response provided to Council’s information request, items 6(a) and 11.

6. All of this material was before the delegate. It provides a sound basis to conclude that compliance had been demonstrated with PO2 of the BNO. The requirement to provide Riverwalk as part of the development is enshrined in conditions of the development approval.

7. This ground of challenge has not been established.

Conclusion: alleged non-compliance with City Plan 2014

1. Riverside has not established the delegate’s findings with respect to compliance with the above provisions of City Plan 2014 are legally unreasonable.

2. The grounds of challenge identified in paragraph [41](d)(ii) and (f) have not, as a consequence, been established.

Did the delegate err in making a decision under s 60(2)(a) rather than 60(2)(b) of the Act?

1. Section 60(2) of the Act states what an assessment manager must, or may, do after carrying out a code assessment. Subsection (2)(a) mandates that an approval follows where compliance is demonstrated with all of the assessment benchmarks for the development. Subsection (2)(b) applies where partial compliance is established with the assessment benchmarks for the development and states:

   “(2)To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—

   …

   (b)may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

   Examples—

   1An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks.

   2An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks and a referral agency’s response.”

2. Mr Heading determined that the development application complied with the assessment benchmarks in City Plan 2014.[283] An approval was required to follow as a consequence under s 60(2)(a) of the Act. The discretion conferred by subsection (2)(b) of the same provision did not arise.

   [283]Affidavit of Heading affirmed 22 September 2021, paras [44] to [45].

3. Riverside contends that Mr Heading’s decision in relation to compliance with the assessment benchmarks is legally unreasonable. If that was accepted, Riverside submits that:[284] (1) s 60(2)(a) was not the correct power to be exercised by the delegate; (2) the delegate was required to exercise the discretion conferred by s 60(2)(b); and (3) the exercise of that discretion would have significantly affected the delegate’s decision.

   [284]Ex.6.004, p.36, para 97.

4. The critical assumption underlying this ground of challenge has not been made out for the reasons given above. It has not been established that the delegate’s decision in relation to compliance with City Plan 2014 is legally unreasonable.

5. This ground of challenge fails.

6. The ground of challenge identified at paragraph [41](e) has not been established.

Discretionary factors militating against granting the relief sought

1. For the reasons given above, the Applicant has not demonstrated it is entitled to the relief it seeks in the Further Amended Originating Application. It is, as consequence, unnecessary to consider whether there are discretionary factors that militate for, or against, granting that relief.

Answers to the lists of disputed issues

1. Answers to each list of disputed issues are set out in Schedules C and D to these reasons for judgment.

Disposition of the application

1. The Further Amended Originating Application filed 9 March 2022 is dismissed.

SCHEDULE A

OBJECTIONS TO EVIDENCE

Objections to Applicant’s material

Affidavit of S G Peabody, Doc # 2.004

Paragraphs 3 to 4 (and corresponding exhibits)

Paragraph 3(c), 4 and the corresponding exhibits are relevant to the extent they assist the Court, by way of expert evidence, to understand the calculations underpinning the Applicant’s Scenario C or 3 case (Ex.6.004, paragraph 42). The calculations are based on material before the decision-maker.

Affidavit of S G Peabody, Doc # 2.007

Paragraphs 7 to 11

This evidence assists the Court, by way of expert architectural evidence, with respect to the interpretation of architectural plans before the decision-maker. It is admissible on this basis.

Affidavit of B R Trevilyan, Doc # 2.001

Exhibit BRT-1, Paragraphs 16 to 47

This evidence is inadmissible. It is irrelevant. It is material that was not before the decision-maker. In substance it is argumentative and impermissibly seeks to agitate the merits.

To the extent it is relied upon to assist the Court ‘understand’ the material before the decision-maker, namely traffic reporting before the decision-maker, this assistance is not required. The reports speak for themselves. Further, this is a specialist Court that routinely deals with traffic evidence of the kind before the decision-maker.

Exhibit BRT-1 Paragraphs 51 to 57

This evidence is inadmissible. It is irrelevant. It is material that was not before the decision-maker. In substance it is argumentative and impermissibly seeks to agitate the merits.

To the extent the evidence is relied upon to assist the Court ‘understand’ the material before the decision-maker, namely the traffic reporting before the decision-maker, this assistance is not required. The reports speak for themselves. Further, this is a specialist Court that routinely deals with traffic evidence of the kind before the decision-maker.

Affidavit of B R Trevilyan, Doc # 2.006

Exhibit BRT-1 Paragraphs 7 to 73

This evidence is inadmissible for the same reasons given for Doc # 2.001.

Affidavit of D W Perkins, Doc # 2.003

Exhibit DWP-3 Paragraphs 1, 7 to 14

Paragraph 1 is admissible, but only to the extent it references provisions of the planning scheme that are in issue.

The Applicant does not rely upon paragraphs 7 to 14. These paragraphs will be struck out.

Exhibit DWP-3 Paragraphs 15 to 18, 19(e)

The applicant does not rely upon these paragraphs. These paragraphs will be struck out.

Exhibit DWP-3 Paragraphs 26 to 29

This part of the report is inadmissible. It: (1) impermissibly engages in an exercise of construction of City Plan 2014; and (2) foreshadows an assessment against the planning scheme that was not before the decision-maker; is argumentative; and impermissibly agitates the merits.

Exhibit DWP-3 Paragraphs 37 to 51

The Applicant does not rely upon paragraph 49. It will be struck out.

As to the balance, this part of the report is admissible to a limited extent. It provides assistance in understanding, as a matter of planning practice and planning purpose, ‘site cover’ controls. It directly supports the submission made at paragraph 44 of Ex.6.004.

Exhibit DWP-3 Paragraphs 54, 62 to 64

Paragraph 54 is irrelevant.

Paragraphs 62 and 63 are irrelevant. They relate to Scenarios E and F, which were, in any event, not pressed by the Applicant.

Paragraph 64 is not relied upon by the Applicant and will be struck out.

Exhibit DWP-3 Paragraph 65

The Applicant does not rely upon paragraph 65. It will be struck out.

Exhibit DWP-3 Attachment 1

Attachment 1 is inadmissible. It represents an assessment of planning scheme compliance that was not before the decision-maker. The schedule is argumentative and impermissibly seeks to re-agitate the merits.

Exhibit DWP-3 Attachment 3

Attachment 3 is irrelevant.

Affidavit of D W Perkins, Doc # 2.005

Exhibit DWP-1 Paragraphs 3 to 49

The Applicant does not rely upon paragraphs 4 to 6, 20 to 22 and 48. These paragraphs are struck from the report.

Paragraphs 3, 7 to 19, 23 to 47 and 49 are inadmissible. It is material that was not before the decision-maker. Further, these parts of the report impermissibly seek to express opinions about the construction of City Plan 2014; are argumentative; and seek to agitate the merits.

Objections to Dexus parties’ material

Affidavit of J P Morrissy, Doc # 2.009

Exhibit JPM-1 Section 2.0

This evidence is inadmissible. It is irrelevant; contains expressions of opinion that were not before the decision-maker and, in any event, are not matters for expert opinion.

Exhibit JPM-1 Section 2.1

This evidence is inadmissible. It is irrelevant and not a matter for expert opinion.

Objections to Council’s material

Affidavit of G J Ovenden, Doc # 2.008

Exhibit GJO-1 Section 2.1

This evidence is inadmissible. It is irrelevant and contains expressions of opinion that are not matters for expert opinion.

Exhibit GJO-1 Section 3.0, paragraphs 31, 35 and 36

Paragraph 31 is inadmissible. It is irrelevant; is not a matter for expert opinion and in any event swears the issue.

Paragraphs 35 and 36 are inadmissible. They swear the issue on a matter of mixed fact and law.

Affidavits of J A Heading

Any part of Affidavits 1.001 and 1.002 relied upon to provide reasons for the decision not provided as reasons by Council with the decision notice or in response to the request for reasons.

Mr Heading’s evidence is admissible.

The evidence provides elucidation of his reasoning. The evidence does not impermissibly change, or augment, his reasoning. The evidence is consistent with the NADA report.

SCHEDULE B

FIGURE G

SCHEDULE C

ANSWERS TO RIVERSIDE’S AMENDED LIST OF DISPUTED ISSUES (6.006)

Question 1:  No.

Question 2:  No.

Question 3:  Unnecessary to answer.

Question 4(a):  No.

Question 4(b):  No.

Question 4(c):  No.

Question 4(d):  No.

Question 5:  No.

Question 6:No. The delegate decided the application under s 60(2)(a) of the Act. There was no error that vitiated the decision.

Question 7:  Unnecessary to answer.

Question 8:No. I would in any event have excused any non-compliance under s 37 of the Planning & Environment Court Act 2016.

Question 9(a):  No.

Question 9(b):  No.

Question 9(c):  No.

Question 10:  No.

Question 11(a):  No.

Question 11(b):  No.

Question 11(c):  No.

Question 12:  Unnecessary to answer.

SCHEDULE D

ANSWERS TO DEXUS PARTIES LIST OF DISPUTED ISSUES

Ex.8.022, Schedule 1

Question 1(a): No.

Question 1(b): Unnecessary to answer.

Question 2(a): At least 11,157m².

Question 2(b): Yes.

Question 3(a): Unnecessary to answer.

Question 3(b):  Unnecessary to answer.

Question 4A:  No.

Question 4B:  Unnecessary to answer.

Question 4C:  Refer to Schedule A.

Question 4D: No.

Question 5: No.

Question 6:  No.

Question 7:No. I would in any event have excused any non-compliance under s 37 of the Planning & Environment Court Act 2016.

Question 8:  Yes.

Question 9: Unnecessary to answer.

Question 10: Unnecessary to answer.

Question 11(a):  No.

Question 11(b): Unnecessary to answer.

Question 12: Unnecessary to answer.