Australia: There were sufficient grounds to approve the proposed development at the former ABC site, despite conflict with the Brisbane City Plan 2014

IN BRIEF

The case of Bell v Brisbane City Council & Ors [2017] QPEC 26 concerned a submitter appeal to the Planning and Environment Court made by the Appellant, Kate Peta Bell, against the decision of the Brisbane City Council to approve a development application by the Applicant, Sunland Developments No. 8 Pty Ltd, for a material change of use of land situated at 600 Coronation Drive, Toowong, known as the former ABC site.

The proposed development comprises the following:

  • 555 units (gross floor area of 49,231.6m2) with combined community use areas and food and drink outlets;
  • 53% of the site area was intended for public open space, including a sculpture park;
  • 800 car parks comprising 714 for residents and 86 for visitors with 680 bicycle spaces;
  • a public bikeway and pedestrian way connecting to the bicentennial bike way and across the subject land;
  • the retention and extension of Middenbury (an 1865 villa residence) and its re-use.

The Appellant owns properties comprising six contiguous lots, one of which was a lot adjoining the subject land.

The Court found that there were sufficient grounds to approve the proposed development despite its conflict with the provisions of the Brisbane City Plan 2014. In doing so, the Court considered various matters including:

  • the issues contended by the Appellant, including centre issues, height, heritage and traffic;
  • the level of economic and community need;
  • the provision of generous public open space.

COURT'S ULTIMATE DECISION WOULD NOT CHANGE EVEN IF THERE WAS A LEVEL OF CONFLICT WITH THE BRISBANE CITY PLAN 2014 IN RELATION TO THE ISSUES RELATED TO THE PROPOSED DEVELOPMENT BEING LOCATED AT TOOWONG CENTRE

The Appellant submitted that the proposed development was in conflict with the intent of the Brisbane City Plan 2014 by reason of its limited centre type uses and failure to integrate with the existing Toowong Centre.

While the Court accepted that there was a level of conflict with the Brisbane City Plan 2014, it confirmed that its ultimate decision would not change in any case.

COURT FOUND THAT THE HEIGHT OF THE PROPOSED BUILDINGS WAS IN CONFLICT WITH THE BRISBANE CITY PLAN 2014, HOWEVER, THAT THIS WAS AN EXCEPTIONAL CASE

The Appellant argued that the height of the proposed buildings was in conflict with the Brisbane City Plan 2014.

The Court accepted that the height of the proposed buildings was in conflict with A01.1 and PO1 of the Toowong-Auchenflower Neighbourhood Plan Code under the Brisbane City Plan 2014. However, without deciding whether there was conflict with the relevant overall outcome of the code, the Court found (at [81]) that this was "an exceptional case in which the proposal warrants approval notwithstanding" given the economic and community need and other sufficient grounds for approval.

COURT FOUND THAT THE PLANNING SCHEME PROVISIONS RELATING TO HERITAGE WERE SATISFIED

The heritage expert for the Appellant opposed the proposed development for reasons including the following:

  • likely damage to the significant fabric of Middenbury and its fig trees;
  • inadequate and inappropriate setting for Middenbury;
  • impaired "views between Middenbury and the Brisbane River and West End and between Middenbury and Coronation Drive" (at [135]);
  • the form of the proposed development would "detract from the appearance and expression of Middenbury as an 1860s villa residence" (ibid).

The Court preferred the evidence provided by the heritage experts for the Council and Applicant and found that the provisions relating to heritage were satisfied.

COURT DID NOT FIND THAT THE TRAFFIC ISSUES RAISED BY THE APPELLANT WOULD CALL FOR REFUSAL OF THE DEVELOPMENT APPLICATION

The Appellant disputed a number of traffic issues, including access to the subject land, bikeway and pedestrian path and the layout of carparks.

The Court found that the traffic issues could be addressed satisfactorily by the proposed development in that:

  • obtaining access from an arterial road, being Coronation Drive, was in conflict with the relevant provision in the Brisbane City Plan 2014, however, it would "not [be] accompanied by a significant adverse consequence and the relevant overall outcomes are not prejudiced" (at [192]);
  • the issues relating to the form of the access and Archer Street cycleway access could be resolved by way of development conditions;
  • the proposed cycle route satisfied the relevant performance outcome;
  • the layout of the resident's carpark was narrower than what was referred to in the relevant policy in the Brisbane City Plan 2014, however, it would provide a greater number of carparks than what was required under the Brisbane City Plan 2014.

COURT FOUND THAT THERE WAS A SIGNIFICANT ECONOMIC AND COMMUNITY NEED FOR THE PROPOSED DEVELOPMENT, INCLUDING THE RESIDENTIAL COMPONENT

The economist for the Appellant argued that there was a great need for the subject land to be used for retail and commercial purposes. The economists for the Council and the Applicant disagreed.

In finding that there was a significant economic and community need for the proposed development, including its residential component, the Court accepted the opinions of the economists for the Council and the Applicant who considered that:

  • the quality of the proposed development would attract residents from the Brisbane inner city and also from interstate;
  • the demand for commercial offices in Toowong is limited;
  • the need for further retail space is not overwhelming and it can be accommodated by other places in the neighbourhood.

COURT FOUND THAT THE PROPOSED PROVISION OF PUBLIC OPEN SPACE WAS UNQUESTIONABLY GENEROUS

The Court found that the provision of public open space would provide a great benefit for the following reasons:

  • it was much greater than what would be expected;
  • access would be provided to open space with high amenity for pedestrians and cyclists;
  • a positive contribution would be made to the public realm;
  • it would provide an appropriate setting for Middenbury.

The Court ultimately found that, on balance, there were sufficient grounds to approve the proposed development despite conflict with the Brisbane City Plan 2014.

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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Authors
Ian Wright
 
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