Australia: Too big and too tall development conflicts with planning schemes

IN BRIEF

The case of VG Projects Pty Ltd v Brisbane City Council [2016] QPEC 15 concerned an appeal commenced by VG Projects Pty Ltd against the Brisbane City Council's deemed refusal of a development application for a material change of use for the proposed multiple dwellings at Oxlade Drive, New Farm.

Through mediation, traffic, noise and wind impact issues were agreed by the parties as not warranting a refusal of the development application. The remaining issues which the Court had to determine related to the height, bulk and scale of the proposed development, its consequential impact on the character and amenity of the locality and whether there were sufficient grounds to justify an approval in the event of conflict.

The Court found that the proposed development was in conflict with both the Brisbane City Plan 2000 and Brisbane City Plan 2014 and the grounds contended by VG Projects were not sufficient to justify an approval. The appeal was therefore dismissed.

NINE-STOREY MULTIPLE DWELLINGS DEVELOPMENT WAS PROPOSED IN LOCALITY WHICH CONTAINED PREDOMINANTLY LOW TO MEDIUM RISE RESIDENTIAL DEVELOPMENT BUT SOME HIGH RISE DEVELOPMENT

The proposed unit development comprised nine storeys and a roof deck with a gross floor area of 8905 m2 and a plot ratio of approximately 3.75 times the site area. It comprised 65 dwelling units with a mix of two, three and four bedrooms.

The land the subject of the proposed development was included in the Medium Density Residential Area and the New Farm and Teneriffe Hill Local Plan under the Brisbane City Plan 2000. Under the Brisbane City Plan 2014, the land was included in the Medium Density Residential Zone and the New Farm Neighbourhood Plan.

Development within the locality was predominantly low to medium rise residential development but it also had some high rise development.

JUST BECAUSE A PROPOSAL OF A GREATER HEIGHT AND GROSS FLOOR AREA COULD STILL MEET PERFORMANCE CRITERIA IT DOES NOT MEAN IT PROVIDES FOR A TRANSITION OF THE LOCALITY TO A HIGH RISE BUILT ENVIRONMENT

In assessing the height, bulk and scale of the proposed development, the Court focused on performance criteria P1 and P2 of the New Farm and Teneriffe Hill Local Plan Code as follows:

  • P1 New buildings must maintain views to and from the River and other landmarks identified on Map A – New Farm and Teneriffe Hill, while maintaining a visual relationship with other buildings in the vicinity
  • P2 Building size and bulk must be consistent with the medium density nature of the locality and retain an appropriate residential scale and relationship with other precincts in the plan area

The proposed development did not meet the acceptable solutions A1.1 and A2.1 to performance criteria P1 and P2. In fact, it was nearly twice the height prescribed in A1.1 and had more than three times the plot ratio prescribed in A2.1.

Whilst acknowledging that a proposal of a greater height and gross floor area than that prescribed in the acceptable solutions could still meet P1 and P2, the Court did not consider those performance criteria provided for a transition of the locality to a high rise/high density built environment.

COURT FOUND THE PROPOSED DEVELOPMENT WAS IN CONFLICT WITH BRISBANE CITY PLAN 2000 IN THAT IT WAS NOT SYMPATHETIC TO THE EXISTING LOW RISE BUILDINGS AND WAS NOT CONSISTENT WITH THE MEDIUM DENSITY NATURE OF THE LOCALITY

It was not seriously contended by the council and the submitters that the proposed development was in conflict with the first limb of P1. As to the second limb of P1, the Court adopted the approach established in Calvisi & Ors v Brisbane City Council & Ors [2009] QPELR 35 that "visual relationship in P1 should be construed to mean a relationship which is pleasing, sympathetic, supportive, harmonious or complementary". As to P2, the Court noted that "the "relationship" required in P2 is an appropriate relationship" (at [42]). Consistent with the approach adopted in Calvisi and BTS Properties (Qld) Pty Ltd v Brisbane City Council & Ors [2015] QPEC 47, the Court further noted that building height would be a relevant factor in considering building size and bulk.

In order to determine whether the proposed development complied with P1 and P2, the Court had to assess the other buildings in the area, the medium density nature of the locality and other precincts in the area.

In the Court’s view, the predominant built form in the area was between two to six storeys. Even though there were a few taller buildings dispersed in the area, it did not detract from the medium density character of the area.
Further, unlike the proposed development, the existing high rise buildings were generally sympathetic to existing low rise buildings by having significant setbacks or a design which achieved a transition in height.

Whilst the proposed development sought to incorporate design features to reduce or mitigate the impression of its size and bulk, the Court was not satisfied that they were adequate to render its size and bulk as being acceptable.

The Court found that the proposed development was not consistent with the medium density nature of the locality and "would not maintain a visual relationship that is pleasing, sympathetic, supportive, harmonious or complementary…" (at [58]), particularly given its significant height.

COURT FOUND THE PROPOSED DEVELOPMENT WAS IN CONFLICT WITH BRISBANE CITY PLAN 2014 AND ITS GREATER HEIGHT AND SCALE WAS NOT JUSTIFIED BY COMMUNITY AND ECONOMIC NEED

The Court gave weight to the Brisbane City Plan 2014 in its assessment of the proposed development. However, the Court was of the view that the proposed development was not consistent with the height, bulk and scale expectations in the locality contemplated under the relevant provisions of the Brisbane City Plan 2014.

Further, it had not been established that the greater height and scale of the proposed development was warranted by reason of community and economic need.

COURT FOUND THE PROPOSED DEVELOPMENT WOULD CAUSE UNDUE ADVERSE IMPACT ON THE AMENITY AND CHARACTER OF THE AREA AND THERE WERE NOT SUFFICIENT GROUNDS TO OVERCOME ITS CONFLICTS WITH THE PLANNING SCHEMES AND CONSEQUENTIAL IMPACTS

The Court also had the benefit of lay witness statements in relation to their concerns on the impact of the proposed development on visual amenity and perception of character of the area which the Court considered to be genuine. The Court found that the proposed development would have an undue adverse impact particularly given its height and bulk.

A number of grounds were asserted by VG Projects seeking to justify the approval of the proposed development in the event that the Court found it to be in conflict with the council’s planning schemes. The Court considered the asserted grounds were relatively weak and were not sufficient to warrant an approval of the proposed development.

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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