PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Roycorp Pty Ltd v Brisbane City Council [2025] QPEC 4	
PARTIES:	ROYCORP PTY LTD ACN 082 976 163
(Appellant) 
v
BRISBANE CITY COUNCIL
(Respondent)	
FILE NO/S:	2574 of 2023	
DIVISION:	Planning and Environment	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Planning and Environment Court, Brisbane 	
DELIVERED ON:	5 March 2025	
DELIVERED AT:		
HEARING DATE:	24 – 26 February 2025	
JUDGE:	Everson DCJ	
ORDER:	Appeal dismissed	
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of application for a multiple dwelling in the Community facilities (Health care purposes) zone 
PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – need	
CASES:	Abeleda v Brisbane City Council (2020) 6 QR 441
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council (2024) 261 LGERA 151
Elan Capital Corporation v Brisbane City Council [1990] QPLR 209
Fabcot Pty Ltd v Cairns Regional Council [2021] QPELR 40
Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153
Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPELR 309
Wilhelm v Logan City Council [2021] QPELR 1321
Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82	
LEGISLATION:	Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)	
COUNSEL:	M J Batty KC and R Yuen for the appellant
B D Job KC and J E Bowness for the respondent	
SOLICITORS:	K & L Gates for the appellant
City Legal for the respondent	
Introduction
[1]	This is an appeal against the decision of the respondent to refuse an application for a development permit for a multiple dwelling in respect of land situated at 141 Fursden Road, Carina (“the land”).
[2]	The appellant asserts that the proposed development offers compensatory community benefits, in that it includes an affordable housing component and that the development as a whole satisfies a need for multiple dwellings in this location.  The respondent contends that the proposed development is fundamentally non-compliant with its forward planning strategy evident in its planning scheme, City Plan 2014 (“the planning scheme”).
[3]	The proposed number of dwellings is 85 in the form of attached townhouses.  All issues relating to the design and scale of the proposed development have now resolved and the issues remaining for determination are confined to whether the land is appropriate for the proposed development from a land use perspective.
The land and the surrounding area
[4]	The land is located within the Community facilities zone (“the CFZ”), in the Health care purposes zone precinct.  It has an area of 1.357 hectares.  It is part of a larger parcel of similarly zoned land in an otherwise largely residential area.  The land adjoins a residential aged care facility to the west and the Brisbane State High School sporting facilities and ovals to the east.  To the north and south are detached dwelling houses.  There is an existing development approval for a retirement facility and health care services over the land.  The approved plans of development contemplate access for this development from the existing aged care facility to the west.  The appellant has sought and obtained two extensions to the currency period for this development approval, such that the currency period now runs to November 2028.  It is apparent that the appellant has also filled the land to comply with a condition of this development approval.
[5]	The site is vacant land, apparently having never been built on.
[6]	As noted above, the appellant proposes to provide an affordable housing component as part of the proposed development, despite the land not currently being included in any government scheme for the provision of affordable housing.  It offers the following condition in this regard:
D.	Affordable Housing	
1.	(a) All units within the approved development are to be rental properties for a minimum period of 10 years, from the date of registration of the survey plan for the development (Lease Period).

(b) Unless the State government’s build-to-rent scheme or affordable housing scheme applies to the approved development, within the Lease Period, at least 9 units within the approved development are to be leased at a rental amount (for each unit), which constitutes a 25% discount to market rent (as determined by a qualified valuer at the commencement of the lease) and does not exceed 30% of the tenant’s gross income (as at the commencement of the lease).	
[7]	Further, the appellant offers a condition that “the development approval will lapse unless the applied for material change of use has occurred within two years of the final relevant approval being given”.  This additional condition is offered in place of the standard six year currency period set out in the Planning Act 2016 (“PA”) for any part of a development approval relating to a material change of use.  This is offered, it is submitted, with a view to addressing the current strong demand for both additional and affordable housing in the Carina area.
Statutory assessment framework
[8]	Pursuant to the Planning and Environment Court Act 2016 (“PECA”), the appeal is by hearing anew, and the appellant must establish that the appeal should be upheld.  Section 46 of the PECA addresses the nature of an appeal and relevantly provides:
(2) 	The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if— 
(a)		the P&E Court were the assessment manager for the development application; and 
(b)		the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.
[9]	As the proposed development was impact assessable, s 45 of the PA provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the planning scheme.  It must also be carried out having regard to any matters prescribed by regulation, however none of these additional considerations assumed any significance in the hearing of the appeal.  Further, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
[10]	The Court in determining an appeal in respect of a development application is conferred a wide jurisdiction pursuant to s 60 of the PA which relevantly states:
(3)	To the extent the application involves development that requires impact assessment … the assessment manager, after carrying out the assessment, must decide— 
(a)	to approve all or part of the application; or 
(b)	to approve all or part of the application, but impose development conditions on the approval; or 
(c)	to refuse the application.
In undertaking this task, the observations of Mullins JA in Abeleda v Brisbane City Council are instructive:
[42]	…The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b).  The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.
[43]	In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) of the SPA, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.  The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application.  The weight given to each of the factors is a matter for the decision-maker in the circumstances…
Mullins JA further observed in Wilhelm v Logan City Council:
[77]	…The change in the decision-making regime has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of land.
[11]	The applicable principles for the construction of planning documents were recently considered in Chiodo Corporation Operations Pty Ltd v Douglas Shire Council, having regard to the previous observations of Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council.  Flanagan JA observed:
[83]	In Zappala, Morrison JA set out the applicable principles relevant to the interpretation of planning schemes.  In essence, this is a repetition of the applicable principles of statutory interpretation generally, with particular emphasis on the text of the provision and the need to consider the provision in context.  His Honour did, however, observe that there may be some room to ensure planning schemes are read in a way which is reasonable and balanced…
The relevant provisions of the planning scheme
[12]	The following provisions of the planning scheme are relevant to the determination of this appeal.  
[13]	Firstly, s 1.3.2 states that “Notes” are part of the planning scheme.  Thereafter it is illustrated that a Note will follow the text to which it relates.
[14]	The hierarchy of assessment benchmarks is addressed in s 1.5:
Where there is inconsistency between provisions in the planning scheme, the following rules apply:

a. 	the strategic framework prevails over all other components, to the extent of the inconsistency for impact assessment; 
…
e.	zone codes prevail over use codes and other development codes, to the extent of the inconsistency…
[15]	Relevantly, s 3.1 contains an overview of the Strategic framework in the following terms:
1.	The strategic framework sets the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme.
…
3.	For the purpose of describing the policy direction for the planning scheme, the strategic framework is structured in the following way:
a.	the strategic intent;
b.	the following 5 themes that collectively represent the policy intent of the scheme:
…
ii.	Brisbane’s outstanding lifestyle;
…
c.	the strategic outcomes proposed for development in the planning scheme area for each theme;
d.	the elements that refine and further describe the strategic outcomes;
e.	the specific outcomes sought for each or a number of elements;
f.	the land use strategies for achieving each of these outcomes.
4.	Although each theme has its own section, the strategic framework in its entirety represents the policy intent for the planning scheme.
[16]	The strategic outcomes are set out in s 3.4.1 and include the following:
1.	The strategic outcomes for an outstanding lifestyle city are:
…
p.	Brisbane has a broad range of community facilities that support the community’s recreational, cultural and social activities, promote the physical, cultural and social wellbeing of the community, and are located predominantly in centres and Growth Nodes on Selected Transport Corridors.
…
2.	The strategic outcomes for Brisbane’s outstanding lifestyle comprise the following elements:
…
d.	Element 2.4—Brisbane’s community facilities, services, open space and recreation infrastructure.
[17]	Thereafter relevant specific outcomes and relevant land use strategies are:
Specific outcomes	Land use strategies	
…	…	
SO2
Brisbane’s existing and planned community facilities and services are protected and appropriately located.	…	
	L2.2
Development protects the land allocated for community facilities such that if uses cease:
a. where the community purpose is still required by the community, it is retained by integration with the new use;
b. the land is re-used for another community purpose needed by the local community;
c. the land is only to be used for another purpose where it can be shown that the use has relocated or is absolutely no longer required by the Brisbane community.	
	…	
	L2.5
Development of non-community facilities and services on the site are complementary and ancillary to the community facilities and services and do not compromise the ability or capacity of the facilities and services to be delivered or operate.	
[18]	Section 5.3.3 states that code assessable development is to be assessed against all assessment benchmarks identified in the assessment benchmarks column and that code assessable development that complies with the purpose, overall outcomes and performance outcomes or acceptable outcomes of the code complies with the code.  Thereafter, there is a Note in the following terms: “Development is to consider the cumulative outcomes and give weight to all aspects of the code.”  
[19]	A number of provisions of the Community facilities zone code (“CFZC”) are relevant to the issues in dispute in this appeal.  They are:
1.	The purpose of the community facilities zone is to provide for community-related uses, activities and facilities, whether publicly or privately owned, including, for example:
a.	educational establishments; and
b.	hospitals; and
c.	transport and telecommunication networks; and
d.	utility installations.
…
2.	The purpose of the zone will be achieved through overall outcomes for:
a.	zone role;
b.	development location and uses;
…
d.	the following zone precincts:
…
v. Health care purposes zone precinct;
…
3.	Zone role overall outcomes are:
a.	Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular:
i.	Theme 2: Brisbane’s outstanding lifestyle and Element 2.4 – Brisbane’s community facilities, services, open space and recreation infrastructure;
…
4.	Development location and uses overall outcomes are:
a.	Development provides for the continued use of the land for community facilities identified as appropriate for the particular Community facilities zone precinct.
b.	Development enables community facilities to play a key role in developing and maintaining community networks, services and community health and wellbeing and contributes to the city being well served with community buildings, facilities, spaces and activities meeting the diversity of community needs.
c.	Development provides for both privately owned community facilities and community facilities that are owned or operated by federal, state or local government.
d.	Development ensures that where a use within a Community facilities zone precinct ceases and is no longer fulfilling the intended purpose of the relevant zone precinct, that it is replaced with another community facility.
e.	Development that limits the ongoing operation and expansion of an existing community facility or prejudices the establishment of a new community facility appropriate to the relevant zone precinct is not accommodated.
f.	Development in a particular zone precinct is predominantly for community facilities that are envisaged in that zone precinct, unless an appropriate adaptation of the premises for another community facility use can be demonstrated.
g.	Development improves the use of existing community facilities infrastructure to ensure accessibility and multiple uses.
Note—Where a community facility ceases or redevelopment occurs, the limited number of sites within the Community facilities zone must be protected for public rather than private use.  Not every site within the Community facilities zone is appropriate for every use within the community facilities activity group, however, where a use that is described as suitable within a particular Community facilities zone precinct ceases, its replacement may be another community facility that would typically be located in a different Community facilities zone precinct.  For example, a premises formerly used as a school, and included within the Education purposes zone precinct, may be transitioned to accommodate an arts and or cultural services hub, which would usually be included within the Community purposes zone precinct.
h.	Development for a use not anticipated in the relevant zone precinct may be accommodated where it is demonstrated that the proposal is safe, well designed, integrated with the surrounding area and offers compensatory community benefits.
…
j.	Development is supported by complementary uses of an appropriate scale and purpose which directly serve the employees and activities of the relevant zone precinct and do not compromise the commercial, retail or community service role and function of nearby centre activities.
…
10.	Health care purposes zone precinct overall outcomes are:
a.	Development provides premises with day clinic and administrative functions that involve medical, paramedical, alternative therapies and general health care treatment for the local community.
b.	Development for purpose-built premises for residential occupation by the elderly, young or people with disabilities, such as a residential care facility or a retirement facility, together with ancillary convenience activities and allied services provided to cater for their particular needs, may be accommodated.
[20]	There are no performance outcomes or acceptable outcomes for the CFZC.

The issues in dispute
[21]	The remaining issues for determination in this appeal are whether the proposed development is an appropriate use of the land, firstly, having regard to the assessment benchmarks set out above and, secondly, various relevant matters which have been identified by the parties.  The relevant matters are essentially:
1.	an alleged need for the proposed development;
2.	an absence of unacceptable impacts with respect to traffic, visual amenity and character as a consequence of the proposed development; 
3.	the fact that the land is well situated for the proposed development in terms of accessibility to services, infrastructure and the like;
4.	that the proposed development positively contributes to housing diversity and offers housing choice;
5.	that the proposed development offers affordable and flexible rental housing in the midst of a housing crisis; 
6.	that the land has been vacant for many years and is therefore underutilised;
7.	that the proposed development responds to other strategic planning objectives such as providing new housing opportunities within the existing urban area, providing housing choice, providing inter-generational housing options and allowing people to live in close proximity to places of work.
Does the proposed development comply with the planning scheme?
[22]	As a starting point, it is important to reflect upon the observations of White J in Grosser v Council of the City of Gold Coast, that the “proper approach of the Planning and Environment Court … to matters of planning policy has long been recognised as one of restraint”.  Thereafter, her Honour quoted the famous passage from the judgment of Quirk DCJ in Elan Capital Corporation v Brisbane City Council that it was not the function of the court to substitute planning policies, which as a consequence of evidence given in a particular appeal may seem more appealing, for those which a local government has adopted.
[23]	As noted above, the respondent asserts that the proposed development is fundamentally non-compliant with an important and clearly expressed forward planning strategy in the planning scheme that land within the CFZ is to be protected for community facilities uses into the future.  Conversely, the appellant asserts that the planning scheme permits much more flexibility and that support for the proposed development can be found within the provisions set out above.
[24]	When regard is had to s 3.1, it is clear that in ascertaining the policy direction of the planning scheme, the strategic framework is to be read as a whole.  This is because as is stated in paragraph 4. “the strategic framework in its entirety represents the policy intent for the planning scheme”.  Thereafter, the relevant Strategic outcome 1.p. is so broad as to not, of itself, constitute a meaningful assessment benchmark.  Thereafter, SO2 is clear in its terms that “Brisbane’s existing and planned community facilities … are protected…”.  It is true, as the appellant asserts, that both land use strategies L2.2 and L2.5 deal with circumstances which are not relevant to the proposed development.  The former circumstance is the protection of land allocated for community facilities when a use ceases.  That does not arise here as the land is vacant and appears to have always been vacant.  The latter circumstance involves the development of complementary and ancillary non-community facilities on CFZ land.  Again, this is not relevant to the circumstances before the Court as the proposed development is to utilise the entirety of the land.  Nonetheless, each of the land use strategies contemplates the ongoing use of land allocated for community facilities remaining available for use for community facilities.
[25]	Thereafter, the CFZC contains overall outcome 3.a. which states that development in the zone supports the implementation of the policy direction set out in the Strategic framework and in particular Theme 2 and Element 2.4.  As a consequence of s 5.3.3 paragraph 4. the proposed development complies with the CFZC if it complies with the purpose and overall outcomes of the CFZC.
[26]	Turning then to the identified overall outcomes set out above, the proposed development does not comply with overall outcome 4.a. which “provides for the continued use of the land for community facilities identified as appropriate for the particular Community facilities zone precinct”.  The development appropriate for the Health care purposes zone precinct is set out in s 6.2.6.1, paragraph 10.  The only identified residential uses are for occupation by the elderly, the young or people with disabilities, such as a residential care facility or a retirement facility.  Accordingly, the proposed development is inconsistent with the overall outcomes for the Health care purposes zone precinct as well. 
[27]	Overall outcomes 4.b. and 4.c. of the CFZC are broadly worded but it is clear that they assume development enabling community facilities in the former and providing for community facilities in the latter assessment benchmark. The proposed development will do neither.  Overall outcome 4.d. does not apply as the land is not and has not been subject to a use.
[28]	As the proposed development would prejudice the establishment of a new community facility appropriate to the relevant zone precinct on the land, it does not comply with overall outcome 4.e. of the CFZC.  Further, as overall outcomes 4.f. and 4.g. are expressed in the context of development providing for or enhancing community facilities, the proposed development again does not comply with either of these overall outcomes.  This is confirmed when the accompanying Note is read after overall outcome 4.g. which addresses flexibility within the context of the CFZ and the relevant “community facilities activity group”.  Overall outcome 4.j. does not appear relevant to the issues to be determined in this appeal.
[29]	It is overall outcome 4.h. of the CFZC which the appellant contends allows for the proposed development in circumstances where it is submitted that it operates to the exclusion of the other overall outcomes.  It states: 
Development for a use not anticipated in the relevant zone precinct may be accommodated where it is demonstrated that the proposal is safe, well designed, integrated with the surrounding area and offers compensatory community benefits.
[30]	The respondent submits that reading this overall outcome in the context of the preceding overall outcomes, it is clear that the reference to “a use not anticipated in a relevant zone precinct” is a reference to a community facility use that is anticipated in a different zone precinct of the CFZ.  In this regard, the wording in overall outcome 4.e. that development that prejudices the development of a new community facility appropriate to the relevant precinct is “not accommodated” is juxtaposed with the wording in overall outcome 4.h. set out above.  
[31]	The appellant conversely submits that there is no restriction on the “use” stated in this provision and that it includes the proposed development.  The appellant argues that the respondent’s interpretation of overall outcome 4.h. is too restrictive as the circumstance is already provided for in the more generally worded overall outcome 4.d..  In response to this argument, I observe that, firstly, overall outcome 4.d. only covers the circumstance where a use ceases, not where a new use starts on a vacant site such as on the facts before me.  Secondly, overall outcome 4.d. does not deal with the accommodation of uses from different zone precincts.
[32]	I find that when the Strategic framework is read in its entirety, and the CFZC is read as supporting the implementation of this policy direction, it is clear that all uses contemplated for the CFZ are to be community facilities or ancillary uses.  The planning scheme permits some flexibility in the location of community uses between the respective zone precincts, however.  I therefore find that overall outcome 4.h. is not referring to a use such as the proposed development when this provision is considered in the context of both the surrounding overall outcomes and the Strategic framework as a whole.
[33]	If I am wrong in this regard, it is necessary to weigh the “compensatory community benefits” which the appellant asserts justify the proposed development to give effect to the appellant’s interpretation of overall outcome 4.h.
[34]	Two economists gave evidence, Mr Stephens on behalf of the appellant and Mr Brown on behalf of the respondent.  They both acknowledged a shortage of housing supply in Brisbane which Mr Stephens described as “a key public policy priority across all levels of Government as a response to strong rates of population growth and housing affordability issues in both Queensland and Australia”.  However, they both agreed that this demand is capable of being met by the planning scheme in its present form.  Conversely, they both found an absence of need for various community facilities in the Carina, there being no need for additional retirement facilities and residential care facilities in the study area.  There was disagreement about the extent of the need for additional childcare facilities and health care facilities.  Both Mr Stephens and Mr Brown acknowledged that there was a community benefit associated with the proposed development delivering additional housing, with Mr  Brown emphasising that the community benefit related to the affordable housing component of the proposed development.
[35]	Two planners also gave evidence, Mr Buckley for the appellant and Mr Perkins for the respondent.  Again, both acknowledged the community benefit in the provision of housing, and in particular affordable housing, as a consequence of the proposed development.  In providing this community benefit it is important to acknowledge that, as Mr Brown put it in the joint expert report on need:
Vacant Community Facilities zoned land in the Brisbane LGA is relatively limited and difficult to find.  Once a Community Facilities site is developed for commercial purposes it is unlikely that it would ever become available for such uses in the future.  
Subsequently, Mr Brown emphasised the need to adopt a long-term view when seeking to accommodate future community facilities.  Mr Perkins also emphasised the need for long-term protection of land in the CFZ, and stressed the importance of it for the wellbeing of the people of Brisbane, it being a finite and valuable resource which is difficult to replace once lost.  Even Mr Buckley conceded: 
In principle it is accepted that land zoned for a community facilities purpose might ultimately fulfil a future unmet need, and there is some planning support for a strategy to hold the line in anticipation of the market and the need coinciding.
[36]	Mr Buckley further acknowledged there are some “strong statements” in the planning scheme which can be interpreted as requiring land in the CFZ to be retained for that zoned purpose.  He was however of the view that, in circumstances where the land had remained vacant “for the long life of two planning schemes”, it was unlikely to be required for its intended purpose and that the proposed development would respond “to a strong need for well-located housing now and into the immediate future”.
[37]	Even on the appellant’s construction of overall outcome 4.h., I am of the view that the compensatory community benefits of providing housing, including approximately 9 affordable dwellings in the context of 85 dwellings on the land, does not outweigh the permanent alienation of the land for the provision of community facilities in the future.  Community facilities zoned land is a finite resource in a growing city and it is unsurprising that the planning scheme seeks to protect it from other forms of development.  The utilisation of the land for the proposed development by the appellant smacks of opportunism in circumstances where it is already the subject of an approval for a community facility contemplated by the zoning and certain steps to prepare it for development have already been undertaken.  The proposed development seeks to provide affordable housing, but this component is not part of a coordinated government scheme.  The compensatory community benefits associated with the proposed development are to be weighed in circumstances where there appear to be numerous opportunities to provide housing, including affordable housing, in appropriately designated areas in accordance with the planning scheme.  No effort to secure any such appropriately designated land appears to have been made by the appellant. 
Relevant matters
[38]	The first of the relevant matters identified above is need.  Where this term is used without qualification in a planning context, it is interpreted as a reference to planning need which has two elements to it.  Firstly, there must be a latent unsatisfied demand.  Secondly, it must either not be being met at all or adequately met by the planning scheme in its current form.  This approach was confirmed as the correct approach by the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council.  As noted above, the difficulty for the appellant arises with respect to the second limb of the test.  There is clearly a strong demand for additional housing, including affordable housing, not only in Carina but also Brisbane and indeed Australia as a whole.  However, both Mr Stephens and Mr Brown acknowledge that this need could be adequately met by appropriately zoned land in accordance with the planning scheme in its current form.  There is therefore no warrant for justifying the proposed development on the basis of planning need where it is in significant conflict with the provisions of the planning scheme identified above.
[39]	Similarly the lack of unacceptable traffic, character and amenity impacts, the fact that the land is well-suited for residential development aside from its planning designation, and the benefits that would flow from using the land for the provision of more housing, do not justify the permanent loss of the land for future use for community facilities.
Conclusion
[40]	The proposed development, although offering community benefits by the timely provision of more housing, including an affordable housing component, cannot be justified in circumstances where it will result in the permanent loss of Community facilities zoned land which the planning scheme requires be protected for future use for the benefit of the whole community.
[41]	The appeal is dismissed.