Envisage Development Management Pty Ltd v Redland City Council [2022] QPEC 57

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Envisage Development Management Pty Ltd v Redland City Council [2022] QPEC 57 PARTIES: ENVISAGE DEVELOPMENT MANAGEMENT PTY LTD (ACN 123 579 895) (Appellant) v REDLAND CITY COUNCIL (Respondent) FILE NO/S: 1668/21 DIVISION: Planning and Environment Proceeding PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 21 December 2022 DELIVERED AT: Brisbane HEARING DATES: 17 August 2022 – 19 August 2022 and 22 August 2022 JUDGE: McDonnell DCJ ORDER: The decision of the Council to approve the Development Application is set aside and replaced with a decision that the Development Application is refused. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of development application for preliminary approval for a material change of use for apartment building, tourist accommodation, refreshment establishment, shop – where site adjoins railway station – whether the proposal provides a mixed use – whether proposal provides active frontage – whether the proposal has unacceptable traffic impacts – weight to be given to new planning scheme. CASES: Andema Pty Ltd v Noosa Shire Council [2021] QPELR 783 Brisbane City Council v Klinkert [2020] QPELR 579 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 -- 1 of 42 -- 2 Drywound Pty Ltd v Lockyer Valley Regional Council & Ors [2017] QPELR 274 Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPELR 763 IB Town Planning v Sunshine Coast Regional Council [2022] QPELR 791 Klinkert v Brisbane City Council [2018] QPELR 941 Waterman & Ors v Logan City Council & Anor [2018] QPELR 46 LEGISLATION: Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) Planning Regulation 2017 (Qld) Sustainable Planning Act 2016 (Qld) COUNSEL: A Skoien for the Appellant K Wylie for the Respondent SOLICITORS: McCarthy Durie Lawyers for the Appellant McInnes Wilson Lawyers for the Respondent Introduction [1] The Appellant appealed against conditions imposed by the Redland City Council (Council) on a preliminary approval for a material change of use for a Mixed-Use Development (Apartment Building, Tourist Accommodation, Refreshment Establishment, Shop) (the Development Application) in respect of land located at 4 Harbourview Court and 144A Shore Street West, Cleveland (the Site). The Appellant stated in the Notice of Appeal that it sought that the decision be set aside and replaced with a decision to impose a condition on the preliminary approval identifying particular plans as the approved plans for the development. [2] The Appellant now seeks that the preliminary approval issued by the Council be replaced by a development permit, subject to appropriate lawful conditions. -- 2 of 42 -- 3 The Site and surrounds [3] The Site comprises two parcels, Lot 2 and Lot 3 on SP273106, and is generally flat. The parcels are not contiguous. Bordering the southern boundary of Lot 2 is the rail line and the Cleveland Railway Station. To the west of Lot 2, on the northern side of the railway line, is Lot 1 which is not included in the Development Application. To the south of the rail line and station is a further rectangular parcel of land which is commuter car parking and does not form part of the Site. Lot 3 is situated to the east of the additional commuter car parking and south of the Station. [4] Lot 2 has an area of approximately 4,390m² with a frontage of approximately 46.75 metres to Harbourview Court. There is an existing driveway access to the railway commuter car park on Lot 2 from Harbourview Court. Lot 2 is presently improved by hardstand railway commuter car parking area with areas of landscaping. [5] Lot 3, being 158m², has a frontage of approximately 22.7 metres to the corner of Harbourview Court and Shore Street West. It is landscaped with a large eucalyptus tree which is to be retained in this development. [6] Further to the south on the opposite side of Shore Street West is a seven-storey apartment building with ground level commercial facilities, the Cleveland Library car park and a smaller commercial development adjacent to the Waterloo Street roundabout. To the north and west is a large townhouse development containing 74 units which front Columbus Canal/Raby Bay Marina. Between the site and the townhouse development is a public pathway. On the opposite side of Harbourview Court is the Raby Bay Harbour Park containing passive recreational facilities. The park forms part of the pedestrian link between the harbour and Central Cleveland. The proposal [7] The proposed development on Lot 2 will include 143 ground level commuter car parks. There are two vehicle accesses. The existing commuter car park access remains in its present location on Harbourview Court. To the north of that a second access and ramp is proposed to access the car parking for the residential use. Between the two crossovers is the lobby for the residential development and a screened electrical substation within the car park. Bin storage is also located on this level. The level one podium contains 124 car parks for the residential and tourist accommodation. A second podium level comprises communal facilities, six one- -- 3 of 42 -- 4 bedroom tourist accommodation units and some residential units. Above this and comprising levels three to eight, are two towers containing one to three-bedroom units. In total there will be 124 units, including the six for tourist accommodation. [8] The communal facilities for the development will service the units and include a lap- pool, small gymnasium, business centre, barbeque and recreation deck. To the extent that the Appellant’s town planner, Mr Burmeister, assumed that the uses included a public gym and commercial office space as contributing towards the mixed-use development as public facilities, this was not established. Rather they are uses associated with the unit development. [9] Lot 3 is proposed to be developed with a refreshment establishment (café) and shop and areas for external seating. The history of the application and the appeal [10] Between 11 December 20151 and 27 January 2016,2 the Appellant made a properly made the Development Application. [11] By letter dated 29 March 2016, consultants for the Appellant wrote to the Council indicating that it proposed to rely upon amended architectural plans and attached revised plans dated 23 March 2016. The Appellant changed the Development Application to rely upon that set of plans. [12] The Development Application: (a) was required to be subject to code assessment; and (b) required referral to the Chief Executive as a consequence of the Site’s proximity to a State transport corridor, the Cleveland rail line. [13] The Council issued an information request, and the Appellant provided an information request response. The Department of Infrastructure, Local Government and Planning provided a concurrent agency response requiring that conditions be attached to any development approval. 1 On this date, the Council told the Appellant the development application was not properly made due to a failure to pay the relevant application fee. 2 On this date, the Council gave the Appellant an Acknowledgement Notice pursuant to s 268 of the Sustainable Planning Act 2016 (Qld) (SPA). -- 4 of 42 -- 5 [14] By letter dated 30 January 2017 the Council issued a decision notice granting a preliminary approval for material change of use for Mixed-Use Development (Apartment Building, Tourist Accommodation, Refreshment Establishment, Shop).3 The Council imposed two conditions, the first requiring the provision of sufficient car parking for the apartment building use and the second requiring that the development be designed in a manner to retain and protect the existing eucalypt on Lot 3. The preliminary approval made no reference to plans. [15] On 9 March 2017, the Appellant requested a negotiated decision notice.4 [16] On 5 February 2020, a negotiated decision notice issued from the Council for a development permit for material change of use subject to conditions.5 [17] By letter dated 7 April 2020, the Council advised that it considered that the development permit had been affected by a material procedural error and was invalid.6 This was because the effect of the representations made by the Appellant was to change the Development Application to relocate the café/shop to a parcel of land not previously included in the Development Application. [18] On 24 June 2021, the Council notified that it did not agree with the representations made on 9 March 2017.7 [19] On 1 July 2021, the Appellant commenced the appeal seeking that the preliminary approval decision be replaced with a decision to impose a condition on the preliminary approval identifying particular plans as the approved plans for the development. [20] On 6 May 2022, a minor change was made to the Development Application, and orders were made that the appeal proceed on the basis of the changed proposal.8 [21] Following this minor change the Appellant notified further issues.9 It said that the decision of the Council ought to be set aside and replaced with a decision to issue a 3 Ex. 1, Appeal Book tab 8. 4 Ibid tab 9. 5 Ibid tab 11. 6 Ibid tab 12. 7 Ibid tab 13. 8 Order of Everson DCJ made 6 May 2022, Court Document 23. 9 The parties accepted that the Appellant’s Amended Statement of Facts, Matters and Contention dated 6 June 2022 comprised the issues pursuant to the Order and that these issues were notified by the -- 5 of 42 -- 6 development permit for the Further Changed Development Application, with conditions of approval.10 There was no pleading in the alternative. The Notice of Appeal was not amended. [22] On 1 June 2022, Williamson QC DCJ made orders confirming the issues in the appeal were confined to the issues raised in the Appellant’s Amended Statement of Facts, Matter and Contentions dated 20 May 202211 and the Respondent’s Amended List of Matters dated 30 May 2022.12 What is the statutory assessment framework? [23] The Development Application was made, assessed and decided under the repealed SPA. The appeal was commenced pursuant to s 229(1) of the Planning Act 2016 (Qld) (the Planning Act). This appeal is to be determined under the Planning Act13 and the Planning and Environment Court Act 2016 (Qld) (PECA).14 [24] The appeal is a hearing anew.15 The Appellant bears the onus in the appeal.16 [25] As the Development Application is code assessable, the assessment must be carried out only: (a) against the assessment benchmarks in a categorising instrument for the development; and (b) having regard to any matters prescribed by the Planning Regulation 2017 (Qld) (the Regulation).17 [26] In deciding the appeal, the Court must confirm the decision appealed against, 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.18 Appellant before the Council notified of its amended issues on 30 May 2022. Transcript 22 August 2022, T1-49 ll 19-30. 10 The Appellant’s Amended Statement of Facts, Matters and Contentions dated 6 June 2022, Court Document 26. 11 Actually dated 6 June 2022. 12 Order of Williamson QC DCJ made 1 June 2022, Court Document 25. 13 ss 311(1)(c)(ii), (4). 14 ss 76(1)(c)(ii), (3); see also Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPELR 763 [24] – [88]. 15 PECA ss 43, 46(2). 16 Ibid s 45(1)(a). 17 Planning Act s 45(3). 18 PECA s 47. -- 6 of 42 -- 7 [27] The decision of the Court must be based on an assessment against the assessment benchmarks.19 The decision making for code assessable development is subject to s 60 of the Planning Act, which relevantly provides that: “(2) To the extent the application involves development that requires code assessment...the assessment manager, after carrying out the assessment – (a) must decide to approve the application to the extent development complies with all of the assessment benchmarks for the development; and (b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; ... (d) may, to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.”20 [28] As observed by Williamson QC DCJ in Klinkert v Brisbane City Council, the discretion conferred by s 60 of the Planning Act is “expressed in permissive (‘may’) and broad terms”.21 The Court of Appeal confirmed this approach in Brisbane City Council v YQ Property Pty Ltd in which Henry J, with whom Fraser and Morrison JJA agreed, stated: “… s 60(2) expressly confers the assessment manager with the discretion to approve the application ‘even if the development does not comply with some of the assessment benchmarks’. The inter-play of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with a planning instrument.”22 [29] Section 45(8) of the Planning Act provides that the assessment manager may give weight that the assessment manager considers appropriate in the circumstance to an amended or replacement statutory instrument. [30] As observed by the Court of Appeal in Brisbane City Council v Klinkert: “Whilst the assessment manager is entitled to give weight to an amendment or replacement, if considered appropriate, any weight given is in the context of a statutory requirement for the assessment manager to carry out the assessment only against the assessment benchmarks that are in effect when the application was properly made. 19 Planning Act s 59(3). 20 Ibid s 60(2). 21 [2018] QPELR 941, [102]. 22 [2021] QPELR 987, [62]. -- 7 of 42 -- 8 Further, to the extent that an amendment is given weight, that weight must be afforded, having regard to the prohibition on a local characterising instrument, in its effect being, inconsistent with the effect of a specified assessment benchmark.” 23 What is the planning framework? [31] The planning scheme in effect at the time the Development Application was properly made was the Redlands Planning Scheme, Version 7 (the Planning Scheme). The Planning Scheme is the relevant categorising instrument. The Planning Scheme has been replaced. The planning scheme presently in effect is Redland City Plan 2018 Version 6, (RCP) which came into effect on 9 February 2022. [32] Under the Planning Scheme Overall Outcomes are the purpose of a Code.24 Specific outcomes contribute to achieving the Overall Outcomes and are the outcomes by which code assessable development is assessed.25 Probable solutions are prescriptive requirements and provide a guide to achieving Specific Outcomes,26 but compliance with a probable solution is not deemed compliance with the Specific Outcomes. [33] For code assessable development, the Planning Scheme requires development to be assessed against all the applicable codes for the relevant use as listed in column three of the zone tables of assessment.27 [34] Development that is consistent with the Specific Outcomes in a code complies with the code.28 Accordingly, the Development Application must comply with the Specific Outcomes of the relevant codes to achieve compliance. [35] Under the Planning Scheme the Site was included in the Major Centre Zone Code area (sub-area MC5). It was identified by the Cleveland Key Elements Map, as one of four Gateway sites and had a Primary Active Frontage on its southern and eastern boundaries.29 [36] The codes relevant to the assessment of the Development Application are the Major Centre Zone Code, the Apartment Building Code and the Access and Parking Code. 23 [2020] QPELR 579, [39]. 24 Ex. 7, CEO Certificate, Planning Scheme Extracts p15, para 1.2.1(1)(b). 25 Ibid para 1.2.1(1)(c). 26 Ibid para 1.2.1(1)(d). 27 Ibid p22, para 1.2.6 (1)(b). 28 Ibid p47 para 4.12.16(1), p77 para 6.4.2(1), p92 para 8.1.2(1). 29 Ex. 6, CEO Certificate [4]. -- 8 of 42 -- 9 [37] For the purposes of this appeal, the relevant steps are: (a) The Development Application must be assessed against the benchmarks in effect when the Development Application was properly made and having regard to the matters prescribed by the Regulation. The matters prescribed by the Regulation are discussed further below; (b) If the Development Application does not comply with the benchmarks, whether compliance can be achieved by the imposition of conditions; and (c) If not, whether the Development Application should, in any event be approved in the exercise of the discretion afforded by s 60(2)(b) of the Planning Act. In the course of this determination, weight may be given to the new planning scheme in effect. What are the issues in the appeal? [38] At the conclusion of the evidence the parties provided an updated Agreed List of Issues.30 They identified the issues in dispute as: 1. Whether, in the exercise of the Court’s discretion, the Preliminary Approval issued by the Council in respect of the Development Application ought to be replaced by a development permit for the proposed development, subject to appropriate lawful conditions, bearing in mind matters raised by the Council in paragraphs 2 to 6 below. 2. Whether the proposed development, by providing no uses on the ground level of Lot 2 (other than car parking spaces) and two driveways to Harbourview Court, and by the provision of only residential uses (multiple dwelling and tourist accommodation) on Lot 2, fails to achieve: (a) an active street frontage between the development on Lot 2 and Harbourview Court and the railway station building to the south; (b) a mixed-use development; and whether, because of the above matters, the proposed development is inconsistent with the Planning Scheme Major Centre Zone Code: 30 Ex. 21. -- 9 of 42 -- 10 (c) Overall Outcomes 3(a)(ii)(c) and (iv)(k); and (d) Specific Outcomes S1.3, S1.5(3), S2.5(2)(d) and (f) and S2.7(1)(b); and 3. Whether, because of the matters set out in the previous paragraph, weight should be placed upon any non-compliance with the RCP Principal Centre Zone Code; (a) Overall Outcomes 2(b) and (g); and (b) Performance Outcomes PO4 and PO13. 4. Whether the proposed development will result in unacceptable traffic impacts and, in particular: (a) whether the proposed development provides sufficient car parking for residents and visitors; (b) whether the proposed development, by the incorporation of two driveways, will result in an unacceptable loss of on street short term parking spaces on Harbourview Court; (c) whether the proposed development provides sufficient circulation between the northern and southern car parking bays of the ground floor parking layout; and (d) whether the proposed development adequately accommodates service vehicle access, standing and manoeuvring for refuse collection. and whether because of the above matters, the proposed development is inconsistent with the Planning Scheme: (e) Access and Parking Code Overall Outcomes 2(a)(ii), (iii) and (v) and Specific Outcomes S1(1)(b), S3.1(1)(g) and (2), S7.1(1)(a) and (e) and S8.1(1)(f)(i), (f)(iii), f(vi). (f) Apartment Building Code Specific Outcomes S8(1)(a), (b) and (e). 5. Whether, because of the matters set out in the previous paragraph, weight should be placed upon any non-compliance with the RCP Transport, Servicing, Access and Parking Code: (a) Overall Outcomes 2(a), (c) and (d); and -- 10 of 42 -- 11 (b) Performance Outcomes PO1(5), PO3(5), PO8, PO9(1), PO9(6), PO14, PO20(1), PO20(3) and PO20(4). 6. Whether it is possible to condition the proposed development to comply with any of the assessment benchmarks set out above that are not complied with. [39] Broadly this requires the following issues be addressed: (a) whether the proposal delivers a mixed-use development; (b) whether the proposal provides an active frontage; (c) the loss of on street car parks (the on street car parking issue); (d) whether the proposal provides adequate onsite car parking (the onsite car parking issue); (e) whether adequate two-way traffic circulation is provided on the ground floor (the circulation issue); (f) the failure to provide a dedicated service bay for waste collection vehicles (the service vehicle issue); (g) conditions; and (h) discretion. [40] The Council said its concerns that the proposal is not a mixed-use development and that there is inadequate car parking cannot be remedied by the imposition of conditions, but only by a differently designed development. Accordingly, the Council’s position is that the Development Application should be refused. What are the Planning Scheme provisions? [41] The relevant Overall Outcomes of the Major Centre Zone Code are: “(3) the overall outcomes sought by the Major Centre Zone are described by six characteristics … (a) Uses Role and Function … -- 11 of 42 -- 12 (ii) Provide for a range of residential and tourist accommodation uses that – …. c are designed and integrated as part of a mixed-use development that ensure the maintenance of active street frontages at ground level. … (iv) Sub-areas MC3, MC4, MC5, MC6, MC7 and MC8 comprise the Cleveland Major Centre which provides for a range of uses that – … k within sub-area MC5 – encourages mixed-use development that is compatible with rail uses and incorporates a passenger terminal, interchange, apartment buildings, commercial activities, retail uses of a limited floor area and tourism opportunities;”31 [42] The relevant Specific Outcomes of the Major Centre Zone code are: “Uses, Role and Function – … S1.3 Residential and tourist accommodation uses are designed and integrated as part of a mixed-use development ensuring the maintenance of active street frontages at ground level. … S1.5(3) Sub area MC5 – encourages mixed-use development that is compatible with rail uses and incorporates a passenger terminal, interchange, apartment buildings, commercial activities, retail uses of a limited floor area and tourism opportunities; … Built Form and Density – … S2.5(2) Building design and layout incorporates architectural elements that … 31 Ex. 7, CEO Certificate, Planning Scheme Extracts. -- 12 of 42 -- 13 (d) ensures high levels of physical and visual interaction and access with adjoining pedestrian areas at ground level; … (f) provide physical connections and linkages between buildings, and between buildings and public places, to encourage pedestrian movement; … S2.7(1) Building design in sub-area MC5 ensures – … (b) retail elements and other activity generating uses within the centre are located primarily on the ground floor interacting with the adjacent public space;”32 [43] The following Specific Outcomes of the Apartment Building Code are relevant:- “Access and Parking – S8(1) Accessways and vehicle parking – (a) is safe and convenient for residents and visitors; (b) has an appropriate number of car parking spaces to cater for residents and visitors; … (e) are designed to incorporate adequate waste collection, manoeuvring and service areas;”33 [44] The following Overall Outcomes and Specific Outcomes of the Access and Parking Code are relevant: “8.1.3 Overall Outcomes of the Access and Parking Code … (2) the overall outcome sought for the Access and Parking Code is the following – (a) to ensure – … (ii) efficiency of vehicle movements in the movement network is maintained; (iii) development is provided with safe and functional on-site parking that meets user needs; 32 Ibid. 33 Ibid. -- 13 of 42 -- 14 … (v) provision of servicing and manoeuvring areas that facilitate clear and safe internal on-site vehicle movements and allow access for service vehicles. … Specific Outcomes Off-Street Parking – S1(1) Uses and other development provide off-street vehicle parking that – … (b) takes into consideration – (i) the type and size of development; (ii) expected resident, employee and customer movements; (iii) the location of the use; (iv) the capacity of the existing road network to accommodate on-street parking; (v) access to public transport. … Driveway Location and Design S3.1(1) Driveways are located having regard to the following- … (g) maintaining on-street parking; … (2) the maximum number of driveways accessing a lot or premises is one, unless it can be shown that multiple driveways will improve ingress/egress, internal traffic operation, and pedestrian safety. … Vehicle Parking Areas and Structures S7.1(1) Vehicle parking areas and structures are designed to – (a) provide a clear internal movement hierarchy: … (e) ensure vehicles do not reverse into areas of high pedestrian activity; … -- 14 of 42 -- 15 Servicing and Manoeuvring Areas S8(1) Servicing and manoeuvring areas – … (f) design and site layout – (i) achieves adequate provision for on-site servicing that is clearly defined, safe and easily accessible; … (iii) enables vehicles to manoeuvre into a service bay when all other bays are occupied; … (vi) maintains clear access to waste containers for collection vehicles.”34 How to treat the Development Agreement? [45] When assessing the Development Application regard must be had to the matters prescribed by the Regulation.35 The Appellant said there are infrastructure agreements to which regard must be had. [46] The Appellant said it entered into infrastructure agreements with the State and the Council. In particular : (a) The Development Agreement – Cleveland Station Transit Precinct with the State dated September 2015 (the Development Agreement).36 The Development Agreement with the State has been extended by Deed of Variation dated 13 October 2021. Mr Kuhn for the Appellant said the Development Agreement facilitates this development, if approved, as:- (i) Lot 3 will be transferred to the Appellant; (ii) A volumetric lot located above Lot 2 will be surveyed and agreed between the Appellant and Queensland Rail and transferred to the Appellant for development; 34 Ex. 7, CEO Certificate, Planning Scheme Extracts. 35 Planning Act s 45(3)(b); Planning Regulation s 27, sch 24 (definition of ‘common material’). 36 Ex.10, Town Planner’s JER; Ex. 14, Statement of John Ronald Kuhn dated 4 August 2022, Ex. JRK- 1. -- 15 of 42 -- 16 (iii) The ground level of Lot 2 will be retained by Queensland Rail as commuter car park; (iv) Easements will be surveyed and agreed between the Appellant and Queensland Rail over the ground level Lot 2 for the purposes of access (vehicular and pedestrian), services, and building support as required; (v) Lot 1 will be developed for an extension of the existing commuter car park and be retained by Queensland Rail for the Cleveland Railway Station. This will create up to 20 additional car parking spaces and allow vehicle circulation; and (vi) A Building Management Statement will be agreed between the Appellant and Queensland Rail based on detailed building plans including access and easement requirements.37 (b) The agreement with the Council, dated 20 December 2019.38 This requires the Appellant to construct, at the Appellant’s cost, 72 additional carparking spaces at a nearby location in Shore Street. These are for the exclusive use of the State during the construction of the proposed development. [47] The Appellant said that the Development Agreement is an agreement between a public sector entity and the Appellant about the provision of infrastructure and so is an infrastructure agreement that forms part of the common material to which regard must be had when assessing the Development Application.39 [48] The Appellant says its relevance arises because it envisages: (a) the sharing of the commuter car park with the proposed use; and (b) the provision of up to an additional 20 commuter car park on Lot 1. [49] Further, it said that a condition could be imposed on the development approval that the development of Lot 1 pursuant to the Development Agreement takes place before the use the subject of this appeal commences, which it said will resolve all issues in the appeal except the loss of the drop and go spaces. 37 Ex. 14, Statement of John Ronald Kuhn dated 4 August 2022, [13]. 38 Ibid Ex. JRK-3. 39 Planning Act s 45(3)(b); Planning Regulation s 27, sch 24 (definition of ‘common material’). -- 16 of 42 -- 17 [50] In Schedule 9 of the Development Agreement, the parties indicate an intention that the document constitute an infrastructure agreement under SPA.40 Clause 1.5 of Schedule 9 provides: “(a) The parties acknowledge that despite any Conditions Precedent, this Agreement is subject to: (i) the Chief Executive for the time being administering the SPA granting his or her approval to the terms of this document, as required under s 676(2) of the SPA; and (ii) notice of that approval being given to the parties to this document under s 676(3) of the SPA. (b) In the event that the Chief Executive for the time being administering the SPA informs the parties that the approval in Clause (a) above is not granted, this Agreement is of no effect.”41 [51] There was no evidence that the Chief Executive’s approval of the Development Agreement had been granted. [52] By the Development Agreement shared facilities are created including the “car park and driveway areas Area A2”.42 The Building Management Statement plans identifying this area were not in evidence. Thus, the precise nature of the sharing arrangement was unclear. [53] Mr Skoien submitted that: “The public sector entity and the appellant envisage that there will be shared arrangement for use of the car park, relevant to the car park and the car park accesses for the - for both the operation of the car park by in effect the state, and the operation of the subject development by the developer, the appellant. Your Honour, the appellant has realised… that one area there that might cause problems would be if residents have an idea that they can use the commuter car park for their own additional cars - that’s not intended. It’s certainly intended that it’ll be used for visitor space and visitor space only and there is absolutely no reason why a condition can’t be imposed - two conditions, one precluding that. Secondly, and most importantly, so far as there is some suggestion that enforcement or concerns about enforcement being involved, that for provision for a building management statement or a community management statement prior to any of the use commencing that ensures that residential parking is only to be on level 1 of the building.”43 40 Ex. 14, Statement of John Ronald Kuhn dated 4 August 2022, p126 [1.1(a)]. 41 Ibid p126. 42 Ibid p136, para 4.1, p149. 43 Transcript 22 August 2022, T1-35 l 37 - T1-36 l 3. -- 17 of 42 -- 18 [54] The Council said it was not in a position to make submissions about whether the Development Agreement is an infrastructure agreement,44 that there was no evidence that the conditions precedent identified in Clause 1.5(a) had occurred and was surprised by the Appellant’s reliance upon the Development Agreement as it was not identified as an issue in dispute. In the circumstances, the Council said the Court would not otherwise have regard to the agreement. [55] Williamson QC DCJ observed in IB Town Planning v Sunshine Coast Regional Council that: “…Section 45(5)(a)(ii) of the Act, read with s 31(1)(f) of the Planning Regulation 2017, make it clear that the approved use is a mandatory consideration in the assessment of the development application. An underlying purpose for this includes a matter of practicality; it is to ensure the assessment, and decision making process, is not carried out in an artificial way without reference to the particular circumstances of the land and locality. The weight given to matters of this kind in the assessment is, however, a different question…”45 [56] Although that decision related to an impact assessable application and the need to have regard to the approved use of the land, the same reasoning applies in the present case in the application of s 45(3)(b) of the Planning Act and s 27(1)(f) of the Regulation. [57] Thus, if the Development Agreement is an Infrastructure Agreement regard must be had to it in assessing the Development Application, and it is necessary to ascertain the weight to be afforded it. [58] On the evidence, I cannot be satisfied that the Chief Executive has granted approval to the terms of the document as required by Clause 1.5(a) of Schedule 9 of the Development Agreement. [59] Further, the rights arising under the Development Agreement are unclear: (a) The building management statement46 is in draft form with items to be negotiated and agreed between the parties; 44 Transcript 22 August 2022, T1-50, l 16. 45 [2022] QPELR 791 [111]. 46 Ex. 14, Statement of John Ronald Kuhn dated 4 August 2022, p130. -- 18 of 42 -- 19 (b) The shared facilities are identified by reference to areas.47 The plans identifying those areas were not in evidence to enable the location of those areas to be determined; and (c) The nature and terms of the shared arrangement is not clear from the evidence. That it is unclear is apparent from the Appellant’s submissions extracted at paragraph [53]. [60] Without deciding the issue, I am prepared to accept the Appellant’s position for the present purposes. I proceed on the basis that the Development Agreement is an Infrastructure Agreement which is in effect, applying to the premises, forming part of the common material. Regard must be had to it in assessing the Development Application. However, it is not an assessment benchmark. [61] Given the uncertainty of the precise nature of the rights arising under the Development Agreement, I would afford it limited weight. However, because I have found that the proposal does not provide an active frontage and a mixed-use development, giving the Development Agreement significant weight does not change the outcome. [62] The agreement with the Council addresses with the provision of commuter car parking during construction. The Appellant told the Court that the Council may retain these car parks for future use. There was no evidence that this would occur. In these circumstances, and in view of the issues in the appeal, the agreement with the Council is of very limited relevance in assessing the Development Application and I afford it no weight. The onsite car parking issue [63] The development makes provision for 124 car parks48 comprising one for each of the 118 apartments and six for the tourist accommodation use. No provision is made for parking for visitors or the café use. [64] The Probable Solution corresponding to S1(1) of the Access and Parking Code is P1(1)(a), which refers to minimum onsite parking requirements for various uses set out in Table 1 of the Code (Table 1). 47 Ibid p147. 48 Ex. 12, Traffic JER, p3, l 17. -- 19 of 42 -- 20 [65] It was common ground between the traffic experts, Mr Crank for the Appellant and Mr Pekol for the Council, that pursuant to Table 1, the proposal requires 162 spaces49 comprising 148 car parks for the apartments (118 for the apartments and 30 for visitors to the apartments), 6 plus staff car parking for the short-term accommodation and 8 for the café. Thus, adopting the probable solution as a guide, there is a shortfall of 38 spaces. [66] Specific Outcome (1)(b) of the Access and Parking Code provides a list of matters which the assessment manager must take into consideration. These considerations do not require delivery of a maximum number of carparks, as opposed to a minimum. The Code does not actively seek to minimise the number of car park spaces that development provides. The provisions require determination of the expected demand for car parking having regard to a number of matters to ensure that demand is satisfied by sufficient onsite carparks as part of the development. [67] Mr Pekol and Mr Crank agreed that some relaxation of the Council’s standard rates was warranted by the Site’s proximity to the train station.50 Mr Pekol’s issue was with the amount by which that was proposed and the impact that he considered it would have on the vicinity of the site including residents, businesses and legitimate users of the commuter car parking.51 [68] In undertaking his analysis, Mr Pekol had regard to the Planning Scheme provisions and also considered likely parking demand by reference to fine-grained statistical analysis for the area in the immediate proximity of the subject site,52 consideration of visitor car parking requirements by reference to DTMR household travel survey data53 and New South Wales RTA guidance for visitor parking at high density residential buildings.54 [69] Having regard to these matters, Mr Pekol anticipated a demand for 177 spaces for residents which he considered is more precise than Mr Crank’s estimate as it is based on observed data and accounts for the proximity of dwellings to the Cleveland 49 Ibid p6 Table 1. 50 Ibid p13 [5]. 51 T2-64, ll 1 – 12. 52 Ex. 16, Mr Pekol’s Statement, [16] – [17]. 53 Ibid [24] – [26]. 54 Ibid [32]. -- 20 of 42 -- 21 Railway Station.55 He anticipated demand for visitor parking of 17 to 24 spaces56 and applying a discount factor to account for some residents not being home to receive visitors during the day, he anticipated demand for 6 to 13 visitor car parking spaces during the day, when the park and ride facility cannot be relied upon.57 [70] The Appellant criticised Mr Pekol’s identified demand for visitor parking suggesting it failed to take into account the extent to which residents would be available to receive visitors, but I accept that Mr Pekol’s figures take this into account. [71] Mr Pekol considered that the provision of insufficient car parking spaces for residents may cause residents to park in the commuter facility as it would be free, convenient, off-street, under cover and not subject to time limits. This would reduce the capacity of the commuter facility to accommodate legitimate commuter patrons. Consequences of this, in his opinion, include: (a) overflow parking in the commuter facility into person with disability spaces, onto medians and into aisles; (b) overflow parking in the adjacent multiple-dwelling unit complex to the north; and (c) overflow parking in Harbourview Court, for example in the kerbside drop off and pick up zones. [72] He considered that the impact on on street parking would be exacerbated by the loss of on street short-term car parking on Harbourview Court discussed below. [73] Mr Pekol agreed that demand for visitor car parking was likely to occur outside current peaks for the commuter car park.58 He agreed that this demand could be accommodated in the commuter carpark on the evenings and on the weekend (but considered it undesirable as it is not within the body corporate’s control) but not on the weekdays. He opined that on weekdays between 7.30am and 4pm this lack of capacity would have adverse consequences for the residential parking area, commuter car parking, the adjacent multi-unit dwelling and Harbourview Court.59 55 Ibid [17]. 56 Ibid [32]. 57 Ibid [34]. 58 T2-44, ll 11 – 12. 59 Ex. 16, Mr Pekol’s Statement, p9 [27]. -- 21 of 42 -- 22 [74] Mr Crank considered the 2010 “Growth Management Queensland – Transit Oriented Development Guideline” (QCTOD), Table 1 and the RCP Transport, servicing, access and parking code Table 9.3.5.3.2 – Minimum onsite vehicle parking requirements. These required 98, 162 and 206 car parks respectively. He then applied statistical data for the Cleveland area60 to support the onsite parking provision. Whilst Mr Crank embraced the TOD guidelines, he acknowledged that they were not to be applied as an assessment benchmark in assessing this application. [75] Based upon this approach he considered that 124 car spaces and 4 motorcycle spaces for the residential units appropriate because it is a transit orientated development, and he pursued shared use of the commuter car parking for vehicle parking for visitors and the café. He said 124 resident parking spaces is consistent with the QGTOD guide base maximum and exceeds its preferred maximum.61 [76] Mr Crank agreed that there is presently limited capacity for the existing road network in the vicinity of the Site to accommodate on street parking.62 He accepted that residents in the 118 units will use the Queensland Rail commuter car park.63 [77] Mr Pekol was critical of Mr Crank’s application of the QCTOD guide as a determinative measure for ascertaining car parking demand because: (a) the ABS data utilized by Mr Pekol is site specific and inconsistent with the parking rates quoted in the QGTOD guide; (b) it was necessary to have regard to potential adverse impacts flowing from the under-provision of residential car parking on the existing surrounding development; (c) the QGTOD guide recommends that parking demands be managed to ensure that local amenity is not compromised; and (d) the development does not include many of the good practice measures recommended by the QGTOD guide which would help manage carparking demands to ensure that local amenity is not compromised.64 Specifically, it 60 Ex. 12, Traffic JER, p7 Figure 1. 61 Ex. 13, Individual report of Mr Crank, [19] – [21]. 62 T2-9, ll 26 – 27. 63 T2-20, ll 5 – 27. 64 Ex. 16, Mr Pekol’s Statement, [20]. -- 22 of 42 -- 23 fails to minimise the number of vehicle entrances, conceal podium parking with active frontages, unbundle car parking from the sale of residential dwellings or price parking appropriately to promote sustainable travel behaviour.65 [78] He observed that if the proposal implemented all the “good practice” measures then some level of car parking relaxation to 140 – 157 spaces may be warranted.66 [79] Mr Crank accepted that Mr Pekol’s fine-grained statistical analysis should be preferred to Mr Crank’s own statistical data contained at Figure 1 on page 7 of the Traffic JER.67 He opined that incorporation of the TOD good practice principles identified by Mr Pekol into the development would justify a reduction of resident’s car spaces to below 100.68 [80] Mr Crank maintained that dedicated visitor car parks are not required because the QGTOD is silent on these.69 Applying TOD principles he opined that peak visitor demand of 12 cars may be generated in the evenings and on weekends and that demand outside those times would be significantly less. [81] Mr Crank accepted there would be a demand for visitor parking that is not accommodated by the residents’ car park that would need to be either accommodated in the commuter car park or elsewhere.70 On Mr Crank’s evidence the proposal does not provide an appropriate number of car parking spaces that cater for residents and visitors. [82] Ultimately, however, he opined this demand would be satisfied by the car parking on Lot 1 provided pursuant to the Development Agreement. This is discussed later. [83] Mr Lamb’s experience71 is consistent with Mr Pekol’s opinions. Mr Lamb, a resident in Harbourview Court, spoke of directing his visitors, who rarely arrived by train, to park in the commuter car park at the train station or on the street when unable to find a free visitor parking bay, and of visitors parking in vacant owner bays. 65 Ibid pp7 – 8. 66 Ex. 12, Traffic JER, p11, ll 1 – 16. 67 T2-21, ll 24 – 31. 68 T2-23, l 17 – 18. 69 Ex. 12, Traffic JER, p8, l 6. 70 T2-5, ll 43 – 44. 71 Ex. 17, Statement of Wayne Lamb. -- 23 of 42 -- 24 [84] I prefer the evidence of Mr Pekol regarding onsite carparking demand created by the proposed development for residents and visitors, as he utilised site specific data, which was accepted by Mr Crank as being preferred over the data upon which he relied. [85] While I accept that a reduction in on site car parking below that provided for in Table 1 is warranted having regard to the Site’s location, I do not accept Mr Crank’s approach. In my opinion, he placed too much reliance upon TOD principles and the availability of the commuter carpark for visitor use. The TOD principles are not genuinely achieved as there is free, untimed parking available. Signage at the visiting commuter car park presently indicates Queensland Rail prohibits the use of the facility for other than Queensland Rail patrons.72 The commuter car park, being outside the control of the body corporate, may experience a change in conditions in the future. [86] Visitors may be able to access a car park in the commuter facility after hours or on weekends. At other times the car park will, on the evidence of both experts, be fully utilised by commuters. Visitors utilising the commuter car park would adversely impact on the ability of the commuting public to use it. [87] I accept Mr Pekol’s evidence that the car parking supply proposed by the Appellant will have adverse impacts on the capacity of the commuter car park and on street parking. I am satisfied that the difficulties with accommodating adequate resident and visitor car parking on-site and the impact that this lack of supply will have off- site, are factors that indicate that the proposal is an over-development of the Site. [88] In the absence of the provision of car parking spaces for visitors and accepting the impact that this absence will have on the on street parking and the commuter car park, I am not satisfied that the proposal provides an adequate number of carpark spaces that cater for residents and visitors. Nor am I satisfied that it provides safe, convenient and functional on-site parking that meets user needs. Having regard to the matters identified in the Specific Outcome S1(1)(b) I am not satisfied that the off street car parking proposed is sufficient. Nor am I satisfied that the Appellant has demonstrated that the Development Application meets Specific Outcomes S8(1)(a) and (b) of the 72 Ex. 18. -- 24 of 42 -- 25 Apartment Building Code and Specific Outcome S1(1)(b) of the Access and Parking Code. I am not satisfied that the Access and Parking Code Overall Outcome (2)(a)(iii) is met. [89] Mr Crank’s view was that the shortfall in visitor parking could be accommodated through the development of Lot 1, pursuant to the terms of the Development Agreement. He understood that these additional car parks would be provided as dedicated commuter car parks and that while the Development Agreement allowed for some level of joint parking across the uses on the site it did not allow for the sharing of car parking on Lot 1.73 [90] Lot 1 is outside the control of the body corporate. Even if the Lot 1 car park is developed with approximately 20 car parks that may be used by other than commuters, Mr Pekol’s opinion is that the latent demand for commuter car parking is such that that the vast majority of this additional car parking will be used by commuters74 and accordingly will not be available for visitors. Mr Crank accepted that there is a real demand by the community for the park and ride facility proposed on Lot 1.75 I am not satisfied that these spaces will not be utilised by commuters. [91] Accordingly, I am not satisfied that it resolves the car parking issue. The on street parking issue [92] The Planning Scheme’s Access and Parking Code Specific Outcome S3.1(1)(g) requires that “Driveways are located having regard to the following - maintaining on- street parking”.76 Specific Outcome S3.1(2) requires that “the maximum number of driveways accessing a lot or premises is one, unless it can be shown that multiple driveways will improve ingress/egress, internal traffic operation, and pedestrian safety.”77 [93] It was common ground that the establishment of a second driveway and cross-over specifically for the residential use will result in the loss of two on street short duration 73 T2-9, ll 1 – 6. 74 T2-64, l 24 - 42. 75 T2-25, l 46. 76 Ex. 7, CEO Certificate Planning Scheme Extracts, p94. 77 Ibid p95. -- 25 of 42 -- 26 car parking spaces in Harbourview Court and that on street parking is highly utilised for dropping off and picking up railway patrons.78 [94] Mr Crank proposed that these losses could be resolved by the extension of line marking on Harbourview Court either side of the driveway to the townhouse development. This is land not within the control of the Appellant but is part of the road reserve and is presently marked as “no standing”. [95] He accepted that this area, although not signed as short-term parking spaces, was already being used in this manner.79 This suggests that allocating this area to short term parking would not address the issue. [96] Mr Crank considered that a solution utilising a single crossover with an internal ramp to the upper level could be delivered in an appropriate manner.80 However, while he had not undertaken a detailed analysis, he did not consider that it would necessarily provide a superior outcome.81 His preference was to keep the resident’s vehicle movements separate from the commuters’ movements. [97] Mr Pekol’s evidence was that there were inherent benefits to the use of only one driveway and that a single crossover has ample capacity to accommodate the traffic generated by the development although it transfers some conflict points internally82. He said a second driveway was not justified in terms of traffic operations. He opined that Mr Crank’s solution to make up for the loss of the two kerb side drop off/pick up spaces is fragmented reducing its efficiency, and the northern location is likely to be too short to accommodate a car.83 [98] The additional kiss and ride parking proposed by the Appellant in Harbourview Court is not the Appellant’s to give. If Council does not re-allocate these areas, then the loss cannot be accommodated in another manner.84 [99] The Appellant proposes two driveways. Accordingly, the Development Application does not locate the driveways to maintain on street car parking. I am not satisfied 78 Ex. 13, Individual report of Mr Crank, [27]; Ex. 16, Mr Pekol’s Statement, [39]. 79 T2-30, l 5-7. 80 T2-32, l 24 – 31. 81 T2-32, l 46 – T2-33, l 5. 82 T2-38, l 44. 83 Ex. 16, Mr Pekol’s Statement, [39]. 84 T2-31, l 29. -- 26 of 42 -- 27 that the Appellant has established that two driveways will improve ingress/egress, internal traffic operation and pedestrian safety. I am not satisfied that Specific Outcomes S3.1(2) and 3.1(1)(g) are met. As it has been raised in the issues in dispute, I observe that I am also not satisfied that the Access and Parking Code Overall Outcome (2)(a)(ii) is met. Circulation issue and service vehicle issue [100] The Access and Parking Code Overall Outcome (2)(a)(v) requires the provision of manoeuvring areas that facilitate clear and safe internal onsite vehicle movements. Specific Outcomes S7.1(1)(a) and (e) require vehicle parking areas to be designed to provide a clear internal movement hierarchy, and to ensure vehicles do not reverse into areas of high pedestrian activity.85 RCP contains essentially identical requirements.86 [101] The Council appropriately conceded that the circulation and service vehicle issues did not warrant refusal of the Development Application, but tended to reinforce that the proposal was an over-development of the Site, and went to the exercise of discretion.87 [102] Mr Crank considered that both issues could be resolved by the completion of the anticipated development on Lot 1.88 Further, both engineers acknowledged that redesign could resolve these issues without reliance upon Lot 1.89 [103] Mr Crank proposed alternate solutions to permit two-way circulation in the car park.90 The first proposed solution was utilisation of turn around bays at the western part of the ground floor parking area. The second solution was the provision of single direction movement around the parking area. [104] In Mr Pekol’s opinion, even with these changes, the proposal would be inconsistent with the Planning Scheme requirements because: 85 Ex. 7, CEO Certificate Planning Scheme Extracts, p 98. 86 City Plan Transport, Servicing, Access and Parking Code Overall Outcome (2)(c) and Performance Outcome PO9(1) and (6), Ex. 8, RCP Extracts, pp 45, 48. 87 T1-23, ll 40-45. 88 Ex. 13, Mr Crank’s Statement of Evidence, [29], [36]. 89 Mr Pekol, T2-40, ll 10 – 12; Ex. 12, Traffic JER, [4.3], [4.4]; Ex. 13 Mr Crank’s Statement of Evidence, [34], [37]. 90 Ex. 13, Mr Crank’s Individual Statement, pp15 – 18. -- 27 of 42 -- 28 (a) cars circulating around the western end of the commuter car park will encroach onto the wrong side of the road, demonstrated by his drawing in Appendix F; (b) as there is not a separate pedestrian entry from Harbourview Court to the commuter car park, pedestrians will have to share the driveway with vehicles increasing the safety hazard to pedestrians; and (c) the amendment does not address the narrow north-south aisle on the Level 1 parking area.91 [105] Mr Crank’s evidence was that waste facilities would be required to attend the site four times a week,92 that each collection would require approximately 30 minutes,93 and that the waste collection vehicle would not utilise a dedicated service bay but stand in the aisle adjoining the bins.94 He had not undertaken an analysis to demonstrate that passenger vehicles could pass the waste vehicle when it was standing.95 [106] Mr Crank acknowledged the appropriateness of dedicated waste collection bays.96 [107] The failure to provide a dedicated waste vehicle standing bay is inconsistent with the Apartment Building Code’s Specific Outcome S8(1)(e) and the Access and Parking Code Specific Outcome S8(1)(f)(i), (iii) and (vi). As it has been raised in the issues in dispute, I also observe that I am not satisfied that the Access and Parking Code Overall Outcome (2)(a)(v) is met. [108] I accept that the circulation issue and the service vehicle refuse issue do not warrant refusal of the Development Application. [109] The Appellant’s primary solution to the circulation and service vehicle issues is the development of Lot 1. I accept that these issues are likely to be able to be resolved by a redesign incorporating Lot 1 pursuant to the Development Agreement. Consideration of the RCP [110] The relevant provisions in the RCP’s Transport, Servicing, Access and Parking Code Overall Outcome (2)(c) and Performance Outcome PO8(2) are essentially identical 91 Ex. 16, Mr Pekol’s Statement, [43]. 92 Ex. 12, Traffic JER, p10, ll 8 – 10. 93 Mr Crank, T2-35, ll 10 – 14. 94 Ex. 13, Mr Crank’s Statement of Evidence, Appendix D; see also Mr Crank, T2-35, ll 6 – 8. 95 T2- 36, ll 2 – 22. 96 T2-35, ll 31 – 36. -- 28 of 42 -- 29 to the Planning Scheme provisions. The RCP contains similar constraints, with Transport, Servicing, Access and Parking Code PO1(5) requiring “Driveways are located and designed having regard to… minimising loss of on-street parking opportunities” and PO3(5) which requires “Development maintains or improves the safe and efficient operation of transport networks having regard to (among other things)… the loss or increase of on-street parking”.97 The principal difference is the quantitative parking rates set out in Table 9.3.5.3.2 “Minimum Onsite Vehicle Parking Requirements” for resident and visitor parking spaces for the accommodation unit aspect of the development. [111] It was common ground that under the RCP the proposed development requires a minimum of 206 car parking spaces. [112] Mr Crank accepted that the car parking proposed fell materially short of strict compliance with an acceptable outcome of the RCP.98 Is this a mixed-use development consistent with the Planning Scheme? [113] “Mixed use” is not a use defined in the Planning Scheme. It is an administrative term defined in the Planning Scheme as: “a use of premises that integrates residential activities and tourist accommodation with commercial, retail or industry activities where a minimum of 30 per cent of the total gross floor area is used for residential purposes.”99 Should comfort be derived from the preliminary approval and development permit? [114] The Appellant suggested that the Court should derive comfort from the history of the Council decisions on this Development Application as indicating that the mix of uses is acceptable. It said that the Council has already considered whether the development is a mixed-use development and by deciding to issue each of the preliminary approval and the development permit has confirmed that the mix of uses proposed by the development is appropriate. [115] The Appellant acknowledged the preliminary approval is not in effect but submitted that it would be strange if the Court did not give consideration to it in the context of the issues concerning appropriate types of use on the Site. 97 Ex. 8, RCP Extracts, p46. 98 T2-25, ll 9 – 10. 99 Ex. 7, CEO Certificate Planning Scheme Extracts, p147, Schedule – Dictionary administrative terms. -- 29 of 42 -- 30 [116] The Council disagreed, saying that these prior decisions related to differently designed developments and that in any event, as this is a hearing de novo, the Council’s prior decision was not relevant to the Court’s consideration. [117] I accept that by granting the preliminary approval, the Council accepted the concept of a mixed-use development on the Site provided certain requirements were met. However, it did not approve a form of design for the use. No drawings were approved. By not approving drawings it might be suggested that the Council was not satisfied that the design shown in the plans which accompanied the Development Application was a mixed-use development. [118] Before the Council granted the development permit the Appellant changed the Development Application, adding a parcel of land not originally included in the Development Application. Accordingly, the decision by the Council to grant the development permit was for a differently designed development to that which is now to be assessed. [119] Since these decisions were made and after the appeal was commenced, the Appellant changed the Development Application again and the appeal proceeded on the basis of the changed proposal.100 [120] I do not accept the Appellant’s submission for the reasons that follow. [121] First, I respectfully agree with Rackemann DCJ’s observations in Drywound Pty Ltd v Lockyer Valley Regional Council & Ors101 that the Council’s prior decisions about the Development Application are not relevant to this Court’s consideration. As this is a hearing anew, the question is not whether the Council’s decision was correct but for the Court to make a decision based on the evidence before it.102 [122] Second, the decisions by the Council to grant a preliminary approval and a development permit related to differently designed developments than that presently before the Court. The prior decisions of the Council do not therefore provide useful guidance to the Court in determining whether a differently designed development is a mixed-use development. Nor do I accept that the Council’s prior decisions 100 Order of Everson DCJ made 6 May 2022, Court Document 23. 101 [2017] QPELR 274 [13]. 102 Ibid. -- 30 of 42 -- 31 demonstrate that the Council has determined that the mix of uses now proposed comprise a mixed use. [123] Mr Skoien relied upon the decision in Waterman & Ors v Logan City Council & Anor103 as authority that absent explanation the Council should not now be allowed to launch a collateral attack on its prior decisions on the Development Application which are supportive of development approval for the mix of uses being granted. That decision is distinguishable in the present circumstances as the Council’s prior decisions were in respect of differently designed proposals. What was the evidence? [124] Mr Burmeister’s evidence was premised, to a large extent, upon his opinion that the Council had previously considered and approved the mix of uses and activation of the frontages by granting the preliminary approval and the development permit.104 For the reasons discussed above I consider this to be a flawed approach. [125] Additional factors which influenced Mr Burmeister’s opinions were: (a) the small area of Lot 2 available for the development; (b) that if Queensland Rail sought to develop the Site it would not be required to comply with the Planning Scheme;105 and (c) that the Site’s primary use is as a commuter car park for the railway station.106 [126] These matters lead Mr Burmeister to the view that Queensland Rail has determined that it is not in the best interests of the patrons of the railway station to develop the Site as envisaged by the Planning Scheme and so instead the assessment should be restricted to the extent of the development allowed by Queensland Rail as the owner of the Site.107 [127] That another person may develop the Site without complying with the Planning Scheme requirements is not a matter relevant to my consideration. These 103 [2018] QPLER 46. 104 T3-20, ll 27 – 28; Ex. 11 Mr Burmeister’s individual report, ss 2, 3. 105 T3-13, ll 19. 106 T3-11, ll 5 – 6. 107 Ex. 10, Town Planners’ JER, [5.46]. -- 31 of 42 -- 32 considerations by Mr Burmeister are not founded in the assessment benchmarks. Accordingly, they are not relevant to the assessment of the Development Application. [128] By allowing these factors to influence his opinion, Mr Burmeister has fallen into error. For these reasons, to the extent there is a difference of opinion between Ms Burke, the town planner engaged by the Council, and Mr Burmeister, I prefer the evidence of Ms Burke. [129] The experts agreed that the Development Application technically meets the definition of mixed use in the Planning Scheme.108 However, Ms Burke opined that it does not achieve the intent of the Planning Scheme. [130] Ms Burke said that the development proposed was physically separate, with different architectural designs, and scale, with a railway station in between – that there was no real relationship of connectivity between the two aspects of the development which in her view impacted on its being “mixed use”.109 She considered that the Development Application did not achieve a mixed use on Lot 2 as it does not integrate the residential and tourist accommodation components with other commercial and retail elements that generate a high level of activity as envisaged by the Planning Scheme.110 She opined that the inclusion of commercial or retail uses as part of the development and in particular on the Lot 2 ground floor, would provide for integrated mixed use and activation. [131] Mr Burmeister agreed that having regard to the physical dislocation, the different designs, the differences in scale of the development forms and the location of the railway station between them, that the development on Lot 2 and the development on Lot 3 were not connected or integrated.111 He accepted that the two crossovers, the electrical sub-station and the lobby entrance on Lot 2 meant that the development on that lot does not meet the active frontage and mixed use outcomes sought by the Planning Scheme on Lot 2112 but maintained that the café assisted in achieving a mixed use outcome for the proposal.113 He opined that while the Planning Scheme seeks to achieve various retail and other uses on the Site, that is not strictly mixed use 108 Ibid [7.3]. 109 Ibid [5.53]. 110 Ibid [5.56]. 111 T3-6, ll 5 – 30. 112 T3-12, ll 14 – 17. 113 T3-4, l 25. -- 32 of 42 -- 33 as defined. I do not agree. The definition of mixed use envisages integration of residential activities and tourist accommodation with commercial, retail or industry activities. That is not provided by the Development Application because the shop lacks integration in a physical and a design sense with the development on Lot 2. [132] I am not satisfied that the proposed development is integrated as envisaged by the Planning Scheme. Further, I am not satisfied that it offers residential and tourist accommodation designed and integrated as part of a mixed-use development, nor that it encourages a mixed-use development. [133] Accordingly, I am not satisfied that Specific Outcomes S1.3 (in so far as it requires an integrated, mixed-use development) and S1.5(3) are met. As they have been raised in the issues in dispute, I am not satisfied that the Major Centre Zone Code Overall Outcomes (3)(a)(ii)(c) and (3)(a)(iv)(k) are met. Does the proposal achieve an active frontage? [134] “Active frontage’ is not defined in the Planning Scheme. The experts adopted a definition for the purposes of their opinions in the joint expert report: “An active frontage is a concentration of activity or goings-on at the front of a site or building, adjoining a public area such as a street or park. Active frontages make a public space interesting and encourages people to linger and stay. To be an active frontage, many elements must be combined to ensure the space is interesting, inviting, walkable and safe. A key component to active frontages is the use itself, activities such as shops, small offices and cafes promote the most active street fronts. Residential buildings can also activate the street by providing a clear address, direct access from the street and direct overlook over the street. Generally, buildings in centres, where active frontages are highly desirable, should be built to align with the street as a way of reinforcing the urban character and improving pedestrian amenity and activity at the street level. In some cases, buildings could be set back from the street alignment to create a square or a forecourt or to provide outdoor dining. Where an existing building is being utilised it is important to orientate the use or activity towards the street and/or public space to contribute to the level of activity in the public space. This can be achieved by ensuring the access is clear and welcoming with direct footpaths, landscaping, outdoor dining, and even incorporate streetscape elements such as artwork and street furniture.”114 114 Ex. 10, Town Planners’ JER, [5.14]. -- 33 of 42 -- 34 [135] Ms Burke considered that an active frontage is required for both lots.115 She was initially critical of the development as it related to Lot 2 saying that it did not contribute to the provision of an active frontage at the ground level.116 She later accepted that the ground floor lobby to the units provides some level of activation and that the development will improve on the present activation,117 but that activation is reliant upon the provision of a mix of uses. [136] She acknowledged that the façade treatment in Harbourview Court provides a relationship with the street.118 [137] Ms Burke opined that the proposal does not meet the agreed definition of active frontage because it fails to: (a) make the street interesting or encourage people to linger and stay;119 (b) provide activities on the ground floor that provide opportunities for the most active frontages such as shops, small offices, restaurants and cafes;120 and (c) provide opportunities for outdoor dining or engaging shopfronts that might promote better pedestrian activity and amenity at the street/ground level.121 [138] Mr Burmeister, in considering only Lot 2, did not suggest that the development meets the active frontage outcome sought to be achieved by the Planning Scheme,122 but said that the nature of the ground level available to the development prevented it providing an activated frontage at ground level.123 [139] The town planning experts agreed that the café activates the frontage of Lot 3.124 Mr Burmeister observed that the pathway between the café and the rail station provides linkages which encourage pedestrian movement, 125 which I accept. Further, I accept that the design provides physical connections between buildings and public places due to the development’s proximity to the rail station. 115 T3-64, l 10. 116 Ex. 10, Town Planners’ JER, [5.40]. 117 T3-52, l 10. 118 T3-62. 119 Ex. 15, Ms Burke’s Individual Report, p11 [21]; T3-25, ll 10-15. 120 Ex. 15, Ms Burke’s Individual Report, p11 [21]; T3-25, ll 5-15. 121 Ex. 10, Town Planners’ JER, [5.39]; T3-43, ll 10-15. 122 T3-12, ll 9 – 19. 123 Ex. 10 Town Planners’ JER, [5.17]. 124 Ex. 10, Town Planners JER, [5.19], [5.43]. 125 Ibid [5.26]. -- 34 of 42 -- 35 [140] However, that the development achieves an active frontage on Lot 3 is not sufficient. The Planning Scheme also seeks the provision of active frontage on Lot 2. The two driveways in Lot 2 are the antithesis of an active frontage, conflicting with pedestrian movement and breaking up any visual interaction. The screened electrical substation does not play a role in activating this frontage. Nor does it ensure high levels of physical and visual interaction. The failure of the development to provide a mix of uses adversely impacts its ability to activate the Lot 2 frontage and to provide a high level of physical and visual interaction and pedestrian access at ground level. [141] For these reasons I am not satisfied that the proposal provides design elements that ensure high levels of physical and visual interaction and access with adjoining pedestrian areas at ground level. Nor am I satisfied that activity generating uses are provided on the ground level interacting with the adjacent public space. Accordingly, the Appellant has failed to demonstrate compliance with Major Centre Zone Code Specific Outcomes S2.7(1)(b), S2.5(2)(d), S1.3 (in so far as it concerns active frontages) and S1.5(3). As it has been raised in the issues in dispute, I observe that I am not satisfied that Overall Outcome (3)(a)(ii)(c) (in so far as it concerns active frontages) is met. I am satisfied that the Development Application meets Major Centre Zone Code Specific Outcome S2.5(2)(f). Consideration of the RCP [142] Under the RCP the Site is in the Principal Centre Zone. Within the Principal Centre Zone Code – Cleveland Concept Plan it is identified as one of four Gateway Sites and has an active frontage on its eastern and south-eastern boundary.126 [143] The Principal Centre Zone Code of the RCP relevantly provides: (a) Overall Outcomes (2)(b) and (g): “The purpose of the code will be achieved through the following outcomes: … (b) vibrant, mixed-use environments are created, with high levels of day and night time activity; … 126 Ex. 10, Town Planners’ JER, [4.7]. -- 35 of 42 -- 36 (g) built form and streetscaping in principal centres strengthen the identity of the Redlands as a sub-tropical, bayside city, and create attractive and engaging streetscapes through scale, building elements, awnings and extensive street planting. …”127 (b) Performance Outcomes PO4 and PO13: “PO4 Onstreets and accessways identified as active frontages on…Cleveland Principal Centre…, ground floor uses contribute to the vitality and vibrancy of the city’s public domain and include a mix of small scale shops, cafes and restaurants, and other uses which generate a high level of pedestrian traffic. PO13 Buildings are designed to provide high levels of physical and visual interaction and access between internal and external spaces at ground level, having regard to: 1. Maximising the extent of transparent and operable elements such as large window openings, sliding doors, window seating; 2. Providing views into any semi-public internal spaces such as arcades, community courtyards and gardens; 3. Including usable outdoor/semi-outdoor spaces that support outdoor lifestyles and engage with the public realm; and 4. Minimising non-active elements such as vehicle access, fire egress, plant and building services along the frontage.”128 [144] Mr Burmeister opined that there is very little difference between the Planning Scheme and the RCP with respect to the matters in issue. He opined that as the RCP does not contain a definition of “mixed use” that aspect of the development might be given less weight. He considers the building design is consistent with the subtropical theme envisaged by the RCP. [145] Miss Burke agreed that there is general consistency in the policy intent for the Site across the Planning Scheme and the RCP in that both schemes intend that the Site achieve an active frontage at the ground floor level through development design, including through the provision of a mix of uses which contribute to a high level of pedestrian activity/interaction.129 127 Ex. 8, RCP Extracts, p31. 128 Ex. 8, RCP Extracts, pp34 – 35. 129 Ex. 10, Town Planners’ JER, [5.10], [5.11], [5.12]. -- 36 of 42 -- 37 [146] She opined that the RCP intends for the Site to be developed for vibrant, mixed use environments with high levels of day and night time activity.130 Ms Burke considered that the Development Application does not comply with the RCP as it does not contribute to the provision of an active frontage at ground level for the primary development proposed on Lot 2. In her view, it does not satisfy PO13 of the Principal Centre Zone Code of the RCP as it fails to minimise non-active elements such as vehicle access and plant along the frontage nor does it maximise the outlook to the street by providing perusable spaces that engage directly with the public realm. [147] That the RCP maintains the requirement for mixed-use development with activated ground floor frontages inclines me to give material weight to the RCP provisions. The RCP indicates a clear intention for the Site to be developed for vibrant, mixed- use environments with high levels of day and night time activity.131 It recognises that the active frontage is to be achieved only along Harbourview Court and around the edge of Lot 3 as the bus interchange is now located on the Shore Street West frontage. Can compliance with the benchmarks be achieved by the imposition of development conditions? [148] Pursuant to s 60(2)(d) of the Planning Act, to the extent the development does not comply with some or all of the assessment benchmarks, the Court may refuse the application only if compliance cannot be achieved by imposing development conditions. [149] The Appellant proposed that the Development Application should be approved subject to the imposition of conditions to require: (a) no use of the commuter car park by residents of the residential units; (b) execution of a building management statement providing that residents not use the commuter car park; (c) allowing use of the car park by residents’ visitors and the owner/manager of the café;132 and 130 Ex. 10, Town Planners’ JER, [5.54]. 131 Ex. 8, RCP Extracts, p31, Principal Centre Zone Code Overall Outcome (2)(b). 132 Appellant’s Outline of Submissions dated 22 August 2022, [3.4(a), (b), (c)]. -- 37 of 42 -- 38 (d) that the development not proceed until completion of the Lot 1 development pursuant to the Development Application. [150] It maintained that the development of Lot 1 pursuant to the Development Agreement before the use commences resolved all traffic issues except the loss of two drop and go spaces in Harbourview Crescent. [151] I am satisfied that the non-compliances cannot be remedied by the imposition of conditions. That is because the non-compliances are not limited to traffic issues but also relate to the mix of uses and the activation of the frontage. Should the proposed development be approved in the exercise of the Court’s discretion? [152] For the reasons set out above I am satisfied that the Development Application does not satisfy the benchmarks. [153] The key principles emerging from the authorities relevant to the exercise of discretion in a code assessable application are: (a) the discretion is expressed as permissive and in broad terms; (b) however, it is bounded by the assessment carried out pursuant to section 45 of the Planning Act;133 and (c) not every non-compliance will warrant refusal.134 [154] It is necessary to determine the weight to be given to the RCP.135 I consider that material weight should be given the RCP for the following reasons. [155] First, having come into effect in 2018, it better reflects contemporary parking requirements. Mr Crank accepted that these figures were a more contemporary approach from the Council.136 [156] Second, the RCP provides differing requirements for differing locations and numbers of bedrooms compared with the Planning Scheme provisions which provide one space per dwelling regardless of location or number of bedrooms. Mr Crank accepted that this type of approach made more sense.137 133 Klinkert v Brisbane City Council [2018] QPELR 941, [102]. 134 Andema Pty Ltd v Noosa Shire Council [2021] QPELR 783, [9]. 135 Planning Act, s 45(8). 136 T2-16, ll 18 - 31. 137 T2-19, ll 29 – 35. -- 38 of 42 -- 39 [157] Third, the parking provisions are finely grained for the Site, which was accepted by Mr Crank.138 [158] Fourth, the adoption of RCP indicates that the Council has elected not to adopt the “maximum parking rate” philosophy advanced in the QGTOD guideline, Table 7. Instead, it applied a minimum parking rate. [159] Fifth, the RCP maintains the requirement for mixed use development with activated ground floor frontages. [160] Sixth, the delivery of active street frontages is finer grained with retail uses envisaged on the ground floor of Lot 2 fronting Harbourview Court. The RCP makes it more important that the limited frontage available is activated. [161] Even if I was to accept that the traffic issues except the loss of the on street car parking, can be resolved by the conditions proposed by the Appellant, in the exercise of my discretion I would not approve the Development Application because: (a) it fails to provide active frontages; and (b) it fails to provide the mixed use envisaged by the Planning Scheme. [162] For these reasons, on balance, I am satisfied that the exercise of discretion favours refusal of the Development Application. What decision can the court make? [163] It is necessary to consider the appropriate orders to be made. [164] The Council said that the Court should not be satisfied that the Development Application is compliant, should not approve the Development Application and not grant the development permit. In determining whether to refuse the Development Application or confirm the Council’s decision to give a preliminary approval it maintained that the Court should refuse the Development Application, rather than dismissing the appeal. [165] The Appellant took the position the Development Application should be approved subject to conditions and a development permit issued. On the Appellant’s own case, 138 T2-17, ll 39 – 40. -- 39 of 42 -- 40 if successful, it must seek an order setting aside the decision of the Council to grant the preliminary approval to enable the changed Development Application to proceed. However, it said that that if the Court determined not to replace the Preliminary Approval with a development permit, that it would not set aside the Council’s decision to issue a preliminary approval but would order that the appeal be dismissed.139 This would have the effect that the Preliminary Approval for the unchanged application is the approval. [166] The Appellant accepted that the Court had jurisdiction to make such a decision but said it would be inappropriate to do so in this case. Its reasons for this submission were:140 (a) First, that the Council had not raised as an issue in the proceeding that the Preliminary Approval should be set aside; (b) Second, that such an issue would amount to a collateral attack on the Council’s own decision. I have dealt with this submission above; (c) Third, that the circumstances of the case did not warrant such a decision, as Ms Burke did not oppose the mix of uses per se, but the form of the mix of uses; and (d) Fourth, the Court should not set aside the Preliminary Approval, given the nature of the proceeding and the previous decisions of the Council. It said the Council’s most recent decision of June 2021 involved the rejection of the request to issue a development permit, which necessarily involved maintenance of the Preliminary Approval. [167] The Appellant said that if the appeal had never been brought then the Preliminary Approval would still be in force. If the Appellant discontinued the appeal, then the Preliminary Approval would still be in force. If the Court dismissed the appeal, then the Preliminary Approval would still be in force. Further, it said that in any one of these three eventualities the Appellant could make a fresh Development Application and rely upon the existence of the Preliminary Approval in support of the proposed mix of uses.141 139 Appellant’s Submissions dated 22 November 2022, paragraph 3.11. 140 Appellant’s Submissions paragraphs 3.5 to 3.9. 141 Appellant’s Submissions dated 22 November 2022, [3.10]. -- 40 of 42 -- 41 [168] However, that is not the action that the Appellant has taken. If the Appellant wished to rely upon the Preliminary Approval, it could have lodged a Development Application. It did not do so. Rather, the Appellant appealed against the Council’s decision to impose conditions on the Preliminary Approval. [169] Since commencing the appeal the Appellant has changed the Development Application, and orders were made that the appeal proceed on the basis of the changed Development Application.142 It is the changed Development Application that is before the Court and which the Appellant seeks to have approved. [170] The Appellant denied it was an implied admission in an appeal against the giving of an approval that the approval should be set aside where a minor change is made to the development application during the appeal process. It contended that absent any express challenge to the preliminary approval by the Council, there is no warrant to set aside the decision to grant that approval. [171] I disagree. By changing the application sought to be approved, the Appellant implicitly acknowledged that the development described in the Preliminary Approval is no longer sought. It cannot be that when a party makes a minor change, the Court then has before it two proposals. [172] Further, that was not the effect of the order made on the minor change application. The Court is required to assess and decide the development application.143 By changing the Development Application on 6 May 2022 the proposal the subject of the Preliminary Approval is no longer the proposal before the Court. Pursuant to the order of the Court, the appeal proceeded on the basis of the Development Application as changed. The Appellant cannot now revert to the form of development the subject of the Preliminary Approval. [173] In any event, there is no evidence before the Court in relation to the proposal the subject of the Preliminary Approval. The Appellant has not established that the form of development the subject of the Preliminary Approval should be approved. I am not satisfied that it meets the benchmarks. 142 Order of His Honour Judge Everson made 6 May 2022, Court document 23. 143 PECA s 46(2); Planning Act ss 45(3), 60(2). -- 41 of 42 -- 42 Conclusion [174] For the above reasons, the decision of the Council to approve the Development Application is set aside and replaced with the decision that the Development Application is refused. -- 42 of 42 --