CSR SPV 1 Pty Ltd & Anor v Brisbane City Council [2021] QPEC 35 [2022] QPELR 784

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: CSR SPV 1 Pty Ltd & Anor v Brisbane City Council [2021] QPEC 35 PARTIES: CSR SPV 1 PTY LTD ACN 632 457 633 AND CSR SPV 2 PTY LTD ACN 632 457 651 (appellants) v BRISBANE CITY COUNCIL (respondent) FILE NO: 169 of 2021 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 14 July 2021 DELIVERED AT: Brisbane HEARING DATE: 24 – 25 June 2021 JUDGE: Everson DCJ ORDER: Appeal allowed subject to the imposition of lawful conditions CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – application for reconfiguring a lot (1 lot into 3 lots) – whether proposed lots too narrow LEGISLATION: Planning Act 2016 (Qld) ss 45 and 60 Planning and Environment Court Act 2016 (Qld) ss 43, 45 and 46 Building Act 1975 (Qld) s 33 CASES: COUNSEL: WDJ Macintosh for the appellants S Hedge for the respondent SOLICITORS: HWL Ebsworth Lawyers for the appellants City Legal for the respondent -- 1 of 9 -- 2 Introduction [1] This is an appeal against the decision of the respondent to refuse an application for a Development Permit for Reconfiguring a Lot (1 Lot into 3 Lots) on land located at 7 Pendine Street, Gaythorne (“the site”). [2] Essentially, it is the contention of the respondent that the proposed lots are of insufficient width. The site and the surrounding area [3] The site is a single lot with an area of approximately 1,454m². It is regular in shape with a single frontage to Pendine Street of just over 30 metres.1 Pendine Street is a short residential street that was constructed in the 1960’s.2 Only a pedestrian pathway existed in this location in 1946.3 The only other land on the southern side of Pendine Street is occupied by houses which have their primary frontage to Bellevue Avenue to the west and Lade Street to the east. The dwelling primarily fronting Lade Street is a pre-1946 house.4 On the side of Pendine Street opposite the site is another pre-1946 house primarily fronting Lade Street, a modern small lot house and a brick multiple dwelling which dominates this side of the street.5 [4] The land in the immediate vicinity of the proposed development is zoned Character residential, Low density residential, Low-medium density residential (two storey mixed) and Low-medium density residential (two or three storey mixed).6 There are a number of lots in the vicinity of the site in the Low density residential zone with frontages of approximately 10 metres, including three with rear boundaries adjoining the site.7 The land in the Character residential zone is scattered throughout the vicinity 1 Exhibit 4.01, p 5. 2 T1-77, ll 15-16. 3 Exhibit 4.02, p 5. 4 Exhibit 4.01, pp 5-6. 5 Ibid. 6 Exhibit 2.06. 7 Exhibit 4.01, pp 41 and 49. -- 2 of 9 -- 3 of the site in circumstances where the zoning simply follows the Traditional building character overlay, covering land containing pre-1946 dwelling houses.8 The site was created by a previous reconfiguration of a larger area approved on 28 April 2020, from the rear parts of previous allotments.9 Consequentially, it is zoned Character residential at the front and Low density residential at the rear.10 Approximately two- thirds of the site is contained within the latter zone. The Character residential zoning has arisen as a consequence of it originally applying to the entirety of that former lot which once contained the pre-1946 dwelling house to the east of the site. [5] There are a number of pre-1946 dwelling houses located on Character residential lots in the vicinity of the site. The majority of these lots have a frontage width of 15 metres or greater, but several do not.11 Of those which do not, the dwelling houses exhibiting traditional building character situated at 128 and 130 Bellevue Avenue clearly demonstrate a distinctive subtropical character associated with a traditional Queenslander house in Brisbane in a setting of established green landscaping.12 The proposed development [6] The proposed development involves the creation of three vacant residential lots. The westernmost lot is to be 492m 2 and the adjoining lots are to each be 481m 2 . They will each have a frontage of approximately 10 metres in width to Pendine Street.13 The statutory assessment framework [7] Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is by way of hearing anew,14 and the appellant must establish that the appeal should be 8 Exhibit 4.02, pp 4-5. 9 Exhibit 4.01, p 8 and 49. 10 Ibid p 41. 11 Ibid p 42. 12 Exhibit 4.02, pp 7 and 8. 13 Ibid p 29. 14 s 43. -- 3 of 9 -- 4 upheld.15 Section 46 of the PECA addresses the nature of an appeal and relevantly provides: “(2) The Planning Act, section 45 applies to the P&E Court’s decision on the appeal as if – (a) the P&E Court were the assessment manager for the development application; and (b) the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.” [8] As the proposed development was code assessable, section 45 of the Planning Act 2016 (“PA”) states: “(3) A code assessment is an assessment that 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 regulation for this paragraph. … (7) The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made. (8) However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to— (a) if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document;” [9] Thereafter, section 60 of the PA relevantly states: “(2) To the extent the application involves development that requires code assessment … the assessment manager, after carrying out the assessment— 15 Ibid s 45(1). -- 4 of 9 -- 5 (a) must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and (b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and … (c) may impose development conditions on an approval; and (d) may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.” [10] The only relevant assessment benchmarks arise pursuant to the respondent’s planning scheme, City Plan 2014 (“the planning scheme”). At the time the development application for the proposed development was properly made, version 19 was in effect. Relevantly, it stated in section 5.3.3(4)(c) that code assessable development “that complies with the purpose, overall outcomes and the performance outcomes or acceptable outcomes of the code complies with the code.”16 [11] The following provisions of the Character residential zone code are identified as relevant: “5. Development form overall outcomes are: a. Development occurs on an appropriately sized and configured lot and is of a form and scale that reinforces a distinctive subtropical character of low rise buildings set in green landscaped areas. … d. Development provides that a new building or extension of a building reflects and complements the city’s traditional building character of housing built in 1946 or before prevalent within the Traditional building character overlay in accordance with the Traditional building character (design) overlay code. … 6. Character zone precinct overall outcomes are: … 16 Exhibit 3.01, pp 52-53. -- 5 of 9 -- 6 b. Development provides that a new dwelling house: i. is 1 or 2 storeys in height; ii. is located on an appropriately sized and configured vacant lot; iii. is compatible in scale and design with existing houses built in 1946 or before; iv. reinforces the traditional building character of the Character zone precinct. … d. Development provides for a minimum lot size of 450m 2 to maintain a block pattern that accommodates traditional backyards and large trees.”17 [12] The following parts of the Subdivision code are also identified as relevant: “2. The purpose of the code will be achieved through the following overall outcomes: … b. Development for reconfiguring a lot creates a lot of an appropriate size, dimensions and arrangement consistent with the outcomes of the zones, zone precincts, neighbourhood plans and overlays which apply to the site. c. Development for reconfiguring a lot provides lots and an arrangement of lots for lawful uses consistent with the uses, zones, zone precincts, neighbourhood plans and overlays which apply to the site and that meet the provisions of the planning scheme and responds to the patterns of development in the locality.”18 [13] Thereafter the following performance outcomes are identified as relevant: “PO1 Development creates a lot with dimensions which enable lawful uses appropriate to the intended use and consistent with zones, zone precincts, neighbourhood plans and overlays which apply to the site and are intended for the locality under the planning scheme. … PO9 Development ensures that a subdivision involving land included in 2 or more zones, zone precincts, a neighbourhood plan precinct or overlay sub-categories provides for different lot design requirements 17 Ibid pp 68-69. 18 Ibid p 99. -- 6 of 9 -- 7 which are applicable to the zones, zone precincts, neighbourhood plans and overlays and the lawful uses intended for the site and the locality.”19 [14] The planning scheme was amended by version 20 which came into effect on 30 October 2020 and added the following requirement for reconfiguring a lot in PO1 of the Subdivision code: “c. feature a useable shape able to accommodate the minimum rectangle dimension in Table 9.4.10.3.B and anticipated future development.”20 This table states that for land in the Low density residential zone and Character residential zone, the minimum lot size is to be 450m² with minimum rectangle dimensions of 14 x 20 metres and an average lot width of 15 metres. The disputed issues [15] The disputed issues may be summarised as follows: 1. Whether the proposed development provides appropriately sized and configured lots that are consistent with the outcomes intended for the site, the immediate area and the Character residential zoned land in the locality; 2. Whether the proposed lots will accommodate dwelling houses that are of an appropriate form, scale and traditional building character, will reinforce the distinctive subtropical character of low rise buildings in green landscaped areas and reinforce and complement the traditional building character of the locality; 3. What weight, if any, should be given to the amendment to the planning scheme set out above in version 20; 4. Whether discretionary matters justify approving the proposed development pursuant to section 60(2) of the PA, in the event of non-compliance with assessment benchmarks. Assessment of the proposed development [16] As a starting point, it needs to be observed that the proposed development complies with the only quantitative assessment benchmark in place at the time the development 19 Ibid pp 100-101. 20 Exhibit 3.02, p 114. -- 7 of 9 -- 8 application was properly made, namely that it provide for minimum lot sizes of 450m².21 Furthermore, it is uncontroversial that the proposed development will maintain a block pattern that accommodates traditional backyards and large trees. The focus of the respondent was on the fact that most of the lots in the vicinity of the site contained within the Character residential zone have a 15 metre wide or larger frontage. The respondent submits that when the setback requirements of the Queensland Development Code, which apply by default as a consequence of section 33 of the Building Act 1975, are taken into account, the resulting dwelling houses will not reinforce distinctive subtropical character in green landscaped areas. Further, it is submitted that any such dwelling houses will not complement the city’s traditional building character built in 1946 or earlier, as sought to be reinforced in the Character residential zone. [17] I do not accept these arguments in circumstances where the pre-1946 houses discussed above at 128 and 130 Bellevue Avenue appear to readily satisfy these assessment benchmarks with 10 metre wide frontages. Moreover, Pendine Street did not exist at the time pre-1946 houses were built with the result that there are no pre- 1946 houses with a primary frontage to it. Indeed, there is a prominent multiple dwelling directly opposite the site which has no traditional building character at all. Accordingly, the requirement in the purpose of the Subdivision code that a proposed development respond to the patterns of development in the locality is readily achieved in circumstances where in the vicinity of the proposed development there are adjoining lots to the east with frontages to Lade Street of approximately 10 metres in width in the context of a very mixed character. Moreover, any houses to be built on the proposed lots will need to comply with the performance benchmarks in the Traditional building character (design) overlay code which will apply to the front section of each lot. These provisions have the purpose of ensuring that development “reflects or strengthens traditional character and traditional building character through compatible form, scale, materials and detailing”.22 [18] When all of these matters are taken into account, I am of the view that the appellant has discharged the onus of establishing that the appeal should be upheld. On the facts before me, it cannot be said that a frontage of approximately 10 metres per lot will 21 Character residential zone code overall outcome 6d, Exhibit 3.01, p 69. 22 s 8.2.22.2.a, planning scheme, Exhibit 3.01, p 90. -- 8 of 9 -- 9 result in non-compliance with any of the identified assessment benchmarks referred to above. [19] Where the appellant has complied with the assessment benchmarks identified in the planning scheme in force at the time the development application was properly made, and taking into account the mixed character of the locality, which includes development on similarly configured lots, I am of the view that it is not appropriate to give any weight to the amendment set out above which came into effect on 1 May 2020. Conclusion [20] On the evidence before me, the proposed development satisfies the assessment benchmarks in issue in this appeal. It will provide appropriately sized and configured lots which can accommodate dwelling houses of an appropriate form, scale and traditional building character that complement the traditional building character of the locality. [21] Accordingly, the appeal will be allowed subject to the imposition of lawful conditions. -- 9 of 9 --