The case of Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39 concerned an application by submitters in a planning appeal (Submitters) for leave to appeal to the Queensland Court of Appeal (Court) against the decision of the Planning and Environment Court (P&E Court) to approve a development application made by 4005 Properties Pty Ltd (Applicant) for a development permit for a material change of use for a multiple dwelling comprising an eight-unit building (Proposed Development) on land adjacent to the Submitters' residence at Maxwell Street, New Farm (Subject Land).

The P&E Court's decision in the case of Clarry & Anor v Brisbane City Council & Anor [2022] QPEC 49 (Reasons) was the subject of our March 2023 article. In short, the P&E Court found that the height, scale, and form of the Proposed Development satisfies the relevant qualitative assessment benchmarks in version 20 of the  Brisbane City Plan 2014 (Planning Scheme), that a minor non-compliance with the Planning Scheme in respect of refuse collection did not justify the refusal of the development application, and that there were no relevant matters justifying the refusal of the development application. The P&E Court allowed the appeal only to the extent that new conditions of approval could be prepared.

The Submitters' application for leave to appeal was based on four errors of law that they asserted had been made by the primary judge (at [36]). It was asserted that the primary judge erred in the following respects:

1.  The proper construction of the relevant assessment benchmarks applying to the Subject Land, namely the Low-medium density residential zone code (2 or 3 storey mix) (LMDR Zone Code), the New Farm and Teneriffe Hill neighbourhood plan code (NP Code), and the multiple dwelling code (MD Code).

2. The conclusion that the community expectations about the development of the Subject Land are not reasonable.

3.  The decision that there is both a community need and an economic need for the Proposed Development within the meaning of those terms in Overall Outcome OO3(m) in section 7.2.14.1.2 of the NP Code (OO3(m)).

4. The decision to allow the appeal only to the extent of imposing development conditions to give effect to minor changes to the approved plans.

The Submitters did not succeed on the alleged errors of law and leave to appeal was refused by the Court.

The following assessment benchmarks in the Planning Scheme are relevant to the Proposed Development and the alleged errors of law (see [15] to [19]):

• OO3(m) which requires development to be "…of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development".

• Performance Outcome PO1(b) in Table 7.2.14.1.3.A of the NP Code (PO1(b)) which requires development to be "…of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is…b. aligned with community expectations about the number of storeys to be built…".

•  Acceptable Outcome AO1 in Table 7.2.14.1.3.A of the NP Code (AO1) which requires that development "…complies with the number of storeys and building height set out in Table 7.2.14.1.3B", and Table 7.2.14.1.3.B of the NP Code which states that the maximum building height for the low-medium density living precinct is 2 storeys or 9.5 metres.

• Overall outcome OO7(b)(i) of the LMDR Zone Code (OO7(b)(i)), overall outcome OO2(h)(v) of the MD Code (OO2(h)(v)), and acceptable outcome AO4.1(a) in Table 9.3.14.3.A of the MD Code (AO4.1(a)), which also contemplate a 2 to 3 storey height for multiple dwelling developments of this kind in the low-medium density residential zone.

The Submitters' first ground of appeal was that the primary judged erred in considering that the NP Code incorporated only qualitative provisions about the height of buildings (at [37]).

The Proposed Development is six storeys tall, however appears as though it is five storeys due to a slope on the Subject Land. It is 4.7 metres higher than the existing four-storey multiple dwelling building on the Subject Land (at [20]).

The Court rejected the Submitters' argument that the quantitative restriction contained in AO1 affects community expectations and is therefore incorporated in PO1(b) as a quantitative consideration for the reason that the restriction in AO1 was one of many factors which may influence community expectations, however it "...does not affect the proper characterisation of [OO3(m)] and [PO1(b)] as qualitative provisions which do not prescribe height limits…" (at [37)].

The Submitters also relied on OO7(b)(i), OO2(h)(v), and AO4.1(a) to submit that the qualitative provisions such as OO3(m) and PO1(b) should be "construed harmoniously" with the quantitative provisions imposing height restrictions on developments of this kind (see [39] to [40]).

The Court held that such an approach would not give effect to the express terms of the Planning Scheme which contemplate that particular provisions should be prioritised in the event of inconsistencies, and that, for example, AO1 is only one means, among many others, by which PO1(b) could be satisfied (at [40]).

The Court found that there was no error of law in respect of the primary judge's construction of the NP Code, LMDR Zone Code, and MD Code (at [41]).

The Submitters argued that the primary judge erred in concluding that the community expectations are not reasonable because "…those provisions of the [NP Code] apply to the extent of any inconsistency in terms of any quantitative measure giving rise to such expectations" (at [42]).

The Court noted that in light of the finding in relation to the first issue, the only matter left for consideration in respect of this ground of appeal was "…whether the primary judge failed to have regard to the common material…and other relevant matters...when carrying out the assessment of the development application" (at [42]).

The Court found that it was clear from the primary judge's rejection of the submissions and lay witness statements regarding height expectations that the primary judge had regard to that material and was entitled to give it no weight in the context of an impact assessment of the Proposed Development (at [47]).

The Court found that there was no error of law in respect of the primary judge's finding that the community expectations are not reasonable (at [48]).

The primary judge's finding that there was an economic and community need for the Proposed Development was based on the evidence of an economic analyst expert called by the Applicant (at [49]).

The Submitters argued that the expert evidence did not specifically address the Proposed Development and merely considered economic and community need in the suburb of New Farm in a generic manner and thus did not assist in relation to the requirements of OO3(m) (at [49]).

The Court found that OO3(m) did not require a narrow consideration of the Proposed Development but allowed for a consideration of "...the community need and economic need for a development of that type in that community" (at [53]).

The Court found that the community need and economic need for the Proposed Development is a finding of fact and concluded that there was no error of law in respect of that finding (at [53]).

The Submitters argued that the order of the P&E Court did not reflect the Reasons and that the primary judge erred in finding that the appeal should be allowed only to the extent of imposing development conditions to give effect to minor changes to the approved plans (at [54]).

The Court found that this ground of appeal had been "overtaken by events" given that the Applicant had filed an application in the P&E Court in respect of a dispute about the development conditions, which was adjourned until the determination of the Submitters' application for leave (at [55]).

The Court concluded that there is no utility in engaging with this ground of appeal (at [56]).

The Court refused to grant leave to appeal and ordered that costs be reserved to be determined on the papers.