Australia: 36/13 Rintoul & Ors v Brisbane City Council and Greengate Property Group (No 2) [2013] QPEC 47 (Robertson DCJ - 20 September 2013)

P&E Court Updates - September 2013

Submitter appeal against integrated retirement and aged care facility proposal in area zoned as Community Use Area CU2-Community Facilities – application of Heritage Code to area surrounding a Heritage Place – application of the Demolition Code to the relocation of a pre-1946 dwelling within a Demolition Control Precinct – amenity impacts of proposal on surrounding Residential Area – clearly established economic need for the facility.

Facts: On 19 October 2012 the respondent Council approved the Co-respondent Greengate Property Group's proposed development of an integrated retirement and aged care facility at Taylor Street, Woolloongabba.

The land was designated as 'urban footprint' under the South East Queensland Regional Plan and was zoned as 'Community Use Area CU2-Community Facilities' under the planning scheme (City Plan 2000). It was surrounded by pre-1946 housing in a 'Character Residential Area' and it included a locally listed heritage place (St Luke's Catholic Church) which was to be retained and a pre-1946 dwelling ('Edwards House') which was to be relocated on-site. Edwards House was located within a Demolition Control Precinct.

The impact assessable Development Application received a number of adverse submissions and on 15 November 2012, a number of those submitters appealed against Council's decision. In response to some of the issues raised by the appellants with respect to urban design and visual amenity, Greengate amended the plans. However, the appeal continued on the grounds of over-development and conflict with the planning scheme.

At the time of the hearing, the issues remaining were:

  1. The heritage value of the old St Luke's school;
  2. The proposal was an over development of the land in the sense that it would lead to an unacceptable impact on amenity of surrounding residents and on character and heritage values both on the land and in relation to the surrounding area.
  3. The proposed removal of the priest's house would not only comproise heritage and character values but would also have impacts on amenity on its new neighbour in Buranda Street.

The Appellants submitted that the proposal conflicted substantially with the planning scheme and there were not sufficient grounds to overcome the conflict.

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

  1. The long-term intention of the various previous iterations of the planning scheme had been to protect character and heritage values and this intention remained in the current scheme.
  2. The proposal was generally inappropriate on the land, as the proposed use was not within the definition of 'Community facilities' in the planning scheme, but rather would be considered 'Multi-unit dwelling.'
  3. Notwithstanding that, the proposal did not conflict with the East Brisbane / Coorparoo District – Local Plan and the proposed residential use was an acceptable land use considering the surrounding residential area.
  4. The 'Application' section of the Demolition Code was a guide as to the circumstances in which it was likely to be considered in assessing an application, where no specific Relevant Codes were identified in the Level of Assessment Table for Impact Assessable Development. Greek Orthodox Community of St George Brisbane v Brisbane City Council & Ors [2012] Q.P.E.L.R 314; Gladstone Ports Corporation Ltd v Queensland Heritage Council [2012] Q.P.E.C 9; Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] Q.P.E.L.R 447
  5. As St Luke's Catholic Church was entered in the Heritage Register as a Heritage Place, but the surrounding land on the site (including a former school) was not entered as a Heritage Precinct, only the church had heritage significance. Calvis v Brisbane City Council [2009] Q.P.E.L.R. 35
  6. It was not the Court's role to review the previous heritage decision with respect to the school.
  7. The proposal with respect to St Luke's Catholic Church did not conflict with the Heritage Place Code.
  8. The relocation of Edwards House (entirely within a Demolition Control Precinct) was a minor conflict with the Demolition Code, however the need established for the proposal was sufficient to overcome this issue.
  9. The overall development was of a density, bulk and scale compatible with the surrounding Residential Areas, it did not compromise local amenity and therefore it was not in conflict with the planning scheme.

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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