Australia: 33/15 Aspinall & Ors v Brisbane City Council [2015] QPEC 31

Queensland Planning and Environment Court Updates – July 2015

(Horneman-Wren SC DCJ - 25 June 2015)
Aspinall & Ors v Brisbane City Council [2015] QPEC 31

Environment and Planning – environmental planning – planning schemes and instruments – Queensland – generally – where proposed refurbishment of disused aged care facility to construct a multi-unit residential dwelling – where neighbouring residents oppose the proposed developments – where appeal against decision of City Council to approve proposed developments – whether proposed development conflicts with the planning scheme set out in Brisbane City Plan 2000 so as to disallow approval – where Brisbane City Plan 2000 classifies particular area as Low Density Residential Area – whether the proposed development is generally appropriate or inappropriate impact assessable development under the Plan due to classification – where conflict with aspects of planning scheme – where sufficient grounds for approval of development with conditions

Environment and Planning – environmental planning – matters of consideration from consent authority – matters to be considered – consideration of planning schemes – whether the council intended the site be returned to low density residential development requiring significant demolition of existing building – where within reasonable expectation that a building of the same shape and dimensions remain for use as multi-unit dwelling in accordance with City Plan – whether the building is not consistent with the existing local character – where the building is consistent with the local character by virtue of 40 year existence in the locality – whether building is consistent with the limits for bulk, scale and density of Low Density Residential Area – where planning scheme contemplating future development cannot be said to contemplate present buildings not continuing – whether 'existing non-conforming development' which should be phased to discourage extension or entrenchment of non-complying development – where alteration or removal of structurally sound buildings cannot be required by a planning instrument requires consideration of appropriateness of proposed reuse of the building

Facts: This was a submitter appeal against the Council's decision to approve an application to construct a multi-unit dwelling development for 35 units at 6 Southerden Avenue and 4a Gawler Street, Grange. The proposed development involved the redevelopment of an existing, disused aged care facility.

The town planning issues raised in the appeal related to the scale of the overall development and whether the retention of the existing buildings and their conversion, together with the additional carpark structure was appropriate development. The parties also disputed a number of traffic and engineering issues.

The categorisation of the development as generally appropriate or generally inappropriate development under the City Plan 2000, was disputed between the parties and further the extent of any conflict with the City Plan 2000.

The appellants argued that the development was generally inappropriate impact assessable as it failed to comply with the relevant code and further that the development conflicted with the character, bulk, scale and density of the buildings and with the traffic generation.

The Council argued that the development was generally appropriate impact assessable and complied with the code.

A key issue in the case regarded the existing character of the area and the planned character of the area.

Decision: The Court held, in refusing the appeal:

  1. The reasonableness of the expectations of the appellants as to future development in the area, is to be judged by reference to the planning scheme, but not exclusively so.
  2. Statements of intent regarding scale and density should not be applied as an inflexible standard, or read literally in such a way that any exceedance of the stated gross floor area requirement cannot be approved.
  3. The court is not permitted to approach the application by consideration of more preferable development than that proposed for the site.
  4. The principle against entrenching existing non-conforming uses is not absolute and inflexible, and will yield in an appropriate case. However, there was no evidence to suggest that the existing building were previously a non-conforming development.
  5. The achievement of the DEO that low density living environments predominately comprise separate houses of no more than two storeys would not be compromised if the development was approved. As predominately does not mean exclusively, the integrity of the DEO was not considered to be endangered.
  6. The proposed development was required to comply with the performance criteria, not the acceptable solutions as the latter do not as such impose requirements on the development.
  7. The development was not considered to be consistent with the local character because of other similar buildings in the locality, instead the development was said to be consistent with the local character because of its own existence within the locality for 40 years.
  8. It was appropriate to examine the nature and extent of any conflict with the planning scheme and determine if there were planning grounds in favour of the application which were, on balance, sufficient to justify approving the application notwithstanding the conflict.
  9. The character, location, sighting, bulk, scale, shape, size, height, density, design and external appearance of the development did accord with the reasonable expectations and DEOs for the area and would have a positive impact on the landscape, scenic quality and streetscape of the locality.
  10. In considering whether there were sufficient grounds to approve the particular development proposal, one ought not be distracted into considering whether there may be other developments which, if proposed, would also achieve the outcomes identified as grounds justifying approval, but without the conflict with the planning scheme.
  11. There were sufficient planning grounds to justify the approval of the application, notwithstanding the conflict with the Planning Scheme.

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