How tall is the proposed building?

In brief

The case of The Body Corporate for the Village of Langler Drew Community Titles Scheme 16700 v Brisbane City Council & Ors [2014] QPEC 54 involved an application in the Planning and Environment Court made by the body corporate for the Village of Langler Drew Community Titles Scheme 16700 concerning a building proposed to be built at 2-6 Maryvale Street, Toowong.

The body corporate contended that the proposed building was above eight storeys and impact assessable. To the contrary, the developer and the Brisbane City Council contended that the proposed building was eight storeys and, therefore, code assessable.

The court found that the proposed building was eight storeys in height for the purpose of the Brisbane City Plan 2000 and, as a result, the development application for the proposed building was a code assessable application. The court reserved the costs of the application.

The court found that the bottom area was an overland flow path for stormwater and was not a space within the proposed building between one floor level and the floor level next above it for the purposes of the definition of storey under the Brisbane City Plan 2000

It was proposed by the developer that the area between natural ground level and the underside of the ground floor or the slab of the level one car park was to be used for stormwater management and to accommodate overland stormwater flows. The area contained no habitable spaces and it could not be used by pedestrians or vehicles.

The body corporate argued that the area constituted a storey within its meaning under the Brisbane City Plan 2000 as it was a space within the proposed building commencing at natural ground level, and that level was a floor level with another floor level (being the level 1 carpark) next above it.

The council and the developer argued to the contrary that the area did not constitute a storey as the area was a space below and outside the proposed building and natural ground level was not a floor level.

The court gave consideration to the approach adopted by the court in Cox v Maroochydore Shire Council [2006] QPELR 628 [at 634-635] when analysing the definition of storey. The definition of storey considered in that case was similar to the one in the Brisbane City Plan 2000, while it did not include a reference to the commencement at ground level.

The court formed the view that the area was an overland flow path for stormwater and was not a space between one floor level and the floor level next above it. As such, the court accepted the submissions of the council and the developer that the area was not a space within the proposed building and, therefore, not a storey within its meaning under the Brisbane City Plan 2000.

The court found that the top area was an area on top and outside of the proposed building which had no floor level, ceiling or roof above it, and was not a space within the proposed building for the purposes of the definition of storey under the Brisbane City Plan 2000

Under the proposal, the area on the top of the building was to include the plant deck, communal area (or roof deck with a pergola) and the top of the lift shaft and stairwells. There was no roof directly above the communal area and plant deck. However, there was a roof on the lift shaft and stairwells.

The body corporate argued that the area constituted a storey within its meaning under the Brisbane City Plan 2000 as the plant deck and communal area was a floor level which was next above the level seven floor slab or, in the alternative, there was a roof which capped the lift shaft and stairwells above, in the sense of being higher than, the plant deck and communal area.

The council and the developer argued to the contrary that the area did not constitute a storey as the area was on top of the proposed building (rather than within it) and it did not have a floor level or a roof above it.

The court noted that the communal area and plant deck had no relevant ceiling or roof above it. In the court’s view, the roof of the lift shaft and stairwells did not constitute a "roof above" the communal area and plant deck. It further noted that the lift shaft and stairwells were expressly excluded from "space" considerations for the purposes of the definition of storey under the Brisbane City Plan 2000.

Therefore, the court found that the area on the top of the proposed building had no floor level, ceiling or roof above it and was not a space within the proposed building. The court accepted the submissions of the council and the developer that the area did not constitute a storey within its meaning under the Brisbane City Plan 2000.