A self-storage facility in a residential area that cut across the planning scheme intent, no way

1 February 2017
Stafford Hopewell, Partner, Brisbane

Redevelopment of the Carseldine Palms Motel site for a self-storage facility was refused as it was in serious and major conflict with the Brisbane City Plan 2014

Fortress Freeholds Pty Ltd v Brisbane City Council & Ors – What’s the case about?

The Planning and Environment Court delivered a decision in the case of Fortress Freeholds Pty Ltd v Brisbane City Council & Ors [2016] QPEC 63 which involved an appeal against the Brisbane City Council’s deemed refusal of the development application for a material change of use of a self-storage facility and reconfiguring a lot from 1 lot into 8 in respect of land situated at Denver Road, Carseldine.

The Carseldine Palms Motel had been on the land since 1996 but was no longer operational. The landowner, Fortress Freeholds intended to redevelop the land to establish a self-storage facility on the western part of the land and seven residential allotments on the eastern part of the land.

The reconfiguring a lot component of the proposed development was not in issue on the appeal. The proposed development which involved the construction of the proposed self-storage facility was the main concern.  A number of issues were raised in the appeal, which included traffic, on-site parking and noise amelioration but it was ultimately accepted that they could be addressed by appropriate conditions.

Accordingly, the issues in dispute which the Court had to consider were whether the proposed facility was in conflict with the relevant provisions of the Brisbane City Plan 2014 and if so, whether there was a need for the proposed development.

The Court found that the proposed facility was in serious and major conflict with the City Plan 2014 and that no grounds were established to justify approval of the proposed development. As such the appeal was dismissed as it related to the proposed facility. However, given that the reconfiguring a lot component was not contested, the Court invited the parties to submit the appropriate form of order in relation to that component of the proposed development.

Snapshot of Court’s consideration and findings

Under the City Plan 2014, the subject land is located within a suburban living area for the purposes of the strategic framework and the low density residential zone.  The land is included in the Bracken Ridge and district neighbourhood plan and also affected by a number of overlays.

The Council contended that the proposed self-storage facility was in conflict with the City Plan 2014 which involved strategic planning conflict, land use conflict and built form conflict.  If conflict was found, the primary ground to approve the proposed facility was that there was a need for the proposed facility.

As to the strategic framework, the Court noted that the proposed use for a self-storage facility was not expressly discouraged but it contemplated non-residential uses that would support the surrounding residential area and were consistent with the applicable zoning pattern and neighbourhood plan. To that end, it was relevant to note that the proposed use was expressly contemplated in industrial areas.

Fortress Freeholds submitted that the low density residential zone code described the predominant uses in the zone being “dwelling houses supported by community uses and small-scale services and facilities which cater for local residents” but did not “purport to identify, and discourage, the range of uses that will fall outside those uses which are to predominate”.

In the Court’s view, the predominant form of development intended to occur within the relevant zone was dwelling houses. Further, the proposed facility did not constitute a small-scale non-residential use or could not be said to serve a local community facility need, as contemplated within the zone.

The Court considered that the zone code was clear and relevantly stated that “in circumstances where the drafters of the planning scheme have articulated, in the low density residential zone code, the types and scale of non-residential uses which are contemplated, being community uses and small-scale services and facilities that cater for local residents; and regulated, in a detailed way, the small-scale non-residential uses that may be introduced on residential zoned land; it is not logical, in my view, to conclude that a large-scale commercial uses, although not expressly discouraged, is nonetheless harmonious with the planning scheme provisions.  If that was the case, one would expect some express regulation of such uses.” On the basis that the proposed facility was a large-scale, non-residential use, it was in conflict with the zone code.

Fortress Freeholds sought to rely on the existing use of the land for a motel and the surrounding non-residential uses to ameliorate the conflict of the proposed facility with the City Plan 2014. However, the Court relevantly noted that entrenching a non-conforming non-residential use was not something to be encouraged and given the clear planning intent of the City Plan 2014, the Court did not accept Fortress Freeholds’ argument.

On the evidence before the Court, it was considered that the proposed facility was a very large commercial building and its scale and built form were not consistent with the amenity and character of the site. The Court did not accept that it was consistent with the community expectations and the infrastructure assumptions intended for the site.

Given the nature and extent of conflict with the City Plan 2014, it was necessary for Fortress Freeholds to demonstrate both a community and economic need. In this regard, the Court had the benefit of the evidence of economic experts. The Court however, had difficulties with some of the analysis undertaken by Fortress Freehold’s economic expert.

On balance, it was found that the findings of the Council’s expert were more persuasive than Fortress Freeholds’ expert. The Court was not satisfied that there was an economic or community need for the proposed facility in the locality and even if there was a need, there was appropriately zoned land within a reasonable distance for development of such facility to accommodate the need.

Points worth noting

When construing planning instruments, the following principles must be noted:

  • Planning instruments are to be read as a whole and applied in a practical and common sense way such that they achieve their evident purpose.  A planning scheme is to be construed broadly with a sensible practical approach, rather than pedantically or narrowly.
  • Statements of intent, aims and objective in planning schemes are designed to guide the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate.
  • A conflict with the planning scheme should be plainly evident and be considered against the substance of the planning scheme, rather than against a provision in isolation from the whole of the planning scheme.

“Need” in a planning context generally refers to “an objectively perceived need for the development”, rather than “a subjective desire for the development”. It usually connotes “the idea that the physical well-being of a community, or some part of it, can be better and more conveniently served by providing the means for ensuring the provision of that facility”.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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