The case of Walters & Ors v Brisbane City Council & Anor  QPEC 3 concerned an appeal against a decision of a local government to approve an application for a material change of use for the redevelopment of an existing retirement facility. The Planning and Environment Court held that although the proposed development would exceed the relevant height limits under the planning scheme, the Court was satisfied that the proposed development was appropriate on the basis of the other relevant assessment benchmarks.
The Applicant owned and operated an existing retirement facility in the suburb of Newmarket in Brisbane's inner north. The existing retirement facility consisted of 74 independent living units which had been in place since 1990. The Applicant submitted a development application for a development permit for a material change of use to demolish the existing retirement facility and replace it with a new retirement facility containing 255 independent living units and associated facilities. The Council approved the development application with conditions. The Submitters appealed the Council's decision, alleging that the proposed development was of an unacceptable height, density, bulk and scale such that it failed to meet various assessment benchmarks under the Brisbane City Plan 2014 (City Plan) and in particular the Ashgrove-Grange district neighbourhood plan code (Neighbourhood Plan Code).
The Submitters' allegations related almost exclusively to the bulk and scale of the proposed development, arguing that the development was "too big" in the way that the development would present its frontage to the main street and adjacent park. The Submitters argued that the existing retirement facility and the proposed development were within the Low density residential zone code under the City Plan and therefore the scale of the proposed development would be inappropriate in the circumstances.
The Applicant contended that although the proposed development departed from the assessment benchmarks contained under the City Plan, in particular the Neighbourhood Plan Code, regard should be had to the current lawful use of the premises, the prospective amendments to be made to the City Plan, the need for the proposed development, and the absence of hard amenity impacts and unacceptable visual impacts, respectively. Similarly, Council took the position that despite some non-compliance with the City Plan, the proposed development was appropriate having regard to the absence of tangible impacts, the need for the proposed development, the forthcoming planning scheme amendments, and the application of sound town planning principles.
Part 6.2 of the City Plan states that a retirement facility may be accommodated within the Low density residential zone where the height of the facility is no greater than 1 or 2 storeys. Part 9.3 of the City Plan states that a development is of a height that is appropriate to the strategic and local context and meets community expectations where it consists of 2 storeys within the Low density residential zone. The Applicant conceded that by virtue of its height, the proposed development was non-compliant with the outcomes required under the City Plan. The Submitters contended that the proposed development suggested a "plain non-compliance" with the City Plan. The Planning and Environment Court rejected this allegation, stating that (at ):
"Height is but one aspect that informs the bulk and scale of development. It is the bulk and scale of the proposed development that is to be consistent with the intended form and character of the local area, not its height alone."
Density, bulk and scale
Part 9.3 of the City Plan provides that a development should be of a bulk and scale that is consistent with the intended form and character of the local area. The Submitters argued that the proposed development had a bulk and scale which was inconsistent with the receiving environment and the intentions of the overall outcomes under the City Plan. The Planning and Environment Court held that the overall outcomes under the City Plan do not prevent development which is not a low density residential use as the City Plan "specifically contemplates community uses [and] small scale services which cater for local residents" (at ).
The Court was also satisfied that the proposed development involved "a well thought out design that [achieved] the outcomes sought with respect to integration and consistency with location and street context" (at ). The Court also noted the retirement facility's ability to "support the neighbourhood structure" citing that the facility had been in place for nearly 30 years and was "part of the fabric" of the neighbourhood (at -).
Amendments to the City Plan
On 14 June 2016, Council resolved to amend the City Plan. The amendments were "intended to support the provision of aged care accommodation" by amending the Low density residential zone code under the City Plan. The Court held that despite the proposed development having failed to comply with the specific provisions of the City Plan, it was evident that the proposed development would comply with the Council's most contemporary statement of planning intent in relation to retirement facilities.
Section 31(1)(f) of the Planning Regulation 2017 relevantly states that "impact assessment must be carried out having regard to … any development approval for, and any lawful use of, the premises or adjacent premises". The Applicant argued that the current lawful use of the land as a retirement facility was relevant in assessing the impact of the proposed development as the use would remain largely the same as it had been. Furthermore, it was argued that the existing use was relevant in assessing the existing character and amenity of the locality, and that the operation of the existing retirement facility provided evidence as to the need for the proposed development in the area.
Need for the proposed development
The Court found that there was a "clear need" for the proposed development on the basis of a "present and continuing demand" shown within the Applicant's detailed catchment area analysis, supply and demand analysis, and evidence of an undersupply of retirement facilities in the inner city area (at ).
The Court dismissed the appeal but allowed for the parties to formulate an agreed suite of conditions for the approval and listed the matter for review for the purpose of making final orders in the appeal at a later date.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.