Australia: 45/13 Econfence Pty Ltd v Brisbane City Council and Ors [2013] QPEC 60 (Andrews SC DCJ - 18 October 2013)

P&E Court Updates - October/November 2013

Developer appeal against deemed refusal of approval for a multi-unit dwelling in a Demolition Control Precinct and in a Low-Medium Density Residential Area – where proposal more than two storeys – where street predominantly pre-1946 houses – where five three bedroom units exceeded Acceptable Solutions for GFA and storeys – where front setback noncompliant with Acceptable Solution – where other multi-unit dwellings in the locality but only one in the street – whether compliant with performance criterion in relation to height bulk and build form - relevance of acceptable solutions

Sustainable Planning Act 2009, ss 314, 324, 326, 326(1)(b), 350, 350(1)(d), 350 (1)(d)(iv), 461

Facts: This was an appeal by the applicant developer against the Council's "deemed refusal" of a development application for a multi-unit dwelling development that comprised 5 townhouses over two existing lots at Fanny Street, Annerley.

The proposed plan changed over the course of the appeal. As a preliminary issue the court was required to determine whether the proposed development in its revised form constituted a minor change pursuant to s 350 of the Sustainable Planning Act 2009 (SPA).

The primary issues in the substantive appeal were alleged conflicts with Performance Criteria and Acceptable Solutions under the City Plan 2000 (City Plan). City Plan required that the development must "complement" the predominant scale, building setting and traditional elements of pre-1946 houses nearby in the street and have a size and bulk consistent with low to medium density of the locality.

The town planning joint expert report distilled the issues down to:

  1. privacy and amenity
  2. size, scale, building design and bulk;
  3. front boundary setbacks;
  4. traffic and parking;
  5. issues of precedent; and
  6. other sites that could be used for the development.

Conflicts were alleged with two codes under City Plan, the "Residential Design – Character Code" and the "Residential Design-Low Density, Character and Low-Medium Density Code".

A number of submitters joined the appeal. The submitters alleged that the proposal conflicted with the City Plan. Further, they argued that the developer did not discharge the onus to demonstrate how alternative solutions complied with performance criteria whilst still meeting the purposes of the relevant codes. They contended that the proposal would create parking and congestion problems and that it did not include extensive eaves and sunhoods as found in pre-1946 houses nearby, noting that 85% of Fanny Street was made up of pre-1946 dwellings.

Decision: The Court held, in approving the application and adjourning the appeal to allow Council to formulate conditions of approval:

  1. The changes to the development application fell within the definition of "minor change" in section 350(1)(d) of the SPA as they resulted in a development which was not a substantially different development, did not require referral to any additional referral agencies and did not change the type of development.
  2. Compliance with an Acceptable Solution was not necessary, however inconsistency with an Acceptable Solution may indicate the extent to which a proposal may be incompatible with the desired intent and purpose of the relevant code.
  3. Concerned members of the community who went to the trouble of making submissions were entitled to expect that if there was an appeal, the court would give them appropriate consideration.
  4. When assessing consistency with the Character Code for development size and bulk, it was appropriate to look beyond houses nearby in the street. Fanny Street was not representative of the locality, and the Performance Criterion required comparison of the development with things nearby, not just within Fanny Street. The building height and bulk would complement the predominant scale of the pre-1946 houses nearby in the street.
  5. The building setting would complement the traditional setting of pre-1946 houses nearby in the street despite crossovers, garage setting and set back not complying with Acceptable Solutions.
  6. The building design elements using lightweight materials, verandahs, a gable, overhangs and eaves achieved compliance with Performance Criterion of the Character Code requiring building form to complement traditional elements of pre-1946 houses. The skillion roofs with eave overhangs were an appropriate solution for a building in a demolition control precinct.
  7. Loss of city views was not a planning consideration in relation to privacy and amenity. Conditions should be imposed to require screening to prevent overlooking.
  8. No Performance Criteria was breached in relation to concerns about parking, congestion or other general traffic issues.
  9. In relation to the issue of an unacceptable precedent, this was not a matter that the Court may take into account. Each case must be assessed on its individual merits.
  10. It was not the Court's function to determine whether a better site existed for a particular proposal but rather simply whether approval should or should not be given for the particular use proposed on the particular site.
  11. It was not necessary to deal with the positive planning grounds asserted by the developer. The decision to approve would not conflict with the City Plan.

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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