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 parking
Sustainable Planning Act 2009 (Qld), ss 326, 462, 495
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 Street, Milton.
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 vicinity.
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 planning scheme.
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 the conflict.
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 appeal, that:
- 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 scheme.
- There would be amenity impacts associated with the proposed development, however these could be addressed by appropriate conditions.
- 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 intensified.
- As a consequence of the inadequate provision of parking spaces in the proposed development, the appeal was allowed.
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