Court approves dwellings despite non-compliance

30 January 2019
Stafford Hopewell, Special Counsel, Brisbane
The Planning and Environment Court in The Planning Place Pty Ltd v Brisbane City Council [2018] QPEC 62, recently approved a proposed redevelopment of a corner block located in Windsor for two dwelling houses proposed to be three storeys in height above a basement carpark, each to be located on its own allotment.

In this case, the Court considered whether the proposal’s bulk and scale, height and rear setbacks complied with the assessment benchmarks of City Plan 2014 (City Plan) or whether compliance could be achieved by imposing development conditions.

Due to the inclusion of the property in the Dwelling house character overlay, the proposed redevelopment was subject to code assessment against the relevant provisions of the City Plan. The trigger for code assessment was due to the material change of use component of the proposed redevelopment involving a new dwelling house in the ‘Low-medium density residential zone’ which did not comply with all acceptable outcomes in the ‘Dwelling house (small lot) code and the Dwelling house code’.

The primary focus of this appeal was whether the redevelopment complied with (or could be conditioned to comply with) the relevant assessment benchmarks under City Plan which would mean the proposed development must be approved.

The decision framework for code assessment

Code assessment is an assessment (the Assessment) that must only be carried out:[1]

  • Against the assessment benchmarks in a categorising instrument for the development application;
  • Having regarding to any matters prescribed by regulation.

City Plan 2014 is the categorising instrument that sets out the matters that the assessment manager must assess the development application against.

The relevant assessment benchmarks are contained within the Table of Assessment under City Plan 2014 and in this case include the:

  • Dwelling house (small lot) code;
  • Dwelling house code;
  • Low-medium density residential zone code;
  • Lutwyche Road corridor neighbourhood plan code.

Any decision must only be made based on the Assessment.[2]  After the Assessment has been carried out, the assessment manager (either Council or the Court as the case may be):[3]

  • Must decide to approve the development application to the extent the development application complies with all of the assessment benchmarks;
  • May approve the development in even if the development does not comply with some of the assessment benchmarks;
  • May impose conditions on any development approval for the development;
  • May refuse the development application if the development does not comply with some or all of the assessment benchmarks and compliance cannot be achieved by imposing conditions on any development approval for the development.

The Council’s concerns in relation to the rear setbacks primarily related to privacy impacts to the adjoining property.  It was ultimately conceded by Council that the privacy issues could be dealt with by conditions.

Issues for consideration in the appeal

Essentially the appeal came down to a consideration of the issues associated with the height of the proposed dwellings and whether there was compliance with the assessment benchmarks.

The key question for determination by the Court was whether the two dwelling houses complied with the assessment benchmarks in force at the date the development application was property made or whether they could be conditioned to comply.

If the development complied with the assessment benchmarks (or can be conditioned to comply) the development application must be approved.

Compliance with the assessment benchmarks

To be successful in maintaining its refusal, Council needed to establish that the proposed redevelopment could not comply with Performance Outcome PO2 of the Dwelling house (small lot) code or Performance Outcome P02(a) of the Dwelling house code (as there was no argument that the redevelopment could not comply with the relevant acceptable outcomes).

Relevant assessment benchmarks

Performance Outcome PO2(a) of the Dwelling House (small lot) code states:

Development is of a bulk and scale that:

(a) is consistent with and complements the built form and front boundary setbacks prevailing in the street and local area.

Performance Outcome PO2(a) of the Dwelling House code states:

Development has a building height that:

(a) is consistent with the building height of dwelling houses prevailing in the immediate vicinity.

Consideration in the appeal was given to the meaning to be attributed to the words ‘…is consistent with’. After careful analysis of these words, Her Honour Judge Kefford held that:[4]

In my view, the requirement of performance outcome PO2 of the Dwelling house (small lot) codes will be satisfied if the bulk and scale of the proposed lot 1 dwelling house is “compatible with, in the sense of being capable of existing in harmony with” the built form in the street and local area. This is a matter of impression that is not only informed by the height of the building, but also the existing setting and context of a particular area, including its topography and the presentation of the built form.

In terms of the assessment of the ‘bulk and scale’ of the proposed redevelopment, Her Honour ultimately held that the proposed redevelopment complied with the relevant assessment benchmarks, in particular, PO2(a) of the Dwelling House (small lot) code.

As to the assessment of the building height, the Council argued that the:

  • Non-compliance with the performance outcome was clear because the redevelopment would exceed the maximum number of storeys by 50%, which it regarded as numerically significant;
  • Vertical height requirement was not met by a ‘not insubstantial’ amount;
  • Acceptable outcome specifically requires a two-storey limit for a dwelling house in the 2 or 3 storey mix zone precinct of the low-medium density zone.

Following consideration of Council’s submissions as to the building height, Her Honour held that:[5]

These submissions ignore that the performance outcome calls for an assessment of the consistency of the building height, which involves certain elasticity to the consideration. The criterion does not call for a purely numerical or quantitative approach. [our emphasis added]

Having regard to evidence and the submissions of the parties, Her Honour determined that the proposed redevelopment complied with (or could be conditioned to comply with) the relevant assessment benchmarks.  This meant that the application must be approved.

The appeal was allowed and it was ordered that the Council deliver to the appellant a draft set out conditions of approval in respect of the proposed redevelopment.

Key Takeaway

Careful consideration should be given to the relevant decision framework, particularly in relation to code assessment where an assessment manager must approve an application to the extent it complies with the relevant assessment benchmarks.

As demonstrated by the recent decision in The Planning Place Pty Ltd v Brisbane City Council [2018] QPEC 62, this will require a careful analysis of performance outcomes[6], which will not always necessarily involve a ‘purely numerical or quantitative approach’.

[1] Section 45(3) of the Planning Act 2016.
[2] Section 59(3) of the Planning Act 2016.
[3] Section 60(2) Planning Act 2016.
[4] At paragraph 77.
[5] At paragraph 94.
[6] Amongst other relevant assessment benchmarks, such as the overall outcomes of the relevant zone code.

Authored by: 
Stafford Hopewell, Partner

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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