April 5, 2013

Szylkarski & Ors v Brisbane City Council & Anor [2012] QPEC 080


This Judgment was delivered by Judge Robin QC on 10 December 2012.

The case was the subject of an adverse submitter appeal (Appeal) by local residents (Appellants) against the Brisbane City Council’s (Respondent) approval of a development application for a development permit for a material change of use for a multi-unit dwelling (Proposal) and a preliminary approval to carry out building work.

The subject site was located at 22 Goodwin Terrace, Moorooka (Land). The Land was a 607m2 vacant lot with a frontage to Goodwin Terrace of approximately 15.088m. Previously, there had been a post-1946 house standing on the Land. The streetscape features pre-1946 housing and the Land is located in the Low-Medium Density Residential Zone within the Moorooka District Local Plan and is within a Demolition Control Precinct of Brisbane City Plan 2000 (City Plan). The Land was also close in proximity to Beaudesert Rd, and Moorvale Shopping Centre, a large multi-purpose centre at MP3 Level.

The Proposal was for five units in a single building, which was so articulated it presented as three.

In 2008, a development approval, resulting from a Code Assessable Development Application, was granted by the Respondent, authorising the establishment of a large two-storey residence, with a gross floor area (GFA) exceeding 300m2. However, the currency period for that approval lapsed on 31 November 2012 and the Court stated that approval did not require much, if any, weight to be given to it.


The first issue was whether the Proposal was too big, in size and bulk, which was said to be inconsistent with the Low-Medium Density of the locality, and contrary to relevant provisions of City Plan which relate to GFA requirements.
The second issue was whether the Proposal met the minimum rear boundary setback of 6 metres.
The Court was required to consider if there was a conflict with City Plan, and if so, whether there were sufficient grounds to justify a decision to approve the Proposal.


Whilst the Court agreed that the Proposal was consistent with broad themes in the City Plan and was ‘generally appropriate’ development, it did not accept that the Proposal’s size and bulk were consistent with the Low to Medium Density of the locality. The Court held that the size and bulk of the Proposal was out of scale with surrounding development that was likely to remain in place for the long term, and offended the purpose of applicable codes which require new development to respond sympathetically to existing development.

The Court found a conflict with City Plan and stated that a finding of conflict may have been avoidable had the only conflict been that which the Co-Respondent could do nothing about, such as, site dimensions and frontage, but there was no need for the strict GFA limit to be exceeded, or to build within the standard rear setback, despite the Court acknowledging that the impacts upon neighbors at the rear of the site were very little.

The Court concluded that there was an inescapable conflict with the City Plan, and in respect of any grounds for over-riding the conflict, the Proposal was in a worse position, as it was effectively the first multi-unit dwelling in the relevant part of the Development Control Precinct and would have stood out in terms of character, and would be in a ‘class of its own, in bulk and scale’.


Appeal allowed and the Proposal refused.

What this decision means

The Court’s finding that the Proposal was ‘generally appropriate’ development but then rejecting the Proposal on the basis of non-compliance with technical requirements of acceptable solutions demonstrates a strict and narrow approach in interpreting planning scheme provisions can be applied to proposed developments, even in cases where the local government is supportive of a more relaxed approach, and performance based planning.