No ability to regularise an unlawful industrial use in Rocklea

The Planning and Environment Court in Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2017] QPEC 13 dismissed an appeal by Delta Contractors (Aust) Pty Ltd against the Brisbane City Council’s refusal of its development application for a development permit for a material change of use for a warehouse with an ancillary office and preliminary approval for building work on land at Rocklea.

Delta Contractors made the application to the Council in order to regularise the unlawful use of a builder’s storage yard which had been occurring on the land for some time.

The land was improved by an old high set house, predominately surrounded by residential uses and included in the low density residential zone of the Council’s planning scheme.

The disputed issues in the appeal related to whether:

• the proposed development conflicted with the strategic framework and low density residential zone code of the Council’s planning scheme;
• the proposed development would result in any unacceptable traffic or amenity impacts;
• there were any sufficient grounds to justify approving the application despite any conflict with the Council’s planning scheme.

The Court assessed the application against the Council’s planning scheme and determined that the application was in major conflict with the planning scheme, and there were no sufficient grounds to justify an approval.

Snapshot of the Court’s consideration and findings

Conflict with the strategic framework and low density residential zone

Delta Contractors’ town planner contended that there was an inconsistency between the designation of the land under the strategic framework and its inclusion in the low density residential zone as a consequence of the indicative mapping which was not cadastral based. In the town planner’s view, the land appeared to be within but on the boundary of a Major Industry Area.

The Council’s town planner contended that the boundary of the industrial zone was clear and well defined. The development in the immediate area of the land was residential in nature and, on reading the Council’s planning scheme as a whole, it was clear that the land was intended to be in a low density residential zone.

The Court was of the view that the evidence of the Council’s town planner was more persuasive and determined that:

• it was not the Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a planning authority in a careful and proper manner had chosen to adopt;
• it was not for the Court to move the boundaries of zones which delineated separate uses unless there were very good reasons for doing so;
• in determining what amenity consequences may follow, it would be necessary not to construe potential amenity impacts too narrowly.

Traffic and amenity impacts

Delta Contractors proposed a number of conditions to address the traffic and amenity impacts resulting from the proposed development such as limiting the number of heavy vehicle movements, the type of trucks visiting the land, operation hours and the construction of noise attenuation barriers.

Whilst the Court was satisfied that the proposed development would not generate unacceptable traffic impacts, it determined that the conditions addressing the amenity issues would not be enforceable as the regulation of the use in that manner would not be able to be practicably achieved by Delta Contractors or any future owner of the land, and would still result in a very different amenity to that of a residential use.

Sufficient grounds

Delta Contractors contended that the proposed development was a more appropriate use of the land than a residential use having regard to the lack of pedestrian infrastructure and distance to parks and schools, and the flooding impacts.

However, the Court determined that those grounds were not relevant as whilst the land was subject to flooding, it was still feasible for a dwelling house to be constructed on it. The absence of infrastructure and distance to parks and schools did not in itself make the land unsuitable for residential purposes.

Points worth noting

It is not the Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a planning authority in a careful and proper manner has chosen to adopt.

When determining what amenity consequences may follow from a proposed development, the potential amenity impacts should not be construed too narrowly.