Australia: Court found that the proposed development was too tall and too big and was in significant conflict with the planning scheme

IN BRIEF

The case of Norfolk Estates Pty Ltd v Brisbane City Council & Body Corporate for Kirribilli Apartments Community Titles Scheme and Ors [2016] QPEC 9 concerned an appeal in the Planning and Environment Court against the Brisbane City Council's decision to refuse a development application for a material change of use to develop two adjoining lots at New Farm with a 10-storey building, including a rooftop terrace containing 13 dwelling units.

The council refused the development application on the basis that it was in significant conflict with the New Farm and Teneriffe Hill Neighbourhood Plan Code, the Multiple Dwelling Code and the Medium Density Residential Zone Code of the Brisbane City Plan 2014 and there were no sufficient grounds to justify an approval despite the conflict.

The Court found that the development application was in conflict with the Brisbane City Plan 2014 at all levels. In the absence of sufficient grounds to justify an approval despite the conflict, the Court dismissed the appeal.

TOWN PLANNING EXPERTS ACCEPTED THAT THE CHARACTER OF THE SURROUNDING LOCALITY OF THE PROPOSED DEVELOPMENT CORRESPONDED WITH THE TOWN PLANNING DESIGNATION IN THE BRISBANE CITY PLAN 2014 AS MEDIUM DENSITY RESIDENTIAL

The Court first considered the character of the surrounding locality of the proposed development. The proposed development is located on the southern side of Oxlade Drive.

As agreed by the town planning experts, the character of the southern side of Oxlade Drive and Griffith Street was "predominantly medium rise, medium density residential area ... and contains mostly multiple dwellings although some single dwellings remain" (at [10]). As to the character of the northern side of Oxlade Drive and Griffith Street, the town planning experts were of the view that "opposite the site on the northern side of Oxlade Drive the profile and density is markedly different. It is an area of predominantly low rise medium density residential development containing both detached houses and multiple dwellings as well as ... small scale non-residential uses" (at [10]).

The existing character of the surrounding locality is comprised of a mixture of high rise buildings, namely Glenfalloch (15 storeys), Platinum (7 storeys) and Kirribilli (11 storeys) and low rise buildings.

On balance, the town planning experts agreed that the character of the surrounding locality corresponded with the town planning designation in the Brisbane City Plan 2014 as medium density residential (or living).

COURT FOUND THAT THE LOCAL AREA WOULD BE VIEWED COLLECTIVELY AND IT DID NOT HAVE A "HIGHER DENSITY, MULTI-UNIT FEEL" AND THE PROPOSED DEVELOPMENT WOULD VISUALLY BRIDGE THE GAP BETWEEN KIRRIBILLI AND EDGEWATER IF THE TOP FOUR STOREYS WERE REMOVED

Norfolk, through its visual amenity expert, divided the local area into three sub-precincts. The middle sub-precinct, where the proposed development was located, had "a higher density, multi-unit feel", with Kirribilli being a prominent building but making minimal positive contribution to the local character and amenity.

Norfolk's visual amenity expert argued that the proposed development would ""reconcile the 11 storey Kirribilli apartments to the prevailing character", "is restorative in its nature bridging between the bulk and scale of the buildings to the east of the site and Kirribilli"; "has been carefully framed to visually link with other medium rise development within the area whilst also linking with its taller neighbour"" (at [23]).

The Court disagreed with the three sub-precincts division and accepted the council's visual amenity expert's opinion that "a person passing through the whole of this part of the locality would not assess the character as 3 distinct sub-precincts but rather "collectively as part of a wider visual experience"" (at [21]).

The Court also disagreed that any part of the local area had "a higher density, multi-unit feel" when it was viewed collectively. During cross-examination, Norfolk's visual amenity expert's "bridging" and "visual link" arguments were significantly undermined. The Court preferred the council's visual amenity expert's proposition that the proposed development would in fact visually bridge the gap between Kirribilli and Edgewater (to the east of the site) and produce "a pleasant graduation" if the top four storeys were removed.

COURT OBSERVED THAT REASONABLE MEMBERS OF THE COMMUNITY WOULD EXPECT A DEVELOPMENT ON THE SUBJECT SITE OF UP TO 5 STOREYS OR 15 METRES IN HEIGHT AND FOUND THE IMPACT OF THE PROPOSED DEVELOPMENT ON THE VIEWS OF THE BRISBANE RIVER OF KIRRIBILLI RESIDENTS TO BE UNACCEPTABLE AND SIGNIFICANT

The Court went on and considered the impact the proposed development would have on views of the Brisbane River, in particular those of residents within the eastern unit of Kirribilli.

Both the zone code and the neighbourhood plan relevantly contain provisions relating to protection of view corridors and maintenance of views to and from the river, taking into consideration the height, scale and form of development and community expectations about the number of storeys to be built.

The Court observed that a fair and objective reading of the Brisbane City Plan 2014 would lead Kirribilli residents to an expectation of a development on the subject site of up to 5 storeys or 15 metres in height. A higher building may be developed in limited circumstances where a community and economic need was demonstrated and it responded to the characteristics of the adjoining building.

Norfolk's visual amenity expert argued that the impact on views of Kirribilli residents from levels 7 to 11 was minor, which was again undermined during cross examination.

The Court preferred the council's visual amenity expert's evidence and concluded that the impact of the proposed development on the views of the Brisbane River of Kirribilli residents from levels 7 to 11 would be "unacceptable, unwelcome and significant" (at [57]).

DUE TO THE INCONSISTENCY OF THE PROPOSED DEVELOPMENT WITH THE AMENITY AND CHARACTER OF THE LOCALITY AND A FAILURE TO DEMONSTRATE AN ECONOMIC AND COMMUNITY NEED, THE COURT HELD THAT THE DEVELOPMENT APPLICATION SIGNIFICANTLY CONFLICTED WITH THE BRISBANE CITY PLAN

As to the height, scale and bulk of the proposed development, in the Court's view it would present as a high density high rise building, rather than as medium density, which was not consistent with the amenity and character of the locality or the community expectations.

Further, the proposed development failed to maintain views to and from the Brisbane River to an acceptable level or establish an acceptable relationship to adjoining buildings.

Norfolk sought to demonstrate a community and economic need for the proposed development and rely on the maximisation of infrastructure as a ground to support an approval of the proposed development.

However, the Court considered that the extent of conflict of the proposed development with the Brisbane City Plan 2014, particularly in relation to height, bulk and scale, was so significant such that the purported need was not sufficient to justify an approval despite the 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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Ian Wright
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