Australia: 23/14 Emaas Pty Ltd v Brisbane City Council & Ors; Pacitique 121 Pty Ltd & Anor [2014] QPEC 31

P & E Court Updates - June 2014

(Rackemann DCJ - 6 June 2014)
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Planning and environment – appeal against approval of a development application to facilitate the construction of a high-rise office and retail development – application for minor change – reduction from high-rise to mid-rise development – whether the proposed change resulted in a substantially different development

Facts: These were minor change applications in the course of two submitter appeals against Council's decision to approve a development application to facilitate construction of a high-rise office and shop development on land situated at Albert Street, with frontage to the Queen Street Mall, in the Brisbane CBD. There was an existing low-rise local heritage place on the land.

The original proposal was for a high-rise tower which retained the two level façade of the heritage building and featured:

  1. a lower basement level, predominantly for commercial storage and upper basement, with two retail tenancies;
  2. "street" level and first floor retail tenancies;
  3. 12 levels of office space above the retail levels; and
  4. two plant levels on top of the building.

The high-rise tower was to extend over a laneway and also into space that was occupied by an extension of development at 117 Queen Street (which was to be demolished).

The new proposal was for a mid-rise development, which still retained the two level façade of the heritage building and the street and first floor level retail tenancies, but featured only:

  1. one basement level of retail tenancies;
  2. four levels of office space above the retail levels; and
  3. one level for plant.

The new proposal did not extend into the laneway and did not involve re-development of the existing extension of 117 Queen Street. By comparison with the approved proposal, the new proposal:

  1. had a greatly reduced gross floor area (around 55%);
  2. was reduced in height, from 61.2m to 27.37m (around 55%);
  3. had reduced office space and one less basement level;
  4. had a different internal configuration of the floor levels, including the size of proposed tenancies, the number and location of lifts and the location of amenities; and
  5. had a different number of plant levels which were presented differently.

The determinative issue for the Court in determining whether the change was "minor" was whether the extensive redesign work in the new proposal resulted in a "substantially different development."

The Appellants submitted that the new proposal involved a change that was more than minor which required fresh assessment, particularly due to the differences in bulk and scale between the original proposal and the new proposal.

The Co-Respondent conceded that the changes were significant, but submitted that they did not result in a substantially different development. The two proposals were both multi-storey developments involving the redevelopment of a local heritage place with offices above retail and that the changes reduced impacts and addressed the concern in relation to encroachment on the laneway. It was contended that the change in height and gross floor area of the subject building was not dramatic in the context of the amount of floor space and the mix of building height in the CBD.

Decision: The Court held, in dismissing the applications:

  1. It was appropriate to have regard to the statutory guideline made under s. 759(1)(c) of the Sustainable Planning Act 2009.
  2. The dramatic change in built form in terms of scale, bulk and – largely as a consequence, appearance may support a conclusion that it was more than a minor change but did not necessarily or inevitably do so.
  3. It was relevant to consider the proposed change from a qualitative, as well as quantitative, perspective. Traditionally changes which had the potential to raise new or additional impacts not dealt with at the application stage were scrutinised more critically. That approach was consistent with the statutory guideline.
  4. An overly conservative approach to the statutory scope for change would be counter-productive. Proposed changes were assessed broadly and fairly, rather than pedantically.
  5. The ultimate question was not whether the new proposal was smaller or better per se, but rather whether it represented more than a "minor change" and whether it was a substantially different development.
  6. It was possible for a proposal to be both reduced in height and scale and to be described as substantially different from the original proposal.
  7. The new proposal was dramatically different in its bulk, scale and appearance and represented a different response to the site's physical and planning context. It was a substantially different development.

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