The case of Ramsay Health Care Australia Pty Limited v Brisbane City Council & Anor [2024] QPEC 49 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) by Ramsay Health Care Australia Pty Limited (Submitter) against the decision of the Brisbane City Council (Council) to approve, subject to conditions, a development application (Proposed Development) by Ron Build Pty Ltd (Applicant) seeking a development permit for a material change of use for centre activities (community care centre and health care service) on neighbourhood centre zoned land situated at 68-72 Hunter Street, Greenslopes (Land).

The Proposed Development comprises a contemporary single building with three storeys above ground and three basement levels of car parking, including 114 car parking spaces and six motorcycle parking spaces. The length, width, and height of the building is approximately 40 metres, 33 metres, and 14.75 metres respectively, and 20.6% of the Land will be landscaped (at [40]). The Proposed Development is categorised as impact assessable under the Brisbane City Plan 2014 (version 26) (Planning Scheme) (see [6] and [14]).

The Court considered whether the Proposed Development is an appropriate use of the Land, whether the built form is a form of overdevelopment and therefore unacceptable, and whether there is a need which arises both in the planning context and as a relevant matter that supports approval or refusal (at [47] and [48]).

The Court was persuaded that the appeal should be allowed in part and approved the Proposed Development subject to conditions (at [155]).

The Applicant has since made an application to the Court seeking orders that the Submitter pay its costs of an incidental to the appeal. That application has not yet been decided by the Court.

The Land is within the Coorparoo and Districts Neighbourhood Plan area and comprises three parcels of land with a total area of approximately 1,919 m² (see [3], [7], and [8]).

The Submitter operates the Greenslopes Private Hospital which is Queensland's largest private hospital, located directly opposite to the Land and within the Greenslopes Private Hospital Precinct of the Coorparoo and Districts Neighbourhood Plan. That land has a development approval for hospital, community care centre, emergency service, health care service, and child care centre uses (see [1], [5], [10], and [96]).

Significantly and importantly, the Planning Scheme expects the existing and future character of the locality, including the Land and the Greenslopes Private Hospital, to continue to develop and intensify (at [26]).

The key issue in the appeal was whether the requirements of the Coorparoo and Districts Neighbourhood Plan Code (Neighbourhood Plan Code) are satisfied by the Proposed Development providing a mix of centre and community activities that are complementary to the Greenslopes Private Hospital (at [2]).

The Submitter argued that the Proposed Development is an inappropriate use of the Land having regard to the relevant assessment benchmarks, including the Strategic Framework, Neighbourhood Plan Code, and the Neighbourhood Centre Zone Code (at [49]). More particularly, in respect of the Neighbourhood Plan Code, the Submitter argued that "…to be 'complementary', development should not compete with, or duplicate medical activities offered at, the Greenslopes Private Hospital" (at [94]). The Court did not accept this as the Planning Scheme "…contemplates uses [on the Land] that compete with the Greenslopes Private Hospital…[so long as] they comply with certain requirements" (at [94]).

The evidence accepted by the Court suggested that the Proposed Development is complementary to the Greenslopes Private Hospital, because "…the use will serve a local need", "…the Greenslopes Private Hospital will continue to function and provide services to the community, including the local community, and possible expansion will not be delayed", and "…the Greenslopes Private Hospital will not fail if this Proposed Development proceeds" (see [69], [93], and [95]).

The Court was therefore satisfied that the Proposed Development is an appropriate use of the Land, which weighs in favour of approval, and that the Proposed Development complies with the relevant assessment benchmarks, particularly the Neighbourhood Plan Code (at [99]).

The Submitter argued that the Proposed Development should be refused because it represents an overdevelopment of the Land and has unacceptable built form, having regard to the relevant assessment benchmarks, including the Strategic Framework, Neighbourhood Plan Code, Neighbourhood Centre Zone Code, and Centre or Mixed Use Code (at [100]). The Submitter argued that the Proposed Development is a visually dominant building and therefore the "…bulk and form of the proposal is inconsistent and incompatible with the existing and intended character of the locality" and "…an unacceptable overdevelopment of the Land" (at [101]).

The Court relied on evidence given by visual amenity experts and town planning experts to address these alleged issues with respect to the built form and overdevelopment (at [102]). The Court found that the Proposed Development does not comply with the assessment benchmarks relating to setback and separation distance (at [121]). However, the Court was convinced that the non-compliance does not weigh in favour of refusal "…because the height, bulk, scale and character of the building respects and reflects the mixed character and partly commercial, partly residential streetscape of the area and the intended character of the locality" and "…the Greenslopes Private Hospital will continue to have a dominant visual influence and remain the most prominent built form [within the visual catchment]" (see [25] and [121]).

Therefore, the Court found that the built form of the Proposed Development is appropriate and will not result in overdevelopment of the Land (at [133]).

The Submitter argued that there is no need for the Proposed Development and the absence of a tenancy schedule creates uncertainty surrounding the scope and nature of the potential new uses (see [134] and [135]). The Court rejected this on the basis that it is not practical to identify and assess all possible tenancies: what is relevant is the uses sought to be approved by the Proposed Development which the Court remarked is "entirely orthodox" (see [34] and [38]).

The Court observed as follows in respect of the consideration of need (at [141]):

• The bar should not be set too high if the need to be satisfied involves the essentials of every day life.

• The co-location of health care services within walking distance to a private hospital is a significant benefit for the community.

• There is a deliberate intention within the Planning Scheme to provide for health care service and community care centre uses on the Land.

The evidence established that there are more medical practitioners living in the local catchment surrounding the Greenslopes Private Hospital than anywhere else in Brisbane (at [144]). This is a result of the clustering of health services in the local catchment, which is also apparent around the Princess Alexandra Hospital, Mater Hospital, and Queensland Children's Hospital (at [144]). The number of people within the local catchment is anticipated to significantly increase (at [146]). The Court accepted that "the presence and proximity of these major health facilities drives the demand for health and medical practitioner and related floor space within areas close to those hospitals" and that "[t]he growing population, as well as the ageing of those populations, will add to the demand for a range of Health care services" (see [144] and [146]).

Therefore, the Court found that there is a community and economic need for the Proposed Development, which will service the needs of the local catchment and further afar in addition to providing more choice and competition (at [151]).

The Court approved the Proposed Development subject to conditions and allowed the appeal in part (at [154]).

The Court's decision in this case serves as a reminder to litigants and expert witnesses that when considering the need for a particular development, if the need to be satisfied involves the essentials of every day life such as health care services, the bar to be met should not be placed too high.