The Queensland Planning and Environment Court clarifies the distinction between challenging the merits of a development approval and establishing jurisdictional error.
The Queensland Planning and Environment Court has delivered an important reminder about the limits of challenging development approvals in Allen v Brisbane City Council and Ors [2026] QPEC 36.
In a decision delivered on 7 October 2026, McDonnell DCJ dismissed an originating application seeking to invalidate Brisbane City Council’s approval of a dwelling house at 18 Cochrane Street, Paddington. The applicant, Reece Justin Allen, alleged that Council had committed jurisdictional error in assessing the proposal under Version 34 of the Brisbane City Plan 2014.
Background: A dwelling house exceeding acceptable height outcomes
On 12 February 2026, Council approved a development application by Hayward Developments Pty Ltd for a dwelling house on land owned by Ashton INT Pty Ltd at 18 Cochrane Street, Paddington.
The proposal exceeded the acceptable-outcome limits of three storeys and 9.5 metres in building height. The applicant challenged the approval, alleging that Council had failed to properly assess the development against the applicable planning scheme provisions.
The grounds of challenge included alleged errors in the interpretation of building height and storey, the treatment of the Queensland Development Code (QDC), the assessment of visual catchment and neighbourhood character, and the consideration of setbacks, privacy, amenity and cut and fill.
The applicant sought declarations that the approval was invalid or liable to be set aside, together with an order remitting the application to Council for reconsideration.
The Court rejected the challenge.
Key findings
1. Judicial review is not a merits appeal
A central theme of the judgment was the distinction between an unlawful decision and a planning decision with which an objector disagrees.
Drawing on established administrative law principles, the Court emphasised that the question was not whether Council had made the best or wisest planning decision, but whether it had exercised its statutory power lawfully.
The applicant’s complaints about the proposed building’s height, bulk, scale, siting and visual impact did not, without more, establish jurisdictional error. The Court found that the relevant planning issues had been addressed in the material before Council and that the applicant had not demonstrated a reviewable error of law.
For adjoining owners and other objectors, the decision highlights the importance of identifying a specific legal error rather than simply seeking to reargue the planning merits of an approval.
2. An assessment workbook is not necessarily the decision-maker’s reasoning
An important aspect of the judgment concerned the status of Council’s Assessment Workbook.
The applicant relied on the workbook to argue that Council had failed to consider relevant matters and had relied on irrelevant considerations. However, the Court distinguished between the material available to the delegate, the delegate’s reasoning process and the actual decision.
The workbook was material before the delegate: it was not itself the delegate’s reasons.
Council had issued a statement of reasons confirming that the development could comply with the applicable assessment benchmarks, subject to conditions. The applicant had not challenged the adequacy of those reasons.
The Court therefore rejected the proposition that omissions or statements in the workbook could automatically be attributed to the delegate as evidence of legal error.
3. Exceeding an acceptable outcome does not automatically require refusal
The decision also illustrates the distinction between acceptable outcomes and performance outcomes under a planning scheme.
Under s 60 of the Planning Act 2016 (Qld), a code assessable development application may be approved despite non-compliance with some assessment benchmarks. The statutory framework also permits approval where compliance can be achieved through conditions.
In this case, the dwelling exceeded the acceptable outcome limits for height and storeys. However, Council had assessed the proposal against the relevant performance outcomes and concluded that it could comply with the applicable assessment benchmarks, subject to conditions.
The Court was not satisfied that this approach disclosed jurisdictional error.
The decision does not mean that height limits or acceptable outcomes can be disregarded. Rather, it confirms that failure to meet an acceptable outcome does not, by itself, establish that a development approval is unlawful. The relevant assessment benchmark and the statutory decision-making framework must be considered as a whole.
4. The planning scheme’s definitions govern building height
The applicant also challenged Council’s interpretation of “building height”, “storey” and “ground level” under the Brisbane City Plan 2014.
The Court rejected the argument that the expression “ground level of the building” displaced the planning scheme’s defined meaning of ground level.
The relevant definition referred to the level of the natural ground or, where lawfully changed, the lawfully changed level. The Court held that the words “of the building” identified the subject matter and location of the measurement: they did not alter the defined meaning of ground level.
The Court also declined to infer that Council had applied an incorrect definition simply because the decision-making material did not expressly reproduce the definitions.
For planning practitioners, the decision reinforces the importance of interpreting defined terms according to the text and context of the applicable planning scheme, while recognising that a judicial review applicant must establish an actual error in the decision-maker’s approach.
5. Visual impact, amenity and neighbourhood character were considered
The applicant further alleged that Council had failed to identify the relevant visual catchment and properly assess the development’s impact on the surrounding hillside and streetscape.
The Court found that the material before the delegate included architectural advice, revised plans, landscape information, images of surrounding development and material addressing the visual catchment and local context.
The assessment material also addressed the proposal’s building form, height, scale, setbacks, topography, landscaping, privacy, natural light and other amenity considerations.
The Court concluded that the relevant issues had been considered. The applicant’s disagreement with Council’s qualitative assessment did not establish an error of law.
The decision demonstrates the importance of distinguishing between a failure to consider a mandatory matter and a disagreement about the weight given to that matter or the planning judgment ultimately reached.
Materiality remains important
The Court also considered whether any alleged error would have been material to the approval.
Applying the principles discussed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, the Court observed that jurisdictional error ordinarily requires a realistic possibility that the decision could have been different had the error not occurred.
The Court was not persuaded that Council had committed an error. It further concluded that the alleged errors, even taken at their highest, did not demonstrate the required materiality.
This reinforces that identifying a potential imperfection in an assessment process is not necessarily enough to invalidate a development approval.
Conclusion
The decision confirms that a proposal may exceed acceptable outcome limits without its approval necessarily being unlawful, provided the application is assessed in accordance with the applicable statutory framework.
For anyone considering a challenge to a development approval, the key question is not simply whether the development should have been approved. It is whether the decision was made according to law.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.