The case of Edie & Ors v Brisbane City Council & Anor [2023] QPEC 9 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to approve a development application for a development permit for a material change of use for a place of worship, church hall, and townhouses (parish residences) (Proposed Development) on land situated at 33 Bunya Street, 34 Peach Street, and 68 to 80 Dunellan Street, Greenslopes (Land).

More specifically, the Proposed Development involved the removal of the existing church and parish residence buildings on the Land that were constructed after 1946, the retention of the four pre-1947 dwelling houses which were to be reused as parish residences, and the construction of a new church building and church hall (Proposed Development).

The issues in dispute were as follows (at [28]):

1. Whether the built form and scale of the Proposed Development are compatible with the planning intent.

2. Whether the Proposed Development will result in unreasonable amenity impacts.

3. Whether the Proposed Development can be conditioned to achieve compliance with the assessment benchmarks to the extent that there is any non-compliance with the assessment benchmarks.

The Court held that the Proposed Development can be conditioned to achieve compliance with the relevant assessment benchmarks and listed the appeal for review to enable the parties to agree on appropriate conditions.

The Proposed Development is to be assessed against the relevant assessment benchmarks in the Brisbane City Plan 2014 (version 18) (City Plan) and the Land is included within the following designation of zones and subject to the corresponding codes in the City Plan:

• Character Residential (Infill Housing) Zone and subject to the Character Residential (Infill Housing) Zone Code (Infill Housing Zone Code).

• Coorparoo and District Neighbourhood Plan and subject to the Coorparoo and District Neighbourhood Plan Code (Coorparoo Neighbourhood Plan Code).

• Traditional Building Character Overlay and subject to the Traditional Building Character Overlay.

The Community Facilities Code and Transport, Access and Parking and Servicing Code (TAPS Code) were also applicable to the assessment of the Proposed Development. 

This issues in dispute in respect of character and built form were as follows (at [28]):

"1. Whether the proposed development is compatible with the planning intent for the area, including the character and built form requirements of the planning scheme, having regard to both the following assessment benchmarks and whether the proposed development is of a height, bulk and scale that: -

(a) is appropriate, in relation to:- 

(i) the prevailing built form and streetscape of the subject land and its surrounds; and 

(ii) the use proposed; 

(b) is consistent with:- 

(i) the existing and desired building height for the area; and 

(ii) community expectations for development in the area;…"

Relevant assessment benchmarks were identified in the Strategic Framework, Infill Housing Zone Code, Coorparoo Neighbourhood Plan Code, and Community Facilities Code.

The Court held that the Proposed Development satisfies the relevant assessment benchmarks in respect of character for the following reasons:

• The Court agreed with the Applicant's and Council's visual amenity experts in that the character of the Proposed Development is sub-tropical and the character of the locality mixed. In particular, the Court stated as follows:

  • That it accepted that "…the proposed landscaping and deep planting was generous and well-located, and would assist to integrate the built form [and] reinforce the sub-tropical character…" (at [49]).

  •  "…the character of the immediate locality, informed by a mix of land uses, building forms and materials, is mixed" because of the combination of the nature of the built forms and materials used in both pre-war and post-war buildings that deliver traditional building and sub-tropical elements (see [49] to [55]).

• The Court held "[t]hat a new building must reflect and complement the city’s traditional building character suggests that it is not intended that the proposal mimic that character" (at [68]). The Court preferred the evidence of the Applicant's and Council's visual amenity experts in this respect, who opined that "…it is not a good design outcome for a church to mimic traditional building character; that a tin and timber church would be a highly compromised outcome" (at [69]).

• The Court considered the visual amenity experts' description of the attributes of the Proposed Development and preferred that of the Applicant's and Council's (see [62] to [65]). The Court therefore held that the Proposed Development reinforces the sub-tropical character required by Overall Outcome 5(d) of the Infill Housing Zone Code.

The Court held that the Proposed Development satisfies the relevant assessment benchmarks in respect of height, bulk, and scale for the following reasons:

• The Proposed Development is less than 9.5 metres above ground, but for the ridge of the church and the belltower, and is compatible with most other built form in the locality. The Court agreed with the Council's visual amenity expert that the area exceeding 9.5 metres would not have any material impact on the character of the area (at [70]). Further, the Court held that the Proposed Development has sufficient setbacks such that "…the height of the church is compatible with other built form in the area" (at [70]).

• The Land is "…appropriately sized and configured, enabling the built form to be dispersed across the Site as six buildings…" (at [66]).

• The Council's and Applicant's visual amenity experts and the Applicant's architectural expert opined that the Proposed Development "…contributes to a high quality streetscape through its form, scale and landscaping outcomes" (at [73]). The Court agreed and held that "…the built form and landscaping of the proposal will contribute to a high quality streetscape" (at [73]).

The Court in summary held that "…the landscaping and the design elements including the articulation, setbacks and the stepped roof form all contribute to a softening of the built form. These features, in combination with the use of materials, colour and detailing including traditional design motifs, ensure that the proposal is compatible with and integrates with the built form intent of the [Infill Housing Zone Code]" (at [71]).

The Court further held that the community expectations are a relevant consideration in that "…it is reasonable that the community expect that the proposal has a scale and form consistent with the amenity and character intended for the Site and complements the traditional building character" (at [39]). However, the Court held that the Appellants' submissions in respect of community expectations as to the built form are not reasonable for the following reasons:

• The Appellants' adverse submissions are not reasonable as "…they give insufficient weight to the current use which can continue with limited restrictions, and misconstrue the City Plan as requiring that the proposal be of tin and timber construction" (at [37]) and because the Proposed Development is "…compatible with the built form intent of the zone, reflects and complements the character and is of a bulk, scale and form consistent with and reflective of that character…" (at [40]).

• "Reasonable expectations with respect to built form, site layout and landscape design should be informed by an objective reading of the applicable provisions of City Plan. I am satisfied the proposal meets those provisions" (at [75]).

The Appellants argued that the "…hours of operation and levels of patronage would result in unacceptable amenity impacts, in terms of traffic, lighting, noise and general amenity" (at [79]). The Appellants relied on several assessment benchmarks from the Infill Housing Zone Code, Coorparoo Neighbourhood Plan Code, Community Facilities Code, and the TAPS Code which demonstrate non-compliance. Each individual amenity issue was considered by the Court in turn.

The traffic expert opined that "…the number, location and design of the driveways are consistent with the requirements of the TAPS Planning Scheme Policy and will ensure adequate levels of vehicular and pedestrian safety on Dunellan and Bunyan Streets" (at [100]). The Court agreed and held that any minor non-compliance in respect of traffic impacts does not warrant refusal since the Proposed Development "…will result in an imperceptible increase in traffic volumes on the local street network and minimises the introduction of non-local traffic into minor residential streets" (at [105]).

The Court accepted the traffic expert's unopposed evidence that "…the additional onsite car parking will improve the existing traffic and parking situation and local amenity and there will be no unacceptable traffic operations impact and traffic safety risk on the local street network as the result of approval of the proposed development" (at [114]).

The Court considered the amenity issues relating to hours of operation, lighting, and noise in conjunction for the reason that the existing use is largely uncontrolled in that "…it is necessary to examine the impact of the hours of operation on amenity. In the present circumstances this requires a consideration of the impacts of lighting and noise" (at [119]).

Lighting

The Applicant's acoustic engineering expert opined that "[l]ighting can be readily designed, installed and operated to meet amenity spill and glare requirements of AS4282 which protects the amenity of surrounding areas" (at [120]). The expert further opined that "…an approval of the proposed development with conditions would deliver a better amenity outcome for the neighbourhood than the existing facility, from a noise and lighting perspective" (at [121]). The Court agreed and held that conditions can achieve an appropriate amenity outcome, and that "…there are no lighting issues which warrant refusal of the proposed development" (at [123]).

Acoustic

The Appellants' and Applicant's acoustic engineering experts both opined that noise mitigation measures could be implemented to satisfy the technical requirements with respect to noise emissions (at [124]). However, the Appellants argued that "…while the expert evidence should be respected and given due weight, the Court must have regard to the reasonable and genuine concerns about impacts on amenity notwithstanding those expert opinions" (at [125]).

The Appellants' acoustic engineering expert expressed concern about the risk of noise generated by patrons leaving the Land and that the mitigation of the risk relies upon the implementation of conditions (at [126]). The Appellants' town planning expert agreed and submitted that the church may not have the ability to enforce compliance with the conditions or to monitor the number of people on the Land.

The Court rejected the Appellants' argument for the reason that "[i]t must, of course, be assumed that persons will act lawfully and comply with conditions of approval" and that patrons would comply with a noise management plan (at [131]). The Court held that "…amenity impacts arising from noise generated by people on site could be satisfactorily addressed by conditions such that noise from the proposed development would not be inconsistent with the character and amenity of the area" (at [137]).

Hours of operation

As the Court did not find that lighting or acoustic impacts would cause unacceptable amenity impacts, the Court held that "…the proposed hours of operation will not result in unacceptable amenity impacts and are consistent with reasonable expectations for the use as informed by the historic and current use of the Site" and that the imposition of appropriate conditions can achieve compliance with the relevant assessment benchmarks (see [138] and [139]).

The Court heard from all parties as to relevant matters and held that the exercise of the Court's discretion favours approval of the Proposed Development for the following reasons (see [142] to [143]):

• "The present use of the Site can continue with limited restrictions upon its operation and use." However, "[t]he existing approved church facility is no longer fit for purpose" because of its unacceptable amenity impacts on the community.

• The Proposed Development will benefit the local community by way of improving accessibility and regulations on its hours of use.

• The refusal of the Proposed Development is not warranted in the face of any non-compliance with the relevant assessment benchmarks.

The Court adjourned the appeal to a date to be fixed for review to enable the parties to consider appropriate conditions of approval.