The case of McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42 concerned a submitter appeal (Appellants) to the Planning and Environment Court of Queensland (Court) against a decision of the Brisbane City Council (Council) to approve a development permit for a material change of use of land for a six-storey apartment building in New Farm in Brisbane. 

The Appellants appealed against the Council's decision on the grounds that the proposed development did not comply with the relevant assessment benchmarks in the Brisbane City Plan 2014 (City Plan), in particular the overall outcomes of the Medium Density Residential Zone Code, the overall outcomes and performance outcomes in the New Farm and Teneriffe Hill Neighbourhood Plan Code, and the overall outcomes and performance outcomes in the Multiple Dwelling Code.

The Court assessed "…the proposed development's compliance with the relevant assessment benchmarks by addressing the extent to which it achieves the planning goals with respect to:

(a) the height, bulk and scale of development;

(b) the amenity impacts of development;

(c) landscaping; and

(d) the Medium density living precinct in the New Farm and Teneriffe Hill neighbourhood plan." (at [17]).

The Court ultimately dismissed the appeal and found the proposed development to be consistent with all the relevant assessment benchmarks. 

The Appellants argued that the proposed development was not compliant with sections 6.2.1.3 4.a. and 5.b of the Medium Density Residential Code, which encouraged development of up to five storeys in height whereas the proposed development was six storeys in height. However, the Court found that the Medium Density Residential Code did not mandate a five-storey limit, and instead was merely a guide to be considered in conjunction with other provisions of the City Plan. 

The Appellants submitted that the proposed development was not compliant with performance outcomes PO1, PO6, PO11, and PO14 of the New Farm and Teneriffe Hill Neighbourhood Code as it did not contribute to a cohesive streetscape. The Court considered expert evidence regarding the surrounding streetscape, which is generally comprised of one-storey to two-storey houses and residential apartment blocks ranging from two to nine storeys, with two exceptions of an 11-storey and 14-storey block. The Court found that the proposed six-storey development was "well-designed" and "location-responsive" and that it complied with the City Plan (at [135]). 

The Appellants argued that the proposed development would result in an unacceptable loss of views, privacy impacts, and overshadowing. 

With respect to the loss of views, the Court considered performance outcome PO7 of the New Farm and Teneriffe Hill Neighbourhood Code, which required "[d]evelopment ensures new buildings maintain views to and from the river…". The Council's visual amenity impact expert gave evidence that that the Appellants would maintain "expansive river views", although one of the Appellants' apartments would be somewhat impacted by the proposed development (at [168] and [171]). Ultimately the Court found that the Appellants' views would not be inhibited by the proposed development, with the exception of one of the Appellants, whose views would be impacted whether the proposed development was limited to the recommended five storeys and 15 meters in height or not.

With respect to privacy impacts, the Appellants submitted that the proposed development contravened the overall outcomes in sections 9.3.14.2 2.a., i., j., l., and q, as well as performance outcomes PO5, PO7, PO8, PO11, and PO14 of the Multiple Dwelling Code, which required residences to protect the visual privacy and prevent impacts on residential amenity. The Appellants' expert architect gave evidence that from certain windows of the proposed development, the Appellants' private tennis court and outdoor recreation area would be visible. The Court noted that there was a "…substantial building separation of between 17 meters and 25 meters" (at [183]) between the Appellants' building and the proposed development, and also that the tennis court was already visible from the public Merthyr Park. The Court found that there was no unacceptable privacy impact. 

With respect to overshadowing, the Court again considered the overall outcomes in sections 9.3.14.2 2.a., i., j., l., and q, as well as performance outcomes PO5, PO7, PO8, PO11, and PO14 of the Multiple Dwelling Code. The Court considered the evidence given by the Applicants' architect that the shadow cast by the proposed development would be "…unlikely to have any significant impact on the amenity of residents of adjoining buildings, for users of the tennis court on Kirribilli, or for members of the public enjoying Merthyr Park." (at [193]). The Court held that the proposed development complied with all the relevant assessment benchmarks relating to overshadowing. 

The Appellants also argued that the proposed development would not provide opportunities for deep planting and other landscaping. In this respect, the Appellants argued that there was non-compliance with acceptable outcome AO7.2(b)(iii) of the Multiple Dwelling Code, which required the inclusion of a deep planting area. The proposed development, however, included landscaping plans and planter boxes at each level of the building. These included 1.5 metre deep planter boxes within the front setback, which would allow for the planting of medium sized trees. The Court was therefore satisfied that the proposed development included plans for appropriate landscaping that would make an appropriate contribution to the streetscape.

The Court held that the proposed development was consistent with the relevant assessment benchmarks of the City Plan, and dismissed the Appellants' appeal.