The case of 427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2) [2024] QPEC 24 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to refuse a development application for a development permit for a material change of use and reconfiguring a lot (Development Application) in respect of land situated at Bridgeman Downs, Brisbane (Land) described as Lot 1 on SP227437 (Lot 1) and Lot 2 on SP227438 (Lot 2).

The Court considered whether the proposal represents a change other than a minor change, whether the proposal results in unacceptable ecological impacts, issues pertaining to traffic and visual amenity, whether the proposed uses are consistent with the planning intent and what is expected for the land and locality, and whether amendments to the relevant planning scheme ought to be afforded weight in the proceedings (at [10]).

The Court dismissed the appeal for the reason that the amendments to the relevant planning scheme were directly relevant to the issues at hand, in particular the ecological issues, and should be afforded decisive weight (at [79]).

The Development Application originally sought a material change of use for a service station and a food and drink outlet (Stage 1), a food and drink outlet and a childcare centre (Stage 2), 10 townhouses (Stage 3), and 29 townhouses (Stage 4), as well as a reconfiguration of a lot including provision for new internal roads (Originally Proposed Development) (see [3] and [4]).

The Court allowed two applications for a minor change in respect of the Originally Proposed Development in September 2021 and December 2022, but refused a minor change application in February 2024 (2024 Minor Change Application) which was the subject of our April 2024 article (at [5]). The Development Application at the time of the appeal included "…the service station; two food and drink outlets; a child care centre; 10 multiple occupancy dwellings; and a conservation zone with a proposed fauna overpass to allow fauna (including koalas) to cross Beckett Road to an area of remnant vegetation on the western side of the road" (Proposed Development) (at [7]).

The Land, comprised of Lot 1 and Lot 2 which have a combined area of 2.8 hectares, is densely inhabited by bushland that supports an endangered vegetation community and is an essential habitat for threatened species, including koalas (see [2] and [11]). The Land shares substantial frontage with, and is on the eastern side of, Beckett Road (at [12]).

At the time at which the Development Application was properly made (Properly Made Date), the Land was designated as being within the Emerging Community Zone and the McDowall-Bridgeman Downs Neighbourhood Plan of version 15 of the Brisbane City Plan 2014 (City Plan) (at [2]). Since the Properly Made Date, the City Plan has been significantly amended and the Land has been rezoned and designated as being within the Environmental Management Zone and a new Bridgeman Downs Neighbourhood Plan (Neighbourhood Plan), which includes the Land in the Beckett Road precinct and Environmental living sub-precinct, under version 29 of the Brisbane City Plan 2014 (Amended City Plan) (at [8]).

Pursuant to section 46(3) of the Planning and Environment Court Act 2016 (Qld), the Court cannot consider a change to a development application that is not a "minor change". The definition of "minor change" is in schedule 2 of the Planning Act 2016 (Qld) (Planning Act), which relevantly states that a "minor change" to a development application, among other things, does not result in "substantially different development" (at [22]).

The Council argued that the Proposed Development should be refused on the basis that it is significantly changed from the Originally Proposed Development and does not represent a "minor change" (at [20]). The Applicant argued in response that the Proposed Development represents a sub-set of the Originally Proposed Development, is not qualitatively different, and can be achieved by the imposition of conditions (at [20]).

The Court considered whether the changes to the Originally Proposed Development, specifically, the previously accepted minor changes of 2021 and 2022 (Changes), cumulatively exceed the threshold of a "minor change" (see [23] to [25]). The Court observed that the Originally Proposed Development was significantly different from the Proposed Development which, among other things, reinstates staged development. The Court recognised that the deletion of staged development from the Originally Proposed Development was held to be material to the rejection of the 2024 Minor Change Application (at [26]).

The Court accepted the Applicant's argument that "…in distinction from the [2024 Minor Change Application], the present proposal retains rather than changes features from the proposal resulting from the December 2022 orders…" (see [29] to [31]). The Court held that the Changes which were minor and intended to be ameliorative can be seen as a part approval of the Proposed Development as opposed to a change (see [31] and [75]).

The Court observed that the Land has "significant ecological value" by virtue of it being an endangered regional ecosystem, an essential habitat for several species, and its functioning as a linkage between Cabbage Tree Creek and Albany Creek (at [32]). The Court recognised that the Proposed Development plainly entails environmental impacts, including the removal of more than 30% of the remnant endangered vegetation and a more substantial percentage of the non-endangered vegetation (at [34]).

The Court accepted that the Proposed Development, in conjunction with the proposed conditions, would maintain "…a reasonable degree of connectivity" between the habitats in Cabbage Tree Creek and Albany Creek in light of "…the adequacy of the 21-metre fauna corridor at the north-western corner of the site (which connects with the proposed fauna overpass, which in turn enhances connectivity to the area to the west including Albany Creek)" (at [35]).

The Court also observed that the Proposed Development's inclusion of "…a conservation zone representing the fauna corridor connecting with the proposed fauna overpass and preservation of existing vegetation", in conjunction with the proposed conditions pertaining to rehabilitation, fencing, and protection, elevated the Proposed Development to become "…more acceptable from an ecological basis…" as compared to the Originally Proposed Development (see [36] and [37]).

Whilst the Court was satisfied that these improvements went some way to resolving the ecology issues (at [37]), it also accepted evidence from the Council's ecological expert that not all reasonable onsite mitigations for the Proposed Development had been taken by the Applicant before resorting to the provision of the koala overpass as an environmental offset, particularly in light of the Neighbourhood Plan under the Amended City Plan (see [38] and [77]).

The Court considered "…whether the combination of uses planned for the site would have a scale not consistent with the expected land use within the locality and what weight, if any, should be given to any inconsistency with the Amended [City Plan]" (at [39]).

The Court recognised that the Proposed Development is largely incompatible with the Amended City Plan, which adversely places the Land within the Environmental Management Zone and the Environmental living Sub-precinct under the Neighbourhood Plan (at [46]).

In determining the weight to be given to the Amended City Plan, the Court observed that because the Amended City Plan has come into effect - in contrast to, for example, a draft amendment - and is locally focussed, it is more likely to be given weight in the consideration of the Proposed Development, citing the case of Tricare (Bayview) Pty Ltd v Gold Coast City Council [2022] QPEC 31; [2023] QPLR 1073 (at [49]).

Despite contrasting the circumstances of the appeal with those in the case of Roseingrave v Brisbane City Council (No. 2) [2022] QPEC 43, wherein the Court gave decisive weight to new planning scheme mapping that was adopted after the development application but before the Council's refusal decision, the Court found that there was "…no reason not to conclude that [the amendments to the City Plan] better [reflect] the actual ecological value of the site in a way that the previous mapping did not" (at [52]). Accordingly, the Court found that the Amended City Plan should be taken into account in assessing the Proposed Development (at [52]).

The Court had regard to "…the fairness of taking the amendments into account in circumstances where they were not in force at the time of the application" (at [54]) but ultimately did not hold that the circumstances gave rise to such concerns as to preclude, or detract from, consideration of the Amended City Plan (at [58]).

The Court concluded that the Proposed Development conflicts with the Amended City Plan for the following reasons, which warranted refusal of the Proposed Development:

• The Land is mapped as General Ecological Significance Strategic under the Amended City Plan. The Proposed Development compromises the values emphasised by the Strategic Framework, namely "…the importance of the Greenspace System, including ecological functions and ecosystem services and linking waterways, biodiversity areas and ecological corridors" (at [60]).

• The Land is designated within the Environmental Management Zone under the Amended City Plan "…the purpose of which is to identify environmentally sensitive areas and protect them from urban activities other than dwellings". The proposed service station is non-compliant with this purpose (at [60]).

• The Proposed Development is not compliant with Purpose (1)(a)(ii) of the Biodiversity Area Overlay Code, which requires protection or enhancement of environmental values (at [61]).

• The Proposed Development is not compliant with Overall Outcomes 3(g), 3(h), 6(a), and 6(c) of the Neighbourhood Plan, which provide for the protection from inappropriate development, the protection and enhancement of ecological features and corridors, the continued function of the ecological corridor between Cabbage Tree Creek and Albany Creek, and the maintenance of dwelling houses on large acreage lots at a very low density to minimise impacts (at [62]).

The two traffic issues in the appeal concerned the proposed left-in turn to the service station from Beckett Road and whether it undermines the road hierarchy which ought to preserve the movement function of Beckett Road as a higher order road, and that the required auxiliary turn lane may generate the risk of rear end collisions (at [65]).

The Court acknowledged the existence of these traffic issues but found that they were "not major" and did not call for refusal of the Proposed Development (at [66]). The Court accepted the Applicant's argument that the relevant assessment benchmarks do not require there to be no impacts on traffic, only that there be no significant impact on the safety, efficiency, function, and convenience of use or capacity of the road network (at [67]).

The Applicant asserted that any non-compliance with the relevant assessment benchmarks pertaining to visual amenity was insufficient to warrant refusal of the Proposed Development, and that as agreed upon by the visual amenity experts any unacceptable visual amenity impacts could be resolved by the imposition of the proposed conditions (see [69] and [70]). The Council conceded that visual amenity impacts are alone insufficient to warrant refusal and did not contest the resolution by way of the imposition of conditions (at [68]).

The Court observed that the retaining walls and acoustic barriers along the southern boundary of Lot 2, in respect of which visual amenity impacts arise, are capable of being "…partially concealed by planting of appropriate species in the area" (at [68]). The Court found that visual amenity impacts did not call for refusal of the Proposed Development (at [70]).

The Applicant contended that several relevant matters favoured approval of the Proposed Development in the event of non-compliance with the relevant assessment benchmarks, including its ecological benefits, the convenience of its location, need, and increased convenience, choice, and competition in the proposed commercial outlets therein (see [71] and [72]).

The Court considered these matters pursuant to section 45(5)(b) of the Planning Act and acknowledged their relevance but did not find that they were determinative of the appeal (at [74]).

The Court found that the Proposed Development does not comply with the ecological requirements of the Amended City Plan and dismissed the appeal (at [79]).