Australia: 52/13 Friend v Brisbane City Council [2013] QPEC 77

P&E Court Updates - November/December 2013

Council approved mixed use development in Woolloongabba – submitter Appellant raised issues of conflict with City Plan around building height, scale and density and heritage issues – unacceptable amenity impacts in regard to overlooking and shadowing – whether State Government PDA adjacent to the site was relevant in assessment process – weight to be given to draft planning scheme and Temporary Local Planning Instrument promulgated since approval – whether Woolloongabba Centre Neighbourhood Plan provisions had been overtaken by events – whether provisions were ambiguous, inconsistent and / or anomalous

Economic Development Act 2012
Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990
Planning and Environment Court Rules 2010
Sustainable Planning Act 2009
, ss 314, 314(3)(b), 324(2), 326(2), 339, 439(2), 495(1), 495(2)(a)
Urban Land Development Act 2007

Facts: This was a submitter appeal against Council's approval of a development application for a development permit for a multi-unit dwelling, short-term accommodation, hotel and centre activities (shop, office, restaurant) and a development permit for reconfiguration of a lot (18 lots into two).

Located on the site was the locally listed heritage place, the Chalk Hotel. The intent of the reconfiguration application was to separate the Chalk Hotel and adjoining building from the rest of the site, which would then be developed for a mixed use development. The mixed use development would involve three towers containing residential units and non-residential uses. The three towers were to be 20, 18 and 12 storeys in height respectively.

Surrounding land uses were detached housing, multi-unit dwellings and an office and shop.

The subject land was located predominantly within the Multi-Purpose Centre – MP2 (Major Centre) area designation under Brisbane City Plan 2000 (City Plan); however part of the site containing the Chalk Hotel was located within the MP3 (Suburban Centre) designation. The primary assessment provisions were contained in the Woolloongabba Centre Neighbourhood Plan (Neighbourhood Plan).

The land was located within the Urban Footprint of the South –East Queensland Regional Plan 2009 – 2031 (SEQRP). While the SEQRP had no requirements specific to the site or proposal, it did encourage infill development and urban consolidation and envisaged uplift in development intensity in inner city areas and along major corridors.

The proposal was impact assessable and attracted 199 submissions, the majority opposed to the proposal. Several submitters commenced the appeal; however at the time of the appeal only one submitter remained as an active participant.

Since the time the development application was lodged, a new draft planning scheme had been released by Council and the Temporary Local Planning Instrument 01/13 (TLPI), which was designed to facilitate the protection of residential buildings constructed prior to 1911, had taken effect. Three houses on the site which were proposed to be removed as part of the proposal, fell within the scope of the TLPI. Importantly, the TLPI stated that it did not apply where a current approval permitted the demolition of buildings.

Also of relevance in the appeal was a 10 hectare site located directly opposite the subject site on Stanley Street, which was under the control of the State government as the Woolloongabba Priority Development Area (PDA).

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

  1. The Neighbourhood Plan was not drawn with the precision of an Act of Parliament. Where planning provisions were worded vaguely or flexibly and / or where there were no clear or definitive criteria by which the Court could determine whether there was a conflict between a proposal and the relevant planning scheme, the Court had great width in the decision making process.
  2. It was well-established that in performance-based schemes, the Acceptable Solutions did not prescribe limits or were not proscriptive of other solutions which may satisfy the outcomes contemplated by the Performance Criteria.
  3. No conflict could be said to have arisen with respect to heritage issues.
  4. The TLPI should not be given any weight in the assessment process. There was an approval in place which contemplated the removal of the subject houses, although it had yet to take effect because of the appeal.
  5. The Court was not persuaded that the provisions of the Neighbourhood Plan had been overtaken by events. However, it would be unusual, in a planning sense, if a planning area such as the PDA, in the same suburb as the site and separated only by Stanley Street, would not be relevant in assessing the proposal, particularly where height was such an important issue in the case. The Neighbourhood Plan contained provisions that looked out, as it were, to surrounding areas.
  6. With respect to size and bulk, there was no plain conflict with City Plan identified.
  7. No plain conflict with City Plan was identified. Any highly technical and minor conflicts with the Neighbourhood Plan were of such a nature as to be irrelevant.
  8. The Court would have been persuaded that there were sufficient grounds to approve notwithstanding any conflict.

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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