Australia: 34/13 Cox & Ors v Brisbane City Council & Anor [2013] QPEC 44 (Rackemann DCJ - 6 September 2013)

P&E Court Updates - September 2013

Environment and planning – development application – where the Co-Respondent sought a material change of use and preliminary approval for building work to facilitate a multi-unit dwelling for residential accommodation for people with special needs – where the submitter Appellants sought the refusal of the development application on grounds of an alleged over development of the site, conflict with the planning scheme and where the development was of a "generally inappropriate impact assessable" type and inconsistent with the criteria for approval of such a development, where the proposal compromised local amenity and where there was insufficient grounds to approve the development despite the conflict

Facts: This was a submitter appeal against the Council's decision to approve the Co-Respondent's development application for a development permit for a material change of use for multi-unit dwelling – residential accommodation for people with special needs (four units) and preliminary approval for building work (partial demolition and refurbishment of a house in a Demolition Control Precinct) and building work associated with the multi-unit dwelling. The subject site was located at 6 Hetherington Street, Herston. The front portion of the site contained an existing high-set pre-1946 house.

The Co-Respondent was a Queensland registered charity which provided family-style accommodation for those dealing with childhood cancer and the site was located near the existing children's hospital at Herston.

The proposal was to relocate the existing house forward to the Hetherington Street frontage, refurbish it, convert it into a unit and construct three new additional units on the rear portion of the lot. Communal open space was to be provided at the rear of the lot and private open space was to be provided as ground floor terrace or above-ground balconies.

All properties adjoining the subject site, save the one to the immediate south, had multi-until dwellings. A series of pre-1946 character houses existed to the south of the site.

The locality generally consisted of properties in the Character Residential Area and the Low-Medium Residential Area under the Brisbane City Plan 2000 (City Plan), however the built form also featured a mix of detached and multiple dwellings of varying densities and styles, including in the Character Residential Area.

The issues considered in the appeal were:

  1. Whether the proposal was an overdevelopment of the site, in particular, whether:
    1. the GFA and density of the proposal was excessive in its size and bulk and not consistent with the low density nature of the locality;
    2. bonuses based upon affordable housing or special needs provisions were unwarranted;
    3. the site area was too small;
    4. the open space was deficient;
    5. the setbacks were inadequate;
    6. the proposal conflicted with the Residential Design – Low Density, Character and Low Medium Density Code (LMR Code);
    7. the development was of a "generally inappropriate impact assessable" type and was inconsistent with the criteria for approval of such development in that:
      1. the siting, bulk, scale, size, density and setbacks of the proposed development did not accord with the reasonable expectations for the Area;
      2. the proposed development would detract from the amenity of the locality; and
    1. the proposed development compromised local amenity.
  1. Whether there were sufficient grounds to approve the application despite any conflict.

Decision: The Court held, in dismissing the appeal, that:

  1. The proposal did not conflict with the City Plan and represented impact assessable- generally appropriate development for the following reasons:
    1. The planning scheme was to be interpreted by reference to the words used in it, rather than an understanding of what was sought to be achieved when the predecessor to a particular provision was first introduced.
    2. Departure from an Acceptable Solution did not establish conflict with an applicable code. Despite not meeting the relevant Acceptable Solutions in relation to size and bulk, the proposal nevertheless was of a size and bulk consistent with the low density nature of the locality.
    3. Bonuses based upon affordable housing or special needs provisions were warranted.
    4. The open space provided was sufficient given the likely subdued and recuperative nature of its use.
    5. The setbacks were adequate.
    6. The proposal did not compromise local amenity, as:
      1. any reduction in daylight to open space and habitable rooms in adjacent development would not be significant.
      2. the design of the proposal and conditions as to screening would appropriately mitigate privacy impacts.
      3. the City Plan did not expressly guarantee the preservation of views or outlook across an open neighbouring backyard of small lots in the Character Residential Area and the loss of the ability of neighbours to look into and across the open backyard of the subject site did not result in an unacceptable impact on amenity and did not compromise local amenity.
      4. the additional number of vehicle movements was unlikely to have any undue amenity impact and the low generation rate and provision of four on –site spaces meant the proposal was unlikely to cause or significantly exacerbate any on-street car parking issues.
  1. If non-compliance with the performance criteria of the LMR Code had been found, then the conditions of the approval would have adequately mitigated potential impacts.
  2. If conflict with the LMR Code and the criteria for generally inappropriate impact assessable development had been found, then there would have been sufficient grounds to approve the development application notwithstanding the conflict. In particular, there was a need for the proposal. The Co-respondent was the only service provider of its kind and the demand for the units currently offered by the Co-Respondent was approximately 200% of the supply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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