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(Wall QC DCJ - 11 September 2014)
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Environment and Planning – Town Planning – whether building more than 8 storeys high for the purposes of Brisbane City Plan 2000

Facts: The preliminary point decided in this application was whether there were 8 storeys, or 9 or 10 storeys in a building proposed to be built at 2-6 Maryvale Street, Toowong.

The Brisbane City Council and the developer (the Respondents) maintained that the proposed building was 8 storeys and Code assessable. The Applicant maintained that it was 9 or 10 storeys and impact assessable. A building above 8 storeys would have been impact assessable.

The dispute centred around the definition of 'storey' in Brisbane City Plan 2000 (City Plan) and how the bottom and top areas of the proposed building should be characterised.

The bottom area was designed for stormwater management and to accommodate overland stormwater flows which precluded a basement carpark. Its purpose was achieved by constructing the building on concrete piles creating an area between natural ground level and the underside of the ground floor or CP1 Level floor slab. The area was not enclosed by walls, did not include any habitable rooms or spaces and the area was not trafficable for pedestrians or vehicles.

The top area consisted of a communal area (roof deck with a pergola) and plant deck. There was no roof directly above these areas. There were rooves on the lift shaft and stairwells. The communal area and plant deck would be on a floor slab but there would not necessarily be a slab of other parts of this level.

The Applicant's case was that each area was 'a space within (the) building' and therefore a storey (as defined by City Plan). The bottom area commenced at natural ground level and that level is a floor level and there is a floor level 'next above it'. The top area was determined by reference to the fact that the communal area and plant deck necessarily have a 'floor level' which is the 'floor level next above' the Level 7 floor slab and the only way that can be accommodated by the definition is as the start of another storey. Alternatively there is a roof 'above' the area. 'Above' does not mean 'directly above' but 'higher than' and the rooves capping the lift shaft and stairwells were higher.

The Respondents contended that neither area is a storey because they were not 'space(s) within (the) building'. The bottom area was a space below the building and the top area was a space above the building.

Decision: The Court held:

  1. The area below the building was not a 'space within (the) building' for the purposes of the definition of 'storey'. It was a space below and outside the building between natural ground level and the underside of the ground level slab of CP1. It was an overland flow path for stormwater. It was not a space 'between one floor level and the floor level about it'.
  2. The top area had no floor level, ceiling or roof above it and was not a 'space within (the) building'; rather it was an area on top and outside of the building. The pergola did not reinforce the conclusion that the area was a space within the building. It sat on top of the building, not within it and structurally the pergola did not amount to a ceiling or roof above the area. The fact that the communal area and plant deck had a floor level above the Level 7 floor slab did not overcome the absence of a floor level above the level on which they were situated.