Environment and planning – submitter appeal –
hotel development including short term accommodation –
whether development conflicted with planning scheme – whether
sufficient grounds existed to justify approval despite conflict
– impacts on amenity – inadequacy of on-site
Sustainable Planning Act 2009 (Qld), ss 326, 462,
Facts: This was a submitter appeal against
Council's decision to approve a development application for a
development permit for a material change of use for a Hotel
including Short Term Accommodation on land located at McDougall
The proposed development was for 132 rooms in a tower building
extending 47 metres above natural ground level. Already existing on
the site was a non-residential hotel comprising three storeys and a
restaurant and function centre.
The Appellants were owners of home units in Coronation
Residences, a ten storey residential building located between the
site of the proposed development and Coronation Drive.
The Appellants argued that the proposed development was in
conflict with the Milton Local Plan under Council's City
Plan 2000 and that it was not consistent with the intent of
the Office Precinct in which the site was located. In addition,
they contended that the proposal conflicted with the Short Term
Accommodation Code because of its density, bulk, scale and likely
impacts on amenity and that it conflicted with the Residential High
Density Code. The Appellants also alleged that the proposed
development would have unacceptable impacts on their amenity
principally as a consequence of loss of views, shadowing and
traffic impacts owing to the demand for parking in the
The Acceptable Solutions for the Office Precinct in the Milton
Local Plan Code provided for a maximum building height of 4
storeys. It was submitted by the Appellants that the new draft
planning scheme for Brisbane reaffirmed Council's intention
that the subject site be used for office development with a maximum
height of four storeys and that a decision to approve the proposed
development would cut across the relevant provisions of the new
The Respondent and the Co-Respondent contended that the proposed
development was not in conflict with City Plan and that if it was
there were sufficient grounds to approve the application despite
In relation to the parking issue, the proposal included 56
parking spaces. In giving evidence, the traffic expert engaged by
the Co-Respondent conceded that the likely demand for parking
spaces attributable to the proposed development was up to 70.
Decision: The Court held, in allowing the
A conflict with the planning scheme must be clearly identified
and non-compliance with an Acceptable Solution did not necessarily
indicate conflict between the proposed development and the planning
There would be amenity impacts associated with the proposed
development, however these could be addressed by appropriate
The proposal conflicted with the Milton Local Plan in terms of
building size and bulk. There was also a conflict with the intent
of the High Density Residential Area designation in that the
development would exceed 10 storeys.
The designation of the subject site in the Office Precinct of
the Milton Local Plan was anomalous as it failed to take into
account not only the long standing hotel use on the site but also
the presence of Coronation Residences itself which shared the
designation. Further, development which had been constructed and
which was approved in the vicinity were such that the restrictions
on the subject site, as a consequence of not only the Milton Local
Plan but also the intent of the High Density Residential
provisions, had been overtaken by events.
These grounds in favour of the application as a whole were, on
balance, sufficient to justify approval of the proposed development
but for inadequate provision of on-site parking.
No weight should be given to the draft planning scheme.
The proposed development was seriously in conflict with
Performance Criterion 7 of the Transport Access, Parking and
Servicing Code. The existing hotel and restaurant on the subject
site already generated a demand for parking which was not always
accommodated within the existing facility. The proposal represented
bad planning in circumstances where the parking situation in Milton
was only going to deteriorate as development in the area
As a consequence of the inadequate provision of parking spaces
in the proposed development, the appeal was allowed.
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