Planning and Environment Court approves lots less than 450m2 in Character Residential Zone

Background

Smout v Brisbane City Council [2019] QPEC 10 (Smout) involved an appeal against the Brisbane City Council’s decision to refuse a development application for reconfiguring a lot (boundary realignment) and a material change of use (dwelling house on a small lot contained within the Character Residential Zone on a lot smaller than 450m²) (Appeal).

The land the subject of the Appeal was situated on the corner of Abbott and Massey Streets, Ascot being 810m² in size (Land). The Land comprised two rectangular lots, being 10m wide and 40m long, and contained a pre-1947 traditional character dwelling house orientated towards Abbott Street (House).

The development application the subject of the Appeal concerned the partial demolition, redevelopment and relocation of the House and the realignment of the lots to create two square lots (Development Application).

The Council refused the Development Application, “because the size and shape of the new lots resulting from the proposed boundary realignment would be inappropriate, and lead to an inappropriate built form outcome.” (Refusal). That decision was appealed to the Planning and Environment Court (Court).

Character Residential Zone code

The Land was located in the Character precinct of the Character Residential Zone in Brisbane City Plan 2014 and required assessment against the Character Residential zone code (the Code). The Code consists only of overall outcomes, with no performance or acceptable outcomes as an alternative to satisfy the purpose of the Code.

In maintaining its refusal of the Development Application, the Council relied upon two overall outcomes in the Code:

1. Overall outcome (5)(a), which deals with the appropriate sizing of a lot:

“(5)(a) Development occurs on an appropriately sized and configured lot and is of a form and scale that reinforces a distinctive subtropical character of low rise building set in green landscaped areas.“

2. Overall outcome (6)(d), which deals with the size of a lot and “traditional backyards”:

“(6)(d) Development provides for a minimum of 450m² to maintain a block pattern that accommodates traditional backyards and large trees.“

The “appropriate size” of a lot

The Development Application proposed the realignment of the existing lots into two 400m² lots. The Council submitted that such a lot size would mean significant non-compliance with Overall Outcome (6)(d) of the Code and warranted refusal.

In support of its contentions, the Council relied upon the decision of her Honour Judge Kefford in Jackson v Brisbane City Council [2018] QPELR 264 at [45] (Jackson), where, amongst other things, her Honour concluded that non-compliance with an overall outcome of a code where that code provides no alternatives results in a failure to comply with the code.

In Smout, the Court did not accept that the Council’s interpretation of her Honour’s decision in Jackson applied to Overall Outcome (6)(d) of the Code. In determining this, his Honour Judge Williamson QC stated that:

“Overall outcome (6)(d) includes an empirical standard for the minimum lot size… couple with a qualitative statement that identifies the planning rationale underlying the empirical standard. [This]… opens the door for an applicant to urge the assessment manager to adopt a flexible approach to the exercise of the planning discretion. It is open to the applicant to demonstrate that the underlying planning rationale is met.”

The “block”

Central to the Council’s argument was the impact the Development Application would have on the pattern of “traditional backyards” of the “block”, which they asserted was required by Overall outcome (6)(d) of the Code.

In response to this, the Court found that the lots of the Block were a “mixed bag” of sizes and shapes, with less than half of the considered neighbouring lots on the Block exhibiting some, but not all, of the characteristics of a “traditional backyard”.

Consideration of the Council’s grounds for refusal

The Council’s reasons for refusal were that the Development Application, if approved, would:

• Create lots less than 450m²;
• Introduce two square lots into a predominantly rectangular lot pattern of subdivision;
• Remove existing rectangular lots that would otherwise facilitate a large backyard with a large tree;
• Create a lot with a front yard but no backyard (on the one frontage); and
• Create a lot that would facilitate a small backyard but limited potential for a large tree (on the other frontage).

Consideration of the whole context and purpose of City Plan 2014

The Court found that the Council’s approach was “superficial” and failed to consider the contextual features of the planning rational of City Plan 2014.

Decision

The Court approved the Development Application subject to conditions. His Honour Judge Williamson QC held that the Code does not advance an alternative performance based solution based on lot size alone and that, where a non-compliance is identified, regard should be had to the “verbiage of the planning scheme” in conjunction with “proper town planning practice, and principles.”

The Development Application, although resulting in lot sizes of “less than empirical measures, [remains]… consistent with the planning rationale that underlies the purpose for the empirical measures.” Accordingly, the Court held that the planning rationale underlying the Brisbane City Plan 2014 supported the Development Application.

Implications

The Court’s decision in Smout has significant implications for the Council’s current approach of assessing development applications seeking to create lots less than 450m² in the Character Residential Zone.

In particular, the decision will allow greater scope for developers to apply for small lot subdivisions in the Character Residential Zone, where such applications are appropriately supported by valid town planning grounds.

This article was written by Peter Bittner, Partner, Luke Walker, Senior Associate and Thomas Canniffe, Law Graduate.