Southway Services No. 2 Pty Ltd v Brisbane City Council - [2022] QPEC 8

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors [2022] QPEC 8

PARTIES:

SOUTHWAY SERVICES NO. 2 PTY LTD (ACN 153 362 460)
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

AND

DENNIS CHEAL
(First Co-respondent by Election)

AND

ELLEN CHEAL
(Second Co-respondent by Election)

AND

NETTA E MORRIS
(Seventh Co-respondent by Election)

AND

ROBERT W MORRIS
(Eighth Co-respondent by Election)

AND

ANNAMARIE NEWTON
(Ninth Co-respondent by Election)

AND

LORIS SUTER
(Twelfth Co-respondent by Election)

FILE NO/S:

993 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

15 March 2022

DELIVERED AT:

Ipswich

HEARING DATE:

6, 7, 9 and 15 September 2021

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST REFUSAL OF A DEVELOPMENT APPLICATION – where the Council refused to grant a preliminary approval for a material change of use for accommodation activities – where the land was in the Low impact industry zone – whether residential use of the land is contrary to the planning scheme intention – whether the variations to City Plan are consistent with the planning scheme – whether the location of the residential use is appropriate – whether the form of residential development is appropriate – whether there will be an unacceptable loss of submission rights – whether the proposed development can be provided without any unacceptable impacts – whether there is a need for retention of the land for low impact industry uses – whether there is a need for residential care facilities and retirement facilities – whether there is a need for student accommodation – whether there is a need for multiple dwellings – whether it is in the public interest to approve the proposed development

LEGISLATION:

City of Brisbane Act 2010 (Qld), s 232

Planning Act 2016 (Qld), ss 8, 43, 45, 59, 60, 61, 229, 288, 311

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

Planning Regulation 2017 (Qld), ss 31, 32, sch 24.

Sustainable Planning Act 2009 (Qld), ss 241, 242, 326

CASES:

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

Adpen Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 59; [2020] QPELR 732, not followed

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

Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, distinguished

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

Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 249, approved

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13, approved

Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; [2009] QPELR 435, approved

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409, distinguished

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

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

Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved

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

Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41, distinguished

Self Storage Helensvale Holdings Pty Ltd v Council of the City of Gold Coast [2021] QPEC 29, approved

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

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

COUNSEL:

C L Hughes QC, M Batty and B Rix for the Appellant
B D Job QC and N Loos for the Respondent

SOLICITORS:

Mills Oakley for the Appellant
Brisbane City Legal Practice for the Respondent
The Co-respondents by Election were self-represented

TABLE OF CONTENTS

Introduction

What is the applicable framework for the decision?

What is the nature of the application?

How does Southway Services characterise the application?

How does the Council characterise the application?

What does the evidence demonstrate?

What information was available to the submitters?
What further information was provided after public notification?
What is now sought?

What is the nature and effect of the development application?

What issues require determination?

Is the development of a range of residential uses on the subject land the antithesis of what City Plan intends?

Are the variations sought consistent with the rest of City Plan?

What forms of residential growth does City Plan anticipate?

Where does City Plan intend to accommodate residential uses of the type and density proposed?

Are the proposed variations consistent with the City Plan provisions regarding the location of the type of uses proposed and the forms of residential development?

Does the loss of submission rights for future applications support refusal of the proposed development?

Is there a need for further residential development of the type proposed in this location?

Does City Plan acknowledge the need for this type of development?

What was the evidence about the need for residential care and retirement facilities in the locality?

What was the evidence of demand for residential care facilities?
What was the evidence of demand for further retirement facilities?
How does City Plan address the demand for residential care and retirement facilities?

What was the evidence about the need for the other residential components?

Conclusion regarding whether there is a need for the proposed development?

Can the proposed development be provided without any unacceptable impacts?

Will there be unacceptable bushfire, flooding, or traffic impacts?

Will there be an unacceptable character and amenity impact?

Is there a need for the subject land to be retained for low impact industry uses?

What is the policy with respect to retention of land for industry?

Is the subject land appropriate for ongoing use for industry?

Is it appropriate to exercise the planning discretion to facilitate use of the subject land for accommodation activities?

Conclusion

Introduction

Within the suburb of Nathan, to the east of Toohey Road, there is a discrete pocket of land that is topographically contained by the natural landscapes of Toohey Forest Park, Griffith University (Nathan campus) and Wilcox Park. The area is accessed via Fairlawn Street. The dominant use in this discrete pocket is detached dwelling houses. The area also contains several small-scale duplexes and multiple dwellings of no greater than two storeys in height.
At the entrance to this discrete pocket of land, on the south-eastern corner of Fairlawn Street and Toohey Road, there is a service station, a hotel and liquor barn, an ambulance station, and a neighbourhood centre. The neighbourhood centre comprises a modern strip of small-scale assorted food outlets, a stand-alone take away food premises, and a building tenanted by a vetinary clinic, medical centre, hairdresser, and a shop.
To the east of the commercial uses and community facilities, on the southern side of Fairlawn Street at 53 Fairlawn Street, Nathan, there is a 68,910 square metre parcel of land (“the subject land”). Immediately adjoining the eastern boundary of the subject land are 10 lots containing houses and Toohey Forest Park. The southern boundary of the subject land adjoins bushland that comprises Wilcox Park and part of the Griffith University Nathan Campus.
The landform of the subject land is highly disturbed, having previously been used for a quarry. The land is currently used for industrial purposes. It is in the Low impact industry zone under Brisbane City Plan 2014 (“City Plan”).
The Appellant, Southway Services No. 2 Pty Ltd (“Southway Services”), seeks to redevelop the subject land for accommodation activities. To facilitate that, it made a development application to Brisbane City Council (“the Council”). The development application seeks a preliminary approval for a material change of use for accommodation activities (being dual occupancy, dwelling house, multiple dwelling, residential care facility, retirement facility, and rooming accommodation). Southway Services also seek to vary the effect of City Plan so that future applications for accommodation activities will not require public notification (“the variation request”).[1]
[1]Under the Planning Act 2016 (Qld), that part of a development application that seeks to vary the effect of the planning scheme is referred to as a variation request. The resultant approval is a variation approval.
Numerous residents of the local area objected to the development application. On 19 February 2019, the Council refused the development application. The Council notified Southway Services of its decision on 25 February 2019.
On 22 March 2019, Southway Services commenced this appeal against the Council’s decision. Several residents who objected to the development application elected to join the appeal. Although some of the residents withdrew prior to the hearing, six remain as active parties to the appeal. They oppose the grant of a preliminary approval and the proposed variations to City Plan.
It is for me to decide whether, in the exercise of the planning discretion, the development application and the variation request should be approved.
What is the applicable framework for the decision?
The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies.[2] In deciding the appeal, the Court must confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[3]
[2]The development application was made under the Sustainable Planning Act 2009 (Qld), but it was not decided before that Act was repealed. Pursuant to s 288 of the Planning Act 2016, the Council was required to assess and decide the development application under the Sustainable Planning Act 2009. Despite that, pursuant to s 288(5) of the Planning Act 2016, the resulting decision notice is taken to have been made under the Planning Act 2016, and pursuant to ss 229 and 311(4) of the Planning Act 2016, the appeal is brought under the Planning Act 2016. See Jakel Pty Ltd & Ors v Brisbane City Council& Anor [2018] QPEC 21; [2018] QPELR 763.
[3]Planning and Environment Court Act 2016 (Qld) s 47.
The appeal proceeds by way of hearing anew.[4] Southway Services bears the onus of establishing that the appeal should be allowed.[5]
[4]Planning and Environment Court Act 2016 s 43.
[5]Planning and Environment Court Act 2016 s 45.
Southway Services made its development application to the Council on or around 21 June 2017.[6] The development application seeks a preliminary approval under s 241 of the Sustainable Planning Act 2009 for a material change of use for accommodation activities as described in paragraph [5] above. That type of approval does not authorise the proposed development to proceed. A development permit is required for that.
[6]I infer that it was made around this time, as that is the date on the application forms that were tendered. The acknowledgment notice and the Certificate of the Chief Executive Officer of the Council indicate that the application was properly made on 27 June 2017.
Southway Services also seeks a preliminary approval under s 242 of the Sustainable Planning Act 2009. That type of approval varies the effect of a planning scheme. Southway Services seeks to vary the effect of City Plan by changing the level of assessment that would be required for future applications for accommodation activities such that future applications for accommodation activities do not require public notification. This part of the application is to be assessed as a variation request under the Planning Act 2016.
There is a broad discretion in determining the appeal.[7] The exercise of the discretion must be based on an assessment that:[8]
(a)must be carried out:
(i)against the assessment benchmarks in City Plan version 6 to the extent relevant;[9]
(ii)having regard to, relevantly, any development approval for, and any lawful use of, the premises and adjacent premises and the common material, including properly made submissions about the development application;[10]
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise); and
(c)may give such weight the Court considers appropriate to any amendments to City Plan. In this case, Southway Services says the current version of City Plan should be given weight.[11]
[7]Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).
[8]Planning Act 2016 ss 45(5) and 59.
[9]The Council tendered Certificates of the Chief Executive Officer of the Council, under s 232 of the City of Brisbane Act 2010 (Qld), certifying that the records of the Council show that the development application was properly made on 27 June 2017 and that version 6 of City Plan was in effect at that time.
[10]Planning Regulation 2017 (Qld) s 31 and sch 24.
[11]I was provided with version 21. The business day prior to the commencement of the hearing, version 21 was superseded by version 22. See Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 6 September 2021) 28. There was no challenge to the evidence of Mr Walker that he compared version 21 and version 22 and that there are no differences between them that are material to this trial. The amendments relate to Camp Hill. See Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 9 September 2021) 53.
The Council submits I should approach the assessment based on the principles about the public interest referred to in Adpen Pty Ltd v Moreton Bay Regional Council & Anor,[12] which cites Gold Coast City Council v K & K (GC) Pty Ltd[13] and Bell v Brisbane City Council & Ors.[14]I do not accept this approach. The principles relied on by the Council are at odds with more recent Court of Appeal authority, particularly Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors[15] (“Trinity Park”).
[12][2019] QPEC 59; [2020] QPELR 732.
[13][2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409.
[14][2018] QCA 84; (2018) 230 LGERA 374.
[15][2021] QCA 95.
In Trinity Park,[16] Dexus Funds Management Limited and Trinity Park Investments Pty Ltd relied on cases they referred to as the “trilogy”, namely Bell v Brisbane City Council & Ors,[17] Gold Coast City Council v K & K (GC) Pty Ltd[18] and Redland City Council v King of Gifts (Qld) Pty Ltd.[19] Trinity Park Investments Pty Ltd argued that although the trilogy of cases were decided in the context of s 326(1)(b) of the Sustainable Planning Act 2009, the Planning Act 2016 does not legislate a departure from principles stated in the trilogy of cases, which were said to have a long history in planning law jurisprudence.[20] Trinity Park Investments Pty Ltd submitted that unless there is a matter of public interest that overrides the public interest in maintaining a planning scheme, the need for a particular form of development should be met on a site that does not give rise to a conflict with the planning scheme. To approach the assessment otherwise was argued to be an error of law.
[16]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95.
[17][2018] QCA 84; (2018) 230 LGERA 374.
[18][2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409.
[19][2020] QCA 41.
[20]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [176].
In considering the argument, the Honourable Justice Brown, with whom the Honourable Justices of Appeal Philippides and Mullins agreed, observed:
“[178] The decision of Ashvan Investments Unit Trust v Brisbane City Council, the trilogy and the approach to be adopted in light of s 60 of the Planning Act was recently considered by this Court in the decision of Abeleda v Brisbane City Council. Mullins JA provided the leading judgment. While the approach set out in the trilogy of cases still has relevance under the Planning Act particularly the fact, as stated by McMurdo JA, that “a planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest the appropriate development of land,” in other respects the approach now to be adopted is quite different. As her Honour carefully set out in her judgment, s 60(3) of the Planning Act no longer incorporates what was described as the two step test and it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.
[179]For the reasons set out by Mullins JA set out in Abeleda, the statements of Sofronoff P, Philippides JA and McMurdo JA and in the trilogy of cases referred to in paragraphs 20 and 21 of the submissions of TPI that it is necessary to demonstrate that it is in the public interest it is necessary to override the scheme as it applies to the land, no longer represent the approach to be adopted under s 45 and s 60 of the Planning Act. As her Honour at [42] stated:
“…..The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any noncompliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.””[21]
[21]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [178]-[179] (citations omitted).
The written submissions on behalf of the Council made no reference to this appellate court authority, nor to the decisions of the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd,[22] Abeleda & Anor v Brisbane City Council & Anor,[23] or Wilhelm v Logan City Council & Ors,[24] wherein the Court of Appeal endorsed the analysis of His Honour Judge Williamson QC in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[25]
[22][2020] QCA 253; [2021] QPELR 987.
[23][2020] QCA 257; [2021] QPELR 1003.
[24][2020] QCA 273; [2021] QPELR 1321.
[25][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
I do not accept the approach urged by the Council or the principles cited from paragraph [48] of Adpen Pty Ltd v Moreton Bay Regional Council & Anor.[26] The relevant principles are contained in the Court of Appeal authorities referred to in paragraphs [15] to [17] above.
[26][2019] QPEC 59; [2020] QPELR 732.

As for the legislative framework for the variation request, a variation approval may specify the category of assessment (i.e. code or impact) required for different types of assessable development. It may set out the assessment benchmarks against which an assessment manager must assess assessable development. It may only do so in relation to development that is the subject of the variation approval, or development that is the natural and ordinary consequence of the development that is the subject of the variation approval.[27]
[27]Planning Act 2016 s 43(7).
In deciding the variation request, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.[28]
[28]Planning Act 2016 s 61(3).
The exercise of that discretion must be based on an assessment that considers:[29]
(a)the result of the assessment of that part of the application that sought a preliminary approval for a material change of use;
(b)the consistency of the variations sought with the rest of City Plan;
(c)the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and
(d)any other matter prescribed by regulation, including the common material.[30]
[29]Planning Act 2016 s 61(2).
[30]Planning Regulation 2017 s 32.

What is the nature of the application?

Ordinarily, the identification of the nature of the development sought in a development application is a matter about which there is no controversy. Here, there is no dispute that Southway Services seeks a preliminary approval for a material change of use for accommodation activities and a variation approval. That is where the common ground between the parties ends. Southway Services and the Council each characterise the application, and the nature of the proposed development, in markedly different terms. Their characterisation informs their respective approaches to the resolution of the issues in the case. As such, it is instructive to consider the differences in their characterisation of the proposed development before addressing the substantive issues in dispute.
How does Southway Services characterise the application?
Southway Services submits that the proposed development creates a total of five precincts across the subject land comprising:
(a)a “2 Storey Precinct (Townhomes)” along the Fairlawn Street frontage, for which there is detailed designs of the 24 proposed attached dwelling units;
(b)a “3 Storey Precinct (Apartments)” set behind the townhomes and 30 to 40 metres from Fairlawn Street, in which apartments up to three storeys in height are proposed;
(c)a “4 Storey Precinct (Apartments)” in the south-eastern corner of the subject land, furthest from the street frontage, in which apartments up to four storeys in height are proposed;
(d)a “4 Storey Precinct (Retirement/Apartments)” in the south-western corner of the subject land, in which aged care and retirement living is proposed in buildings up to four storeys in height; and
(e)a park and open space recreation precinct located centrally on the subject land.
Southway Services says that the only road access will be to Fairlawn Street, with a primary access in the west and an emergency access more easterly along that same frontage.
Development permits are not sought at this stage. Southway Services says that, accordingly, the associated detailed designs that would accompany a development permit are not available. Despite that, Southway Services says that the proposed development, if approved, will involve a total of no more than 750 dwelling units across the subject land, comprised of:
(a)24 units in the townhomes precinct;
(b)350 units in the four-storey retirement/aged care precinct comprised of:
(i)96 units in a residential aged care facility; and
(ii)254 independent living units in a retirement facility; and
(c)up to 376 units spread across the three and four storey apartment precincts.
According to Southway Services, the proposed development would provide a range of accommodation options to serve the requirements of:
(a)those in need of aged care;
(b)those seeking to retire in independent living units within their locality;
(c)those seeking to reside close to the employment opportunities and urban facilities nearby;
(d)students; and
(e)residents generally.
Southway Services notes that applications for the necessary development permits in each precinct will need to be assessed and approved having regard to the relevant City Plan codes in force at the time of such applications. It says this will ensure that such development meets the planning scheme requirements in terms of all relevant design parameters.
How does the Council characterise the application?
The Council says the application is for a preliminary approval to vary the effect of City Plan to permit the future development of a mix of residential uses. It says 24 townhouses across 11 individual buildings are proposed on the Fairlawn Street frontage. On the balance of the land, the Council says that the application seeks to facilitate some future combination of multiple dwellings, student accommodation and aged independent living and residential care uses. Precincts for those uses are indicated on Site Plan (SK-03 dated 17 December 2019). Those precincts indicate building height. The Council says there is no commitment to building footprints, layouts, uses, development intensity or density, or the arrangement of buildings.
The notes to the table of assessment advanced by Southway Services[31] identify the maximum number of dwellings within the nominated precincts. The Council accepts this. However, during the hearing, Southway Services confirmed that the table of assessment does not specify a minimum number of dwellings for the identified uses.
[31]This is attached to my order of 9 September 2021 permitting the development application to proceed based on a minor change.
The Council says the changes sought are such that an application to make a material change of use for a residential care facility and a retirement facility would be code assessable in the precinct identified in red on drawing no. SK-O3 and labelled “4 Storey Precinct (Retirement/Apartments)”. The Council says an application to make a material change of use for multiple dwellings or rooming accommodation would be code assessable in both the precinct identified in red on drawing no. SK-O3 and labelled “4 Storey Precinct (Retirement/Apartments)” and the precinct identified in blue on drawing no. SK-O3 and labelled “4 Storey Precinct (Apartments)”. As such, there is no guarantee that the proposed development will incorporate any residential care facility or retirement facility.
What does the evidence demonstrate?
To properly assess the development application, including that part that seeks to change the effect of City Plan, it is critical to understand the details of the application. As I have already noted in paragraph [21](c) above, the exercise of my discretion with respect to changes to the effect of City Plan must be based on an assessment that considers, amongst other things, the amount and detail of information included in, attached to, or given with the application and available to submitters.[32]
[32]Planning Act 2016 s 61(2).
What information was available to the submitters?
IDAS Form 1 describes the nature of the development as “Material change of use” and the approval sought as “Preliminary approval under s 241 and s 242 of SPA”. The proposed development is described on the form as “Preliminary Approval under s 242 to vary the effect of the local planning instrument. Refer to the attached planning report for further information”.
Item 1 of the mandatory requirements part of IDAS Form 5 (Material change of use assessable against a planning scheme) describes the proposed use as “Accommodation Activities”, referring to the City Plan definitions of dual occupancy, dwelling house, multiple dwelling, residential care facility, retirement facility and rooming accommodation. The column headed “no. of dwelling units (if applicable)” is blank.
The description of the proposed development on IDAS Form 31 (Application for preliminary approval varying the effect of a local planning instrument) mirrors that on Form 1. In terms of how the application seeks to vary the effect of City Plan, the form states “Refer to Section 7.1.1 of the attached planning report”.
The Planning Report describes the proposed development as “Preliminary Approval To vary the effect of a local planning instrument under s 242 of SPA 2009”. It also notes that as the preliminary approval will not authorise development to occur, the approval will establish code assessable uses for subsequent material change of use applications. The Executive Summary identifies levels of assessment by reference to an attached “Height Precinct Plan”.
The Planning Report indicates that the possible uses on the subject land include multiple dwellings and rooming accommodation and that the approval sought also allows for uses including a residential care facility and retirement facility. In response to strategic outcome L3.2, the Planning Report states that “the location or amount of ‘residential care facility’ and ‘retirement facility’ buildings is unknown”.[33]
[33]Exhibit 2.03 p 54.
Section 7.1.1 of the Planning Report (which is expressly referenced on the IDAS forms) includes a proposed level of assessment table and indicates that “[t]he table treats the subject site like low-medium density residential land”.[34]
[34]Exhibit 2.03 p 104.
The Planning Report identifies that the proposed development does not include specific building envelopes or locations. Rather, approval is sought for “only the ‘Height Precinct Plan’” and the “remainder of plans provided in Appendix B are indicative only, providing guidance for Council on one example of maximum code assessable development on the subject site”.[35] Each of the proposal plans contains a stamp confirming that the plans are indicative only and that future development would require additional approvals.
[35]Exhibit 2.03 p 105.
The Economic Impact Assessment lodged with the development application describes the development proposal as “a mix of residential uses potentially comprising retirement, or apartment living options, with the anticipated mix yet to be refined”.[36] That report notes that “[p]reliminary concepts envisage catering for a diverse demographic which could potentially include students, retirees, couples and families and will be subject to further indepth (sic) market analysis”.[37]
[36]Exhibit 2.06 p 4 (emphasis added).
[37]Exhibit 2.06 p 7 (emphasis added).
The Traffic Engineering Report that accompanied the development application describes the proposed development as a large-scale mixed-use development that has the opportunity to provide a combination of uses including low-medium density residential, rooming accommodation, residential care facility, retirement facility, care taker’s accommodation and dual occupancy dwellings. For the purposes of the traffic assessment, the traffic consultant assumed a maximum yield of 600 dwellings.[38]
[38]Exhibit 2.07 p 8.
During the application process, the Council sought further information. The Council’s information request sought detailed parameters for when development would be code assessable on the subject land, and greater detail for siting, built form, communal open space, and buffer parameters. The response to the request for built form details says:
“It is not considered appropriate for the type of preliminary approval proposed to provide detailed built form design, given this will ultimately be determined by the future use and relevant associated codes in the assessment criteria”.[39]
[39]Exhibit 2.16 p 7.
In terms of siting, the response says:
“Similar to the discussion on built form above, the siting of a building will also be subject to the specific location onsite ... This, however, cannot be determined without detailed architectural design. Given the preliminary approval does not seek to include specific building envelopes or locations for development inside each precinct, this is not provided as part of this application”.[40]
[40]Exhibit 2.16 p 7.
The Council’s information request also sought an anticipated dwelling density across the subject land. The response states that:
“As the preliminary approval includes the possibility for a number of residential uses and variety of heights as code assessable, an “expected breakdown” of anticipated density is not able to be provided for the site. Subsequent development applications will determine the mix …”.[41]
[41]Exhibit 2.16 p 10.
The response went on to suggest that a density range between 600 and 750 units might be achieved. The series of plans which form part of the response to the information request are also stamped as indicative only.
Public notification was carried out between 22 November 2017 and 24 January 2018. The public notice described the development application as one for “preliminary approval under s 242 - Accommodation Activities (Dwelling House, Dual Occupancy, Multiple Dwelling, Retirement Facility, Residential Care Facility and Rooming Accommodation)”.
The Council received 76 properly made submissions about the development application. The submissions reveal community opposition to development of the density proposed. One of the submissions was a petition signed by 82 community members opposing the development, some of whom also lodged properly made submissions. Several submissions state that the application does not include sufficient detail on the development. A map showing the addresses of most of the submitters illustrates that there was opposition to the proposed development from across the discrete residential area to the north and east of the subject land.
What further information was provided after public notification?
Following public notification, the Council wrote to Southway Services about what it considered were unresolved matters, including how the proposed densities achieve the intentions of the Low-medium density residential zone in terms of building heights and scale.[42]
[42]Exhibit 2.20 p 2.
Southway Services responded.[43] Part of the response referred to the subject land being “designated for low-medium density residential”.[44] It also referred to “[t]he proposed maximum density of 750 dwellings”.[45] When addressing a summary of the issues raised by the submissions, in respect to the issue “Lack of Information Provided”, the response states:
“A number of submissions outlined that the proposal did not include sufficient detail on the development. The information provided is sufficient for the type of application this is, being a preliminary approval. In this regard we note:
·This approval does not allow any construction to occur onsite.
·It does not include the approval of any specific buildings or locations of buildings, but rather a number of uses and location of height precincts for future applications to be lodged over the site.
·Any use ultimately approved within this ‘preliminary approval’ does not mean that all will be applied for or constructed onsite.
·…
·The preliminary approval will be in place on the site for ten (10) years and does not immediately change the underlying Low Impact Industry zoning.”[46]
[43]Exhibit 2.21.
[44]Exhibit 2.21 p 10.
[45]Exhibit 2.21 p 13.
[46]Exhibit 2.21 p 21 (emphasis added).
What is now sought?
On the third day of the hearing, Southway Services applied to make a minor change to its development application to permit it to include notes after the proposed table of assessment. This application was unopposed. On 9 September 2021, I ordered that the hearing proceed on the development application so changed. The document that identifies the proposed variations is in the following terms:
“TABLE OF ASSESSMENT

MATERIAL CHANGE OF USE – 2 STOREY TOWNHOMES AND DETACHED HOUSES PRECINCT

Use

Level of Assessment

Assessment Criteria

Dual Occupancy
Code Assessment

If development is a maximum of 2 storeys and 9.5m above NGL.

·     Low-Medium Density Residential Zone Code (2 Storey Mix)

·     Dual Occupancy Code

·     Filing (sic) and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Stormwater Code

·     Transport. Access. Parking and Servicing Code (sic)

·     Waste Water Code

Dwelling House
Self-Assessment

If complying with all self-assessable acceptable outcomes

Code Assessment

If not complying with all self-assessable acceptable outcomes

·     Low-Medium Density Residential Zone Code (2 Storey Mix)

·     Dwelling House Code

Multiple Dwelling

Code Assessment

If development is a maximum of 2 storeys and 9.5m above NGL.

·     Low-Medium Density Residential Zone Code (2 Storey Mix)

·     Multiple Dwelling Code

·     Filing (sic) and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Park Planning and Design Code

·     Stormwater Code

·     Transport, Access, Parking and Servicing Code

·     Waste Water Code

MATERIAL CHANGE OF USE – 3 STOREY APARTMENT PRECINCT

Use

Level of Assessment

Assessment Criteria

Dual Occupancy
Code Assessment

if development is a maximum of 3 storeys and 12m above NGL.

·     Low-Medium Density Residential Zone Code (Up to 3 Store) (sic)

·     Dual Occupancy Code

·     Filling and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Stormwater Code

·     Transport, Access, Parking and Servicing Code

·     Waste Water Code

Dwelling House
Self-Assessment

If complying with all self-assessable acceptable outcomes

Code Assessment

If not complying with all self-assessable acceptable outcomes

·     Low-Medium Density Residential Zone Code (Up to 3 Storevs) (sic)

·     Dwelling House Code

Multiple Dwelling
Code Assessment

If development is a maximum of 3 storeys and 12m above NGL.

·     Low-Medium Density Residential Zone Code (Up to 3 Storeys)

·     Multiple Dwelling Code

·     Filling and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Park Planning and Design Code

·     Stormwater Code

·     Transport, Access, Parking and Servicing Code

·     Waste Water Code

Rooming Accommodation
Code Assessment

If development is a maximum of 3 storeys and 12m above NGL.

·     Low-Medium Density Residential Zone Code (Up to 3 Storevs) (sic)

·     Rooming Accommodation Code

·     Multiple Dwelling Code

·     Filling and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Stormwater Code

·     Transport, Access, Parking and Servicing Code

·     Waste Water Code

MATERIAL CHANGE OF USE – PARK RECREATION PRECINCT

Use

Level of Assessment

Assessment Criteria

Communal Open Space

-

-

MATERIAL CHANGE OF USE – 4 STOREY RETIREMENT PRECINCT

Use

Level of Assessment

Assessment Criteria

Residential Care Facility
Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

·     Medium Density Residential Zone Code

·     Multiple Dwelling Code

·     Residential Care Facility Code

·     Childcare Centre Code

·     Filling and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Park Planning and Design Code

·     Stormwater Code

·     Transport. Access, Parking and Servicing Code (sic)

·     Waste Water Code

Retirement Facility
Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

·     Medium Density Residential Zone Code

·     Multiple Dwelling Code

·     Residential Care Facility Code

·     Childcare Centre Code

·     Filling and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Park Planning and Design Code

·     Stormwater Code

·     Transport. Access, Parking and Servicing Code (sic)

·     Waste Water Code

MATERIAL CHANGE OF USE – 4 STOREY APARTMENT PRECINCT

Use

Level of Assessment

Assessment Criteria

Multiple Dwelling
Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

·     Medium Density Residential Zone Code

·     Multiple Dwelling Code

·     Filling and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Park Planning and Design Code

·     Stormwater Code

·     Transport. Access, Parking and Servicing Code (sic)

·     Waste Water Code

Rooming Accommodation
Code Assessment

If development is a maximum of 4 storeys and 15m above NGL.

·     Medium Density Residential Zone Code

·     Rooming Accommodation Code

·     Multiple Dwelling Code

·     Filling and Excavation Code

·     Infrastructure Design Code

·     Landscape Work Code

·     Outdoor Lighting Code

·     Stormwater Code

·     Transport. Access, Parking and Servicing Code (sic)

·     Waste Water Code

Notes:
1.The above uses are defined pursuant to CityPlan (sic) 2014 (Version 6).
2.Uses not referred to in the Table of Assessment for a particular precinct are not contemplated by this development approval and are instead regulated by CityPlan (sic) 2014.
3.The assessment criteria (as nominated in the Table of Assessment) that are to apply to future development applications made under this development approval are the relevant CityPlan (sic) 2014 codes referred to (or their equivalent code as at the date of lodgment (sic) of any further development application).
4.Communal open space does not have a prescribed level of assessment as the proposed communal open space would be accepted development under CityPlan (sic) 2014.
5.This development approval provides a maximum of 750 dwellings for the following proposed uses:
a.Multiple dwellings and duplexes in the 2 storey townhouse precinct: 24 attached townhouses;
b.Retirement facility within the 4 storey retirement/apartment precinct: 254 dwellings;
c.Residential care facility within the 4 storey retirement/apartment precinct: 96 dwellings;
d.Balance of dwellings not to exceed 376 in the 3 storey apartment and 4 storey apartments precincts.

6.Paragraphs 1, 2, 3 and 5 above can be made conditions of the approval.”

What is the nature and effect of the development application?

As is evidenced by the matters referred to above, the part of the development application that seeks a preliminary approval for a material change of use is almost devoid of detail. The change of use for which a preliminary approval is sought is a change from the current industrial use of the subject land to:
(a)a use that includes 24 townhouses in 11 buildings fronting Fairlawn Street with a built form that is generally in accordance with that shown on the proposed plans;[47] and, otherwise
(b)in an area of the subject land that is set behind the townhouses and about 30 to 40 metres from Fairlawn Street, a use that may include dual occupancies, or dwelling houses, or multiple dwellings, or rooming accommodation, or a combination of those uses, where the associated built form is a maximum of three storeys in height and 12 metres above natural ground level;
(c)in an area in the south-eastern corner of the subject land, furthest from the street frontage, a use that may include multiple dwellings or rooming accommodation, or a combination of those uses, where the associated built form is a maximum of four storeys in height and 15 metres above natural ground level;
(d)in an area in the south-western corner of the subject land, a use that may include multiple dwellings, or rooming accommodation, or residential care facilities, or retirement facilities, or a combination of those uses, where the associated built form is a maximum of four storeys in height and 15 metres above natural ground level; and
(e)a park and open space recreation precinct located centrally on the subject land.
[47]Exhibit 7.7.
It is apparent from Note 2 that the proposed table of assessment is intended to operate in conjunction with the table of assessment for material change of use in the Low impact industry zone, rather than replacing it. As such, the grant of the variation approval would increase the range of uses that could be approved without an impact assessable application. The variations do not change the level of assessment for those uses currently contemplated in the Low impact industry zone, such as car wash, emergency services, low impact industry, and medium impact industry uses.[48]
[48]See Planning Act 2016 s 43(7); City Plan Table 5.5.15.
The Notes to the proposed table of assessment do not identify which document defines the “precincts” referred to in the table. Southway Services tendered 14 plans that it says form part of its application. Of the 14 plans, only two contain precinct descriptions that bear some resemblance to those contained in the proposed table of assessment. They are drawing no. SK-02 and drawing no. SK-03.
Drawing no. SK-02 is titled “BUILDING HEIGHT PLAN”. It depicts coloured building blocks and a street layout. The legend indicates that the coloured building blocks are two, three and four levels above natural ground level. A note on the drawing says:
“With the exception of the 2 storey townhomes and detached houses precinct, built form is indicative only.”
Overlaid on the drawing is a reference to “precincts”, but there are no boundaries for the precincts. Given the absence of boundaries, it seems reasonable to infer that this is not the plan that defines the precincts for the purpose of the proposed table of assessment.
Drawing no. SK-03 is titled “HEIGHT PRECINCT PLAN”. That plan contains several red dotted lines that divide the subject land into distinct areas, including:
(a)an area immediately adjoining Fairlawn Street, located approximately 40 metres from the western boundary and proximate to the bend in Fairlawn Street, that is hatched red and identified in the legend as “FIXED ACCESS ZONE”;
(b)three areas coloured white and marked “ENTRANCE”, “PEDESTRIAN ACCESS” and “FUTURE LINK” respectively;
(c)an area along the Fairlawn Street frontage that is coloured purple and marked “2 STOREY PRECINCT (TOWNHOMES)”;
(d)an area coloured yellow and marked “3 STOREY PRECINCT (APARTMENTS)”;
(e)an area central to the subject land that is coloured green and marked “PARK RECREATION PRECINCT”;
(f)an area towards the south-eastern corner of the subject land that is coloured blue and marked “4 STOREY PRECINCT (APARTMENTS)”;
(g)an area towards the south-western corner of the subject land that is coloured red and marked “4 STOREY PRECINCT (RETIREMENT / APARTMENTS)”;
(h)an area along the southern and eastern boundaries that is cross hatched with red and green and marked “NO BUILD ZONE”; and
(i)an area along the western boundary that is hatched green but not marked by any descriptor.
The descriptions on this plan roughly correlate to those used in the table of assessment. As such, although there is no note confirming that the proposed table of assessment is to be read in conjunction with this drawing, it is reasonable to infer that it should be (particularly given the absence of any other drawing that might assist).
In addition, it is implicit in the variation request that approval is sought to vary s 5.3.1 of City Plan so that the process for determining the level of assessment includes reference to the proposed table.

In those circumstances, I accept the Council’s characterisation of the effect of the variation request.[49] The grant of a preliminary approval and a variation approval would facilitate future development of the land for residential purposes. However, I do not accept Southway Services’ submission that the proposed development would provide a range of accommodation. It might, but it might not. Approval of the variation request would facilitate development for the range of accommodation options relied on by Southway Services. It would equally facilitate redevelopment of the subject land only for multiple dwellings, making no provision for those requiring aged care, those seeking to retire in independent living units within their locality, or students.
[49]See paragraphs [28] to [29] above. I do not regard the description of the proposal as “a preliminary approval to vary the effect of [City Plan]” to be accurate. It conflates what are two separate matters under the Planning Act 2016, namely a preliminary approval that approves development (s 49(2)) as distinct from a variation approval which approves variations. See also Planning Act 2016, ss 63(2)(c) and (g).
The impact of the degree of uncertainty on the assessment of the proposed development and the exercise of the planning discretion is discussed throughout, and particularly at paragraphs [246] to [254] below.
Having regard to the nature of the development application, I do not accept the Council’s assertion, in its reasons for refusal, that approval of the development application would result in loss of industrial land.[50] I also do not accept the Council’s assertion that approval will not preserve opportunities for low impact industry.[51] The grant of a variation approval would not remove the subject land from the Low impact industry zone,[52] nor preclude the continued opportunity to develop in accordance with the planning intent for that zone. That said, I accept that the grant of a preliminary approval and a variation approval would more readily facilitate various forms of residential development on land designated for industrial (and other related or complementary) uses. As such, it would enhance the prospect that the subject land will be given over to a residential use and, in that respect, it is inconsistent with the planning intent for the subject land. This is conceded by Southway Services.[53]
[50]Exhibit 12.02, p 2 [2(a)].
[51]Exhibit 12.02, p 2 [3(b)].
[52]Planning Act 2016 s 43(7).
[53]Exhibit 11.15.
What issues require determination?
On the final day of the hearing, the Council tendered a document titled “Issues for Determination”.[54] The document is seven pages in length. For reasons not explained, the document does not reflect the concessions made by Southway Services in correspondence sent to the Council on 7 September 2021.[55] As such, the Council’s document does not accurately represent the issues that require determination.
[54]Exhibit 12.02.
[55]Exhibit 11.15. The concessions helpfully brought the real issues into focus.
Having regard to Southway Services’ concessions,[56] and the matters identified in paragraphs [50] to [59] above, the real issue in dispute between the parties is whether, in the exercise of the Court’s discretion, it is appropriate to facilitate use of the subject land for accommodation activities.
[56]Exhibit 11.15.
The matters that inform the respective positions of Southway Services and the Council on that issue are conveniently summarised by each of them in the first few pages of their written submissions. The issues raised by them can be distilled into the following seven questions:
1.   Is the development of a range of residential uses on the subject land the antithesis of what City Plan intends?
2.   Are the variations sought consistent with the rest of City Plan?
3.   Does the loss of submission rights for future applications support refusal of the proposed development?
4.   Is there a need for further residential development of the type proposed in this location?
5.   Can the proposed development be provided without any unacceptable impacts?
6.   Is there a need for the land to be retained for Low impact industry uses?
7.   Is it appropriate to exercise the planning discretion to facilitate use of the subject land for accommodation activities?
Is the development of a range of residential uses on the subject land the antithesis of what City Plan intends?
That part of the development application that seeks a material change of use is impact assessable. It is to be assessed against the whole of City Plan, to the extent relevant.[57]
[57]City Plan ss 5.3.1 and 5.3.3, and Table 5.5.15 and Planning Act 2017 s 45(5).
As I have already noted in paragraph [50] above, the development application is almost devoid of detail about the proposed use. Of itself, the absence of a detailed design is not remarkable given what is sought is a preliminary approval only. However, in this case, the significance of the lack of detail is twofold.
First, it is difficult to reliably assess the proposed development against those finer-grained assessment benchmarks that focus on the potential impacts of a development. For example, absent more details about the parameters of the development proposed for the subject land, it is not possible to reliably ascertain the extent of traffic or the car parking demand that might be generated by the proposed development, or to assess the likely impacts of the development against the assessment benchmarks set in City Plan.
Second, as there are no design details, the focus of the assessment against the assessment benchmarks will be on the broader issue of the acceptability, in general terms, of the proposed land uses.
When assessing the acceptability of the proposed land uses, the applicable zone code is a useful starting point. This is because City Plan uses zones to organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.[58]
[58]City Plan s 6.1(1).
Here, the subject land is in the Low impact industry zone. The Low impact industry zone code articulates the planning intent for land in that zone. The purpose of the code is to provide for warehouse, service industry and low-impact industry uses. The code also anticipates use of land in the zone for non-industrial and business uses that support industrial activities, provided they do not compromise the long-term use of the land for industrial purposes.[59]
[59]City Plan s 6.2.5.1(1).
The local government purpose of the code includes implementation of the policy direction set in the strategic framework. There are five themes that set the policy direction.[60] Collectively, they represent the vision for Brisbane. City Plan sets out strategic outcomes across the five themes, which are then supported by more detailed provisions in the balance of City Plan.
[60]City Plan s 3.2.1.
The Low impact industry zone code refers to the policy in:
(a)Theme 1: Brisbane’s globally competitive economy, Element 1.2 – Brisbane’s industrial economy and Element 1.3 – Brisbane’s population-serving economy; and
(b)Theme 5: Brisbane’s CityShape, Element 5.2 – Brisbane’s Major Industry Areas.[61]
[61]City Plan s 6.2.5.1(2)(a).
Theme 1 relates to Brisbane’s globally competitive economy. City Plan intends that Brisbane’s industrial economy is a significant generator of employment and economic growth for the city.[62] Although the industrial economy is intended to be largely contained in the Major Industry Areas,[63] there is also provision for pockets of low-impact industrial services areas appropriately located around the city to effectively service business and residents.[64] The opportunities for low impact industry throughout the city are to be preserved to support a strong population and economic growth.[65] The specified land use strategy to achieve that outcome is:
“Industrial premises in the Low impact industry zone or General industry A zone precinct of the Industry zone are protected from encroachment and incompatible uses”.[66]
[62]City Plan s 3.3.1(1)(g).
[63]City Plan s 3.3.1(1)(g).
[64]City Plan s 3.3.1(1)(m).
[65]City Plan s 3.3.4 Element 1.3, Table 3.3.4.1, specific outcome SO7.
[66]City Plan s 3.3.4 Element 1.3, Table 3.3.4.1, land use strategy L7.
Theme 5 relates to Brisbane’s “CityShape”. As is noted in paragraph [71](b) above, Element 5.2 relates to Brisbane’s Major Industry Areas. It contains policy of note for land in the Low impact industry zone. However, it is of little relevance in this case as the subject land is mapped as part of the Suburban Living Areas and not as part of the Major Industry Areas.
The local government purpose of the Low impact industry zone code is also to facilitate and maintain the long-term viability of industrial uses by excluding incompatible development and encouraging a broad range of industry that is compatible with adjacent residential areas.[67]
[67]City Plan s 6.2.5.1(2)(b).
The purpose of the code is sought to be achieved through the overall outcomes.
Overall outcomes (3)(a) and (b) of the Low impact industry zone code reinforce the planning intention to ensure land in the zone is used for industrial purposes. They encourage development of land throughout the Low impact industry zone for low impact industry uses, service industry uses and warehouses.[68] Medium impact industry uses are also encouraged, provided they are located at an appropriate distance from sensitive uses, and provided they avoid or minimise noise and air emissions to meet noise and air quality criteria at sensitive zones.[69]
[68]City Plan s 6.2.5.1(3)(a).
[69]City Plan s 6.2.5.1(3)(b).
In addition to encouraging industrial uses, the overall outcomes contemplate use of the land in the Low impact industry zone for a use that is ancillary to an industrial use on the same site, such as an office function, or small-scale shop or food and drink outlet that directly supports the industry and workers.[70] Development for a stand-alone office is expressly discouraged.[71]
[70]City Plan s 6.2.5.1(3)(f).
[71]City Plan s 6.2.5.1(3)(e).
Other overall outcomes focus on the intention to facilitate and maintain the long-term viability of industrial uses. As is suggested by the purpose statement, two planning strategies are employed towards that end. The first focuses on excluding incompatible uses.[72] The second strategy seeks to ensure issues associated with the interface between industry and adjacent residential areas (or other non-industrial land) are appropriately addressed. With respect to the latter strategy, the overall outcomes require separation for sensitive uses to minimise the likelihood of environmental harm or environmental nuisance;[73] and require development to be located, designed, and managed to minimise impacts and contribute to a high standard of amenity.[74]
[72]City Plan s 6.2.5.1(3)(d).
[73]City Plan s 6.2.5.1(3)(c).
[74]City Plan ss 6.2.5.1(3)(g) and (h).
Consistent with the intent of the zone, under the Table of assessment for the Low impact industry zone, a development application for Low impact industry, Medium impact industry, Research and technology industry and Service industry is either self assessable or code assessable.
Development for residential uses is neither expressly encouraged nor expressly discouraged in the Low impact industry zone code. Nevertheless, Southway Services acknowledges that approval of its development application would facilitate various forms of residential development on land that is designated for industrial and other related or complementary uses. Southway Services accepts that, in those circumstances, approval of the development application would not ensure the preservation of opportunities for low impact industry uses.[75] It accepts that this is contrary to the evident planning intention to facilitate, and maintain the long-term viability of, industrial uses on land in the Low impact industry zone. Southway Services concedes that it is also contrary to the planning goal in specific outcome SO7 in element 1.3 of the strategic framework.[76]
[75]This is the tenor of the concession. Although the concession was that approval of the development application “does not preserve opportunities for low impact industry”, to simply adopt that concession ignores that the proposed variations do not remove the continued opportunity to develop in a manner that accords with the subject land’s inclusion in the Low impact industry zone, however unlikely that might be if there is also an opportunity to instead develop the land for (potentially more lucrative) residential uses.
[76]See paragraph [72] above.

For the reasons provided above, I am satisfied that the proposed use of the subject land for accommodation activities is contrary to key provisions of City Plan that indicate the planning intent for the land.
Are the variations sought consistent with the rest of City Plan?
Pursuant to s 61(2)(b) of the Planning Act 2016, it is necessary to consider the consistency of the proposed variations with the rest of City Plan.

The variations sought are those identified in paragraph [49] above. They involve additions to the applicable table of assessment in City Plan such that, in the circumstances identified in the proposed table of assessment, use of the subject land for accommodation activities will be self-assessable or code assessable.
The codes proposed as the assessment criteria for the various self-assessable and code-assessable uses are consistent with those that apply for similar uses in City Plan. They include codes such as the Low-medium density residential zone code or the Medium density residential zone code. The proposed variations do not include deletions or amendments to the contents of any of the codes.
The Council contends that the variations sought are entirely inconsistent with the rest of City Plan in two fundamental respects.
First, the Council says a fundamental inconsistency arises with the intention of the strategic framework to preserve industry zoned land, including Low impact industry zoned land. I agree for the reasons provided in paragraphs [64] to [81] above. The extent of inconsistency is unsurprising given the development application includes the variation request. The inconsistency is, no doubt, material to Southway Services’ desire to vary the effect of City Plan.
The second fundamental inconsistency asserted by the Council relates to the built form and density of the proposed residential uses. The Council submits that the variation request purports to treat the subject land as though it was in the Low-medium density residential zone. It says that, in truth, the variation request seeks to facilitate uses that would comprise medium density residential development by only requiring a code assessable development application for such uses.
I accept the Council’s submission in part.
There is a lack of attention to detail in Southway Services’ drafting of the proposed variations. For example, no variations are proposed to the content of the Multiple dwelling code to ensure that the outcomes of that code, as they apply to the proposed development, are construed as though the subject land was in zones and precincts under City Plan where the planned height is consistent with that sought in the preliminary approval. Nevertheless, read fairly, the assessment criteria listed in the proposed table of assessment indicates that the identified uses are to be assessed as though:
(a)the “2 Storey Townhomes and Detached Houses Precinct” was located in the 2 storey mix zone precinct of the Low-medium density residential zone;
(b)the “3 Storey Apartment Precinct” was located in the up to 3 storeys zone precinct of the Low-medium density residential zone; and
(c)the “4 Storey Retirement Precinct’ and the “4 Storey Apartment Precinct” was in the Medium density residential zone.
Further, the proposed development would facilitate residential development that is more intense, and that has a larger built form, than the existing low-density residential development of the local area. The proposed development would facilitate up to 750 dwellings on a 6.891-hectare site. This equates to a density of about 108 dwellings per hectare. Dr McGowan describes the proposed development as representing a development outcome for the subject land that is more accurately described as medium density rather than low density.[77] I accept Dr McGowan’s evidence.
[77]Exhibit 4.03 p 13 [26].
When considering the consistency of the proposed variations with the rest of City Plan, it is appropriate to consider those provisions of City Plan that guide the forms of residential growth anticipated and the intended location of those types of residential uses.
What forms of residential growth does City Plan anticipate?
City Plan intends to deliver an outstanding lifestyle city by requiring, amongst other things, the provision of a diverse range of housing forms to meet the needs of the growing population, and catering to people at all stages of their lives.[78] Residential development is to contribute to housing diversity, particularly supporting “ageing in place”.[79]
[78]City Plan ss 3.2.1 and 3.4.1(1)(f).
[79]City Plan ss 3.4.1(1)(g), 3.4.3 Element 2.2, Table 3.4.3.1, specific outcome SO2 and land use strategy L2, 3.7.1(1)(g)(v), 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO3 and land use strategy L3.
This planning strategy is supplemented, in more recent versions of City Plan, with an intention to also seek housing options that allow “ageing in neighbourhood”.[80] I accept that the current version of City Plan is relevant under s 45(5)(b) of the Planning Act 2016 as it represents the Council’s most contemporary statement of planning intent.[81] I am satisfied that, in this case, it is appropriate that I give some weight to these provisions.
[80]City Plan version 21 ss 3.4.3 Element 2.2, Table 3.4.3.1, specific outcome SO2 and land use strategy L2, 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO3 and land use strategy L3.1, 9.3.18.2 2.
[81]HPC Urban Design and Planning Pty Ltd & Anor v Ipswich City Council & Anor [2019] QPEC 56; [2020] QPELR 534, 572-3 [225]-[226].
Through the planning policies referred to in paragraph [92] above, version 6 of City Plan[82] identifies a need for the types of uses proposed. The current version of City Plan confirms that the need is ongoing in the Brisbane City local government area, and it extends to providing housing options that allow ageing in neighbourhood. City Plan[83] also provides guidance about how the need is to be met.
[82]This is the version that applied at the time the development application was made.
[83]Version 6 and version 21.
Brisbane’s housing choices are to be integrated within the communities and neighbourhoods of the city in a form appropriate to the locality. The housing choices are to be consistent with the outcomes for the relevant “Growth Nodes on Selected Transport Corridors” or “Suburban Living Areas”.[84] These areas are spatially represented on the strategic framework maps.[85] Map SFM-002 (Brisbane CityShape 2031 Land Use Strategic Framework Map) shows, amongst other things, the location of intended “Growth Nodes”, “Selected Transport Corridors” and the areas that comprise “Suburban Living Areas”.
[84]City Plan ss 3.4.1(1)(i) and 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO2 and land use strategy L2. See also City Plan s 3.7.9 Element 5.8, Table 3.7.9.1 specific outcome SO1 and land use strategy L1.1 and the descriptions of the corridors at Ex 8.01 pp 112-8.
[85]City Plan s 3.7.1(1)(a).
In Brisbane’s Suburban Living Areas, most development is intended to be housing in the form of detached dwellings ranging from small cottages to large family homes on lots typically in the range of 400 to 800 square metres.[86] That said, Brisbane’s Suburban Living Areas also comprise areas for centres, community facilities, medium and high density residential and industrial uses, as indicated in neighbourhood plans and the zoning pattern in City Plan. Growth in those other uses is to be in response to local context and needs. The zoning pattern shows the development intent that is consistent with local values, constraints, and opportunities in the Suburban Living Areas.[87]
[86]City Plan ss 3.7.1(1)(g) and 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO2 and land use strategies L2.1 and L2.2.
[87]City Plan ss 3.7.1(1)(g) and 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO1 and land use strategy L1.
Intergenerational housing options to facilitate ageing in place are contemplated in Suburban Living Areas. They are intended to comprise areas of small-scale, low-medium density housing, such as dual occupancy or row housing.[88] Infill development is intended to be limited to instances where the resulting lot size reflects that which predominates in the neighbourhood.[89] The siting, scale and lot coverage of new housing is to be consistent with the existing neighbourhood character of well-spaced houses and vegetated backyards.[90]
[88]City Plan ss 3.7.1(1)(g) and 3.7.6 Element 5.5, Table 3.7.6.1, specific outcome SO3 and land use strategy L3.
[89]City Plan s 3.7.6 Element 5.5, Table 3.7.6.1, land use strategy L4.1.
[90]City Plan s 3.7.6 Element 5.5, Table 3.7.6.1, land use strategy L4.2.
Where does City Plan intend to accommodate residential uses of the type and density proposed?
The strategic framework sets the policy intent of City Plan and forms the basis for ensuring that appropriate development occurs in the planning scheme area for the life of the planning scheme.[91] It has a planning horizon of 2031.[92] As such, the strategic framework assists in ascertaining the locational attributes that inform where City Plan intends to accommodate residential uses such as those proposed by Southway Services.
[91]City Plan s 3.1(1).
[92]City Plan s 3.2.1.
City Plan recognises the requirement to meet the South East Queensland Regional Plan target of an additional 156,000 dwellings, with 138,000 dwellings as infill development.[93] The growth capacity of Brisbane has been incrementally increased through the Council’s neighbourhood planning process to ensure that new development opportunities along selected transport corridors are progressively facilitated, supported by the appropriate provision of services, facilities, and infrastructure.[94]
[93]City Plan s 3.2.1.
[94]City Plan s 3.2.1.
Growth is planned to occur in an efficient and timely manner by developing in accordance with Brisbane’s “CityShape”. CityShape is built upon a series of nodes and corridors radiating from the City Centre. It is intended to provide for an efficient urban form. It contains large-scale urban change to less than seven per cent of the Brisbane local government area.[95]
[95]City Plan s 3.2.1.
As I have mentioned in paragraph [95] above, Brisbane’s planned urban form and structure is spatially represented on the strategic framework maps.[96] Map SFM-002 (Brisbane CityShape 2031 Land Use Strategic Framework Map) shows the spatial distribution of the areas that inform CityShape. Amongst other things, it shows the location of intended “Growth Nodes” and the “Selected Transport Corridors”. It also depicts areas that comprise “Suburban Living Areas”. Map SFM-003 (Brisbane Selected Transport Corridors and Growth Nodes Strategic Framework Map) provides finer-grained detail about the Selected Transport Corridors and Growth Nodes. It identifies nine Selected Transport Corridors where growth is intended. It also identifies a series of planned and future Growth Nodes, which are located along each of the Selected Transport Corridors.
[96]City Plan s 3.7.1(1)(a).
Major new housing opportunities are to be provided within the existing urban area and form of the city by infill and other types of redevelopment.[97] Brisbane’s dwelling needs for future populations are planned to be met by matching growth to the existing and planned infrastructure in the city.[98]
[97]City Plan s 3.4.1(1)(h).
[98]City Plan s 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO1.
Much of the new growth planned for Brisbane is founded on the principles of transit-oriented development and is leveraged off public transport. It also relies heavily on active travel, such as walking and cycling.
The most significant additional residential growth is planned to predominantly occur within Growth Nodes on Selected Transport Corridors.[99] This serves two evident planning purposes.
[99]City Plan s 3.2.1. This strategic intent is supported by the strategic outcomes, specific outcomes, and land use strategies for Theme 2: Brisbane’s outstanding lifestyle.
First, providing increased densities within Growth Nodes on Selected Transport Corridors matches growth to the existing and planned infrastructure in the city.[100] This is a key strategy that informs the location of higher density residential development.[101] It is supported by other provisions in the strategic framework[102] and in the zone codes in City Plan.[103]
[100]City Plan s 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO1 and land use strategy L1.
[101]The importance of the strategy is evident from reading City Plan as a whole, including provisions of the strategic framework that relate to the CityShape theme. See, for example, City Plan ss 3.7.1(1)(b)(iii) and (iv), (k), (l), and 3.7.9 Element 5.8, Table 3.7.9.1 specific outcome SO1 and land use strategy L1.1 and the descriptions of the corridors at Ex 8.01 pp 112-8.
[102]City Plan s 3.7.9 Element 5.8, Table 3.7.9.1, specific outcome SO1 and land use strategy L1.1 and the descriptions of the corridors at Ex 8.01 pp 112-8.
[103]See, for example, City Plan ss 6.2.1.2(4)(b), (c), (f)(iii), (g), (7)(a), (8)(a), 6.2.1.3(4)(a), (b), and (c).
Second, concentrating growth in identified Growth Nodes along Selected Transport Corridors is intended to ensure access to employment, services and infrastructure whilst maintaining the leafy suburban character of Brisbane’s Suburban Living Areas.[104] Most of the established residential suburbs in Brisbane are mapped as part of Brisbane’s Suburban Living Areas.[105]
[104]City Plan s 3.7.1(1)(k).
[105]City Plan s 3.7.1(1)(g).
Many of the areas mapped as Suburban Living Areas, such as the subject land, are planned to experience minimal change throughout the life of City Plan as most of the residential growth is planned to occur within Growth Nodes on Selected Transport Corridors.[106] To the extent there is planned residential growth outside the Growth Nodes, it is intended to be relevant to the local context of the building and landscape character of the Suburban Living Area.[107] Impacts on local amenity and values are to be carefully considered.[108]
[106]City Plan ss 3.2.1 and 3.7.1(1)(g).
[107]This strategic intent is supported by the strategic outcomes, specific outcomes, and land use strategies for Theme 2: Brisbane’s outstanding lifestyle.
[108]City Plan s 3.7.1(1)(g).
In addition to the general strategy to locate higher density residential uses within Growth Nodes on Selected Transport Corridors, City Plan intends that a variety of accommodation and housing will be provided near the city’s major institutions and other Special Centres.[109] For that purpose, City Plan identifies land to be used to accommodate a range of housing types that is suitable to tertiary and international students, such as rooming accommodation, and to staff and visitors to major special purpose centres. This land is at appropriate locations, being locations that are proximate to education campuses or along high-frequency public transport routes, and which have good access to urban services.[110] For example, Griffith University’s Nathan Campus is identified as a Special Centre on the strategic framework map. Land in that area is zoned in the SC1 Major education and research facility precinct of the Specialised centre zone.[111] The impact of Griffith University being a Special Centre is discussed at paragraph [115] below.
[109]City Plan s 3.4.3 Element 2, Table 3.4.3.1, specific outcome SO6.
[110]City Plan s 3.4.3 Element 2, Table 3.4.3.1, land use strategy L6.1.
[111]Ex 8.01 pp 396 and 398.
Rooming accommodation for students is to be in Growth Nodes on Selected Transport Corridors or in other geographically nominated locations, such as in Special Centres, where the surrounding amenity is maintained and there is good access to higher education campuses by way of public or active transport.[112]
Are the proposed variations consistent with the City Plan provisions regarding the location of the type of uses proposed and the forms of residential development?
[112]City Plan s 3.4.3 Element 2, Table 3.4.3.1, land use strategy L6.2.
The variations proposed by Southway Services include a range of housing forms that cater to people at all stages of their lives. In that respect, it is consistent with numerous provisions of City Plan (including those in version 22) that recognise that the provision of a diverse range of housing opportunities is important to achieving Brisbane’s outstanding lifestyle goal. However, the planning policy with respect to housing opportunities must be read in the context of City Plan as a whole, which provides guidance about the appropriate location of such opportunities.
The proposed variations are not consistent with the planning policy in City Plan regarding the appropriate location for residential uses of the density that are proposed. There are four observations I wish to make in that regard. Each tells against approval of the variation request.
First, the subject land is not located along either of the Selected Transport Corridors or at any of the identified Growth Nodes. Rather, the subject land is mapped as part of the Suburban Living Area. As the town planners observe in their joint expert report, the subject land sits between Corridor D – Brisbane South Rail transport corridor and Corridor A – Logan Road transport corridor but is not located within either corridor. It is 2.5 kilometres as the crow flies from the nearest point of Corridor D and 3.5 kilometres from the nearest point of Corridor A. The identified Growth Nodes are even further away.
Second, the overall outcome in s 6.2.1.3(4)(b) of the Medium density residential zone code enocurage medium rise and medium density residential development on suitable sites in well-located parts of the city, including “the inner city and in close proximity to significant centres or along growth corridors or on the periphery of centres”. However, when City Plan is read as a whole, the final reference is not properly construed as including neighbourhood centres. Neighbourhood centres are the lowest order of centre and are intended to be interspersed in low density residential neighbourhoods.[113]
[113]See City Plan s 3.7.6 Element 5.5, Table 3.7.6.1, land use strategies L6.1 and L6.2, and ss 6.2.1.3(2)(b), 6.2.2.4(2)(d), (4)(e), (5)(a), (b), and (c). See also the Submissions on behalf of the Respondent, [87].
The subject land is not located within easy walking distance of a public transport node. Further, although it is located near a neighbourhood centre, it is not located in close proximity to, or on the periphery of, a significant centre or a key destination.[114]
[114]City Plan ss 6.2.1.2(4)(b), (c), (f)(iii), (g), (7)(a), (8)(a), 6.2.1.3(4)(a), (b), and (c).
Further, I do not regard the subject land to be in close proximity to the Special Centre that is Griffith University’s Nathan Campus. Although the subject land adjoins the land on which Griffith University’s Nathan Campus is located, the facilities associated with the University are located some distance from the subject land. The shortest route to the University facilities is approximately 1.5 to 2 kilometres walk through the forest. The route traverses an unlit, unsealed bush track, parts of which are steep. The walk from any of the trail heads to the University ring road, of itself, would require about half an hour.[115] It is evident from aerial photography that there is then a reasonable traverse from the ring road to any of the buildings on the campus.[116] The alternative path is approximately three kilometres along the major road network. It also involves a long uphill stretch to the campus facilities. Neither of these routes involves an easy walk.
[115]Exhibit 3.07 p 8 [23]; Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 61-2.
[116]Exhibit 7.1.
Third, having regard to the context within which the subject land sits, it does not provide a sensitive transition to low density residential areas[117] or provide a transition area between higher and lower rise/lower density zones. As such, the subject land does not fulfil the intended role of land in the Up to 3 storeys zone precinct of the Low-medium density residential zone or the Medium density residential zone.
[117]City Plan s 6.2.1.2(8)(e).

With respect to the matters referred to in subparagraphs [225](c)(i), (ii), (iii), I accept that, if approved and constructed and operated in the manner anticipated by the experts retained by Southway Services, the proposed development will result in:
(a)the cessation of existing industrial uses and light industrial uses adjacent to residential areas;
(b)the provision of housing choice in an accessible location; and
(c)the community having choice to age in place in this neighbourhood.
However, I am not persuaded that approval of the proposed development will result in a proposed development that is constructed and operated in the manner contended by Southway Services and assumed by the experts it retained.[233] Further, for the reasons that I will explain below, I am not persuaded that the overall public interest is best served by the development of the subject land in the manner proposed.
[233]See paragraphs [22] to [59] and [187] to [198] above and paragraphs [243], [250] and [251] below.
With respect to subparagraph [225](d)(i), I accept that approval of the proposed development will facilitate development options that might improve choice in the manner contended by Southway Services.[234] Although I accept much of the evidence of Ms Wells, it does not follow that the possibility of improved choice of the type referred to in subparagraph [225](d)(i) is determinative in this case. Need is a relative concept that will be given greater or lesser weight depending on the circumstances of the case.[235] The weight to be attributed to it in the exercise of discretion is influenced by other matters established by the evidence to which I will now turn.
[234]I am not satisfied that such an outcome is likely.
[235]Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20]; Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [24].
Having regard to the evidence of Ms Wells about the residential care facility catchment area, the predicted population of that area and the current residential care facilities within the residential care facility catchment area, I am satisfied that there is a latent unsatisfied demand for residential care facilities. This is reinforced by Ms Wells’ evidence about the quality of the residential care facilities in the residential care facility catchment area and the retirement facility catchment area.
The evidence also demonstrates that, absent further development, there is residential population in the retirement facility catchment area of sufficient size to support further retirement facilities by 2030, and even by 2025. This is established by a combination of the evidence about the trade area, the population of the trade area, and the current facilities in the trade area (including that available at Seasons Living), and Mr Duane’s evidence about appropriate penetrations rates (which I prefer to that of Mr Brown).
As is apparent from subparagraph [225](d)(i), the case advanced by Southway Services is not limited to evidence that there is a demand for the residential care and retirement facilities that is not presently met. Southway Services also relies on several qualitative matters that is says are indicative of a need for the proposed residential care and retirement facilities.
I have already addressed the qualitative matters relevant to residential care facilities in paragraphs [143] to [155] above. In relation to retirement facilities, having provided the quantitative analysis, Ms Wells states:
“More importantly, a review of the existing and proposed retirement villages, (sic) identifies limited access to modern retirement village accommodation that enables ageing in place in circumstances where, just as with aged care facilities, the community need for retirement village facilities needs to be considered in terms of quality and characteristics, not just raw numbers …”.[236]
[236]Exhibit 4.01 p 13 [51].
Ms Wells identifies that there are 10 retirement villages operating 891 dwellings in the retirement facility catchment area. She provides details in relation to each of them and provides them with a competitive ranking.
Ms Wells ranks about half of the available stock as “low”. This is reflective of her opinion that those sites:
(a)are tired and more traditional in appearance;
(b)offer smaller scale, multifunctional, older and tired communal spaces;
(c)offer broad acre sites not designed for ageing, with some resulting in social isolation due to the mobility hurdles they present to residents;
(d)offer homes that are primarily single level (or two levels with steps) with limited choice in accommodation. The majority offer only studio, 1- or 2-bedroom homes with a mix of attached and detached car spaces, carports and garages;
(e)were not designed for ageing, resulting in limited scope to age in place (as is the current community expectation) and necessitating a move to residential aged care for those with higher needs;
(f)are not offered as mixed-use communities and therefore provide limited access to intergenerational activity on a day to day basis; and
(g)do not meet the needs (and for many the expectations) of the current and future retirement village consumer in that they do not enable ageing in place to higher levels in line with the outcomes of the Royal Commission into Aged Care Quality and Safety.[237]
[237]Exhibit 4.01 pp 13-4 [52(a)].
Ms Wells says the other half have been developed as modern village stock offering:
(a)modern apartments with a choice of primarily 2 or 3 bedrooms;
(b)modern communal spaces for the desired level of social activity; and
(c)a design that accommodates ageing in place and more efficient delivery of ageing services.[238]
[238]Exhibit 4.01 pp 13-4 [52(b)].
Ms Wells concludes that a review of the existing and proposed retirement villages identifies limited access to modern retirement living sites that would enable residents to age in place to high levels. She also opines that there is limited access to sites designed as a “home for life” with a choice in how and where you may age and receive care. There are no older or modern sites offering a full care continuum with choice of accommodation type and service delivery, i.e. independent living with care services; assisted living as a complete accommodation, care and financial package; and frail aged care through either funded residential aged care or private aged care. There is no existing or proposed modern alternatives such as strata title retirement communities or modern lease villages as an alternative to retirement villages. There is no access to retirement living sites as part of a modern, mixed use community offering intergenerational activity. Ms Wells opines that without an increase in modern supply, the retirement facility catchment area will not have the appropriate housing choices to meet the “future of ageing” identified by the Royal Commission and rapidly changing consumer expectations.[239]
[239]Exhibit 4.01 p 14 [52(c)].
Mr Brown cavils with Ms Wells’ assessment of the qualitative considerations. He says that her opinions are predominantly founded on the age of the offer. He does not consider the age of facilities to be indicative of their benefit because operators make ongoing capital investments and refurbishments to improve the quality of dwellings.[240] Further, during cross-examination, Mr Brown indicated that he was unconcerned by the fact that about 50 per cent of the facilities available were of a form that was not likely to be satisfactory to the families and the aged people who require them.[241]
[240]Exhibit 3.04 p 88 [231].
[241]Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 81.
I disagree with Mr Brown’s characterisation of Ms Wells’ evidence about the quality of the facilities. As I understood her evidence, Ms Wells’ analysis of the quality of the current offer was focussed on whether the retirement facilities offer a design that accommodates ageing in place and more efficient delivery of ageing services, and whether the offer accords with the outcomes from the Royal Commission.[242]
[242]This is further explained in her Second Individual Statement of Evidence, Exhibit 4.06.
I accept that, if approved, constructed, and operated as anticipated by Ms Wells, the proposed development will provide increased choice. Of itself, this finding does not demonstrate a need for the proposed development. However, in combination with the findings made above, I am satisfied that an approval, coupled with construction and operation in the manner anticipated by Ms Wells, would improve the services and facilities available in the local area. It will benefit the community by improving the comfort and efficient lifestyle of the community.
As such, the need for further retirement facilities is supported by the evidence of Ms Wells about the quality of offer referred to in paragraphs [236] to [238] above.
In relation to the proposed development, Ms Wells opines that the subject land can, and should, deliver modern retirement and aged care accommodation integrated with lifestyle, social, support and care services or programs. She says it should also offer a mix of important housing choices that enable desirable and efficient ageing in place for retirees, senior and frail aged persons. It should provide an increased level of care and support in the residents chosen environment through:
(a)a range of well sized individual accommodation designed for persons to age in place across independent living, assisted living and frail aged care accommodation;
(b)indoor and outdoor communal areas that enable the desired activity, social spaces, wellbeing, and health activities; and
(c)an option for the “last move” for prospective residents. This would be achieved through scalable structure activities, programs and technology inclusions to enable seniors to maintain independence, access support and care (including specialised care such as dementia or palliative care), access restorative and maintenance services, and age in place.
As such, Ms Wells says that there is a clear social and community need for the proposed development on the subject land. She says that refusing the proposed development will severely restrict choice, limit quality and desirable ageing in place options, restrict access to non-institutional environments and result in the loss of older Australians from the catchment area as they would need to relocate to access modern alternatives.
The Council identifies five matters that it relies on as important context when considering the evidence of Ms Wells and the need for the proposed residential aged care and retirement facilities. First, there is no certainty that approval of the proposed development will result in the provision of 96 units in a residential aged care facility and the 254 independent living units in a retirement facility. According to the level of assessment table, those uses are only possible options in the “4 Storey Precinct (Retirement/Apartments)”. Second, even if the resultant approval ensured that the uses were not optional, there is no compulsion to deliver both residential aged care and retirement facility uses. Third, Southway Services seeks a preliminary approval with a life of ten years, so there may be a considerable delay before the uses are delivered. Fourth, the nature of the application is such that, even if the uses are delivered, at some future time, their make-up, market positioning, layout, facilities, and level of care are entirely unknown. Fifth, although the area of the precinct to be allocated to residential aged care and retirement facilities has not been identified, having regard to the precincts, it appears to represent less than 20 per cent of the total site area, or in the order of 1.3 hectares. As such, any need for residential aged care and retirement facilities on one part of the subject land should not be used to justify the balance of the residential development sought.[243]
[243]Submissions on behalf of the Respondent p 45 [164]-[165].
With any development, there is a degree of uncertainty about the final product that will be delivered. As was noted by His Honour Judge Robin in Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors,[244] full detailed design for a development is often left for later, once the Court has decided that a proposal should proceed. Similar observations were made by His Honour Senior Judge Skoien with respect to a rezoning application in Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor.[245] His Honour observed:
“On an application for a rezoning it would obviously be unreasonable in most cases to require an applicant to supply detailed plans and specifications for the development which is to be constructed if the application should be successful. That would often involve great expense which would be wasted if the application were refused. All that the applicant need do is supply conceptual plans which indicate with reasonable accuracy the proposed development together with evidence that it can be developed in accordance with accepted principles of planning and engineering procedures. If the application should be successful conditions can properly be imposed requiring that technical and engineering works be carried out to the satisfaction of the Council’s proper officer. If the matter is sufficiently sensitive that satisfaction may be required before approval to rezone is given.”
[244][2010] QPEC 51; [2010] QPELR 750, 775 [75].
[245][1996] QPELR 249.
Further, the grant of any approval does not guarantee delivery of the subject development. There are many reasons that an approved development may not proceed, including changes in market conditions or changes in intention coincident with a change in ownership of the land.
It does not necessarily follow that an applicant for a development approval will never be required to descend into matters of detail before being granted an approval.[246] Whether the degree of uncertainty attending a development tells against approval is a question of fact and degree that turns on matters of impression.
[246]Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; [2009] QPELR 435, 453 [131].
Here, the issue is whether the uncertainty is such as to detract from Ms Wells’ evidence about the benefit to the community that would result from approval of the development. Further consideration of the evidence of Ms Wells is informative in this regard.
Ms Wells describes the proposed development about which she provides her evidence in paragraphs 13 to 19 of her first statement of evidence.[247] She says it is likely that the mix of accommodation will include:
(a)around 96 dwellings for more frail older Australians who require a complete accommodation and care solution for high care needs, which may be delivered as Commonwealth residential aged care or private aged care, or a mix of both; and
(b)around 254 dwellings as a retirement village for older Australians (likely to be around 75 years or over upon entry) seeking “a home for life” with appropriate accommodation, support, and care to remain independent, together with access to medical and allied support as needs change from basic support to high level care. This may also include some dedicated assisting living (complete accommodation, care, and financial package) for moderate care needs.
[247]Exhibit 4.01 pp 4-5.
Further, Ms Wells says, “the development will offer a larger retirement and aged care community”.[248] She goes on to describe the benefits that will follow from a large scale retirement village. It is apparent from her evidence in that respect that she has assumed that the retirement facility will incorporate at least 100 units. Ms Wells also says the subject land will offer a significant intergenerational opportunity through general residential housing and student accommodation.
[248]My emphasis.
It is clear from Ms Wells’ evidence that she appreciates that there is no final design, and that there may be some changes to the ultimate composition of the residential aged care and retirement facilities components of the proposed development. Ms Wells opines that this is a benefit, rather than a disbenefit, because it will allow the development to address the requirements of the catchment area population and new trends with respect to the physical, emotional, and social well-being of the ageing population.
The assumptions made by Ms Wells reflect an option that might be achieved in the event of approval. As such, her evidence is relevant. The benefits identified by Ms Wells are of significant force. I am satisfied that Ms Wells’ evidence lends weight to an approval. However, I do not share Ms Wells’ confidence that an approval will deliver modern retirement and aged care accommodation in the form referred to in paragraph [241] above, or that it will offer significant intergenerational opportunity.
There are four matters that cause me significant doubt about the extent to which an approval will deliver the development anticipated by Ms Wells and the associated benefits to the community. The first is Southway Services’ steadfast refusal to provide further detail throughout the application process, and its representation during the application process that “[a]ny use ultimately approved within this ‘preliminary approval’ does not mean that all will be applied for or constructed onsite”.[249] Second, during the hearing, Southway Services’ confirmed that it does not seek approval for a minimum number of dwellings with respect to the identified uses.[250] Third, the evidence of the economists about student accommodation does not support Ms Wells’ assumption that the proposed development will offer significant intergenerational opportunity.[251] Fourth, the approval is sought for a period of ten years. During cross-examination Ms Well accepted that, during the life of the approval, the latent unsatisfied demand identified by her may be met by other developments.[252] This could diminish the benefit associated with the approval. Accordingly, the weight I am prepared to give Ms Wells’ evidence as supportive of an approval is tempered by the lack of certainty about the ultimate mix of uses, its form, and the timeframe over which any development under the approval is sought to be delivered.
[249]See paragraphs [32] to [48] above.
[250]Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 2-4.
[251]See paragraph [166] above. The benefit of intergenerational interaction between students and older Australians was a matter that Ms Wells placed considerable emphasis on in her oral testimony.
[252]Transcript of Proceedings, Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors (Planning and Environment Court of Queensland, 993 of 2019, Kefford DCJ, 7 September 2021) 22-4.
For present purposes, I accept the contention in subparagraph [225](g). Although Southway Services did not direct my attention to evidence that demonstrates that the proposed development will create employment opportunities during the construction phase and during the lifetime of the development, it is a matter that I am prepared to infer. As such, this is a matter that supports approval. However, it is of limited weight as it has not been established that the employment opportunities are equal, or superior, to those which would be achieved by development as anticipated by City Plan.

With respect to subparagraph [225](h), I accept that the land is not identified as a Strategic Inner-City Industrial Area within the strategic framework of City Plan; and that the industrial area to the west of Toohey Road is available to address the local need for low and medium impact industries. To the extent the proposed development would facilitate low-medium density residential development, it is consistent with the inclusion of the land in the Suburban Living Area under Brisbane CityShape 2031. These matters support approval.
That said, the weight that I attribute to these matters is diminished because the inclusion of the land in the Suburban Living Area under Brisbane CityShape 2031 is also consistent with the need to preserve it for the types of uses encouraged in the Low impact industry zone. As is recorded in s 3.7.1(1)(g)(ii) of City Plan, Brisbane’s Suburban Living Areas are intended to include industrial uses as indicated in the zoning pattern. The assessment benchmarks in the Low impact industry zone code and the Industry code facilitate the location of such uses in residential areas in a manner that ensures appropriate outcomes.[253]
[253]See, for example, City Plan ss 6.2.5.1(3)(c), (g), (h), and City Plan (version 22) ss 9.3.12.2 2.a, d and e.
On balance, for the reasons explained above, the relevant matters established by Southway Services fall well short of persuading me that an approval should follow.

Conclusion

The need to provide a diversity of housing, including housing that permits ageing in place, is an important planning issue. It is recognised in City Plan. The Council’s recent planning indicates that housing that permits ageing in neighbourhood is also an important planning issue.
Here, the proposed development attempts to address those planning issues. However, for reasons given above, Southway Services has failed to establish that these important planning goals will be advanced in a meaningful way by the grant of a preliminary approval and a variation approval. To the contrary, after considering all the evidence and Southway Services’ submissions, I am left with the impression that a key driver for the development application and variation request is the maintenance of flexibility in the ultimate development outcome to be achieved on the subject land. The application seeks such flexibility that it lacks certainty about the mix of uses and the form of development that might ultimately occur on the subject land. Consequently, I have little confidence that the grant of a preliminary approval and a variation approval would deliver many of the benefits to which Southway Services refers.
Further, City Plan has already struck the balance between meeting the need for development of the kind proposed (and advancing the goals associated with housing diversity) and providing opportunity for development that will contribute to Brisbane’s industrial economy. City Plan makes provision for the need in question to be met in the various residential zones. A sound town planning reason would be required to approve an application that results in a development outcome that seeks to restrike this balance in a materially different way.
Southway Services has failed to persuade me that, in the circumstances of this case, the balance struck between the goals associated with Brisbane’s outstanding lifestyle and the provision of housing diversity and the goals associated with prosperity of Brisbane’s industrial economy and the preservation of industrial land should be adjusted by granting the variation approval.
The need for further residential development, and the prospect of improved choice in retirement housing options, even if coupled with the potential for an absence of amenity impacts, does not provide a sound town planning basis to approve the proposed development or to grant a variation approval.
Southway Services has not discharged the onus. The appeal should be dismissed.

CITATION:	Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors [2022] QPEC 8
PARTIES:	SOUTHWAY SERVICES NO. 2 PTY LTD (ACN 153 362 460) (Appellant) v BRISBANE CITY COUNCIL (Respondent) AND DENNIS CHEAL (First Co-respondent by Election) AND ELLEN CHEAL (Second Co-respondent by Election) AND NETTA E MORRIS (Seventh Co-respondent by Election) AND ROBERT W MORRIS (Eighth Co-respondent by Election) AND ANNAMARIE NEWTON (Ninth Co-respondent by Election) AND LORIS SUTER (Twelfth Co-respondent by Election)
FILE NO/S:	993 of 2019
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	15 March 2022
DELIVERED AT:	Ipswich
HEARING DATE:	6, 7, 9 and 15 September 2021
JUDGE:	Kefford DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST REFUSAL OF A DEVELOPMENT APPLICATION – where the Council refused to grant a preliminary approval for a material change of use for accommodation activities – where the land was in the Low impact industry zone – whether residential use of the land is contrary to the planning scheme intention – whether the variations to City Plan are consistent with the planning scheme – whether the location of the residential use is appropriate – whether the form of residential development is appropriate – whether there will be an unacceptable loss of submission rights – whether the proposed development can be provided without any unacceptable impacts – whether there is a need for retention of the land for low impact industry uses – whether there is a need for residential care facilities and retirement facilities – whether there is a need for student accommodation – whether there is a need for multiple dwellings – whether it is in the public interest to approve the proposed development
LEGISLATION:	City of Brisbane Act 2010 (Qld), s 232 Planning Act 2016 (Qld), ss 8, 43, 45, 59, 60, 61, 229, 288, 311 Planning and Environment Court Act 2016 (Qld), ss 43, 45, 47 Planning Regulation 2017 (Qld), ss 31, 32, sch 24. Sustainable Planning Act 2009 (Qld), ss 241, 242, 326
CASES:	Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied Adpen Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 59; [2020] QPELR 732, not followed Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved Bell v Brisbane City Council & Ors [2018] QCA 84; (2018) 230 LGERA 374, distinguished Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 249, approved Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13, approved Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; [2009] QPELR 435, approved Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409, distinguished Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, considered Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41, distinguished Self Storage Helensvale Holdings Pty Ltd v Council of the City of Gold Coast [2021] QPEC 29, approved Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, applied Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
COUNSEL:	C L Hughes QC, M Batty and B Rix for the Appellant B D Job QC and N Loos for the Respondent
SOLICITORS:	Mills Oakley for the Appellant Brisbane City Legal Practice for the Respondent The Co-respondents by Election were self-represented

MATERIAL CHANGE OF USE – 2 STOREY TOWNHOMES AND DETACHED HOUSES PRECINCT
Use	Level of Assessment	Assessment Criteria
Dual Occupancy	Code Assessment If development is a maximum of 2 storeys and 9.5m above NGL.	· Low-Medium Density Residential Zone Code (2 Storey Mix) · Dual Occupancy Code · Filing (sic) and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Stormwater Code · Transport. Access. Parking and Servicing Code (sic) · Waste Water Code
Dwelling House	Self-Assessment If complying with all self-assessable acceptable outcomes Code Assessment If not complying with all self-assessable acceptable outcomes	· Low-Medium Density Residential Zone Code (2 Storey Mix) · Dwelling House Code
Multiple Dwelling	Code Assessment If development is a maximum of 2 storeys and 9.5m above NGL.	· Low-Medium Density Residential Zone Code (2 Storey Mix) · Multiple Dwelling Code · Filing (sic) and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Park Planning and Design Code · Stormwater Code · Transport, Access, Parking and Servicing Code · Waste Water Code
MATERIAL CHANGE OF USE – 3 STOREY APARTMENT PRECINCT
Use	Level of Assessment	Assessment Criteria
Dual Occupancy	Code Assessment if development is a maximum of 3 storeys and 12m above NGL.	· Low-Medium Density Residential Zone Code (Up to 3 Store) (sic) · Dual Occupancy Code · Filling and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Stormwater Code · Transport, Access, Parking and Servicing Code · Waste Water Code
Dwelling House	Self-Assessment If complying with all self-assessable acceptable outcomes Code Assessment If not complying with all self-assessable acceptable outcomes	· Low-Medium Density Residential Zone Code (Up to 3 Storevs) (sic) · Dwelling House Code
Multiple Dwelling	Code Assessment If development is a maximum of 3 storeys and 12m above NGL.	· Low-Medium Density Residential Zone Code (Up to 3 Storeys) · Multiple Dwelling Code · Filling and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Park Planning and Design Code · Stormwater Code · Transport, Access, Parking and Servicing Code · Waste Water Code
Rooming Accommodation	Code Assessment If development is a maximum of 3 storeys and 12m above NGL.	· Low-Medium Density Residential Zone Code (Up to 3 Storevs) (sic) · Rooming Accommodation Code · Multiple Dwelling Code · Filling and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Stormwater Code · Transport, Access, Parking and Servicing Code · Waste Water Code
MATERIAL CHANGE OF USE – PARK RECREATION PRECINCT
Use	Level of Assessment	Assessment Criteria
Communal Open Space	-	-
MATERIAL CHANGE OF USE – 4 STOREY RETIREMENT PRECINCT
Use	Level of Assessment	Assessment Criteria
Residential Care Facility	Code Assessment If development is a maximum of 4 storeys and 15m above NGL.	· Medium Density Residential Zone Code · Multiple Dwelling Code · Residential Care Facility Code · Childcare Centre Code · Filling and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Park Planning and Design Code · Stormwater Code · Transport. Access, Parking and Servicing Code (sic) · Waste Water Code
Retirement Facility	Code Assessment If development is a maximum of 4 storeys and 15m above NGL.	· Medium Density Residential Zone Code · Multiple Dwelling Code · Residential Care Facility Code · Childcare Centre Code · Filling and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Park Planning and Design Code · Stormwater Code · Transport. Access, Parking and Servicing Code (sic) · Waste Water Code
MATERIAL CHANGE OF USE – 4 STOREY APARTMENT PRECINCT
Use	Level of Assessment	Assessment Criteria
Multiple Dwelling	Code Assessment If development is a maximum of 4 storeys and 15m above NGL.	· Medium Density Residential Zone Code · Multiple Dwelling Code · Filling and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Park Planning and Design Code · Stormwater Code · Transport. Access, Parking and Servicing Code (sic) · Waste Water Code
Rooming Accommodation	Code Assessment If development is a maximum of 4 storeys and 15m above NGL.	· Medium Density Residential Zone Code · Rooming Accommodation Code · Multiple Dwelling Code · Filling and Excavation Code · Infrastructure Design Code · Landscape Work Code · Outdoor Lighting Code · Stormwater Code · Transport. Access, Parking and Servicing Code (sic) · Waste Water Code