Insights

In brief - Court rejects appeal against Brisbane City Council's approval of development despite conflict with planning scheme

In Rintoul & Ors v Brisbane City Council and Greengate Property Group (No 2)[2013] QPEC 47, the Queensland Planning and Environment Court has found that while a proposed development of an aged care facility was in minor conflict with the Brisbane City Plan 2000, there was a need for a facility of such kind as proposed which outweighed the conflict.

The court dismissed the appeal commenced by a number of submitters, predominantly residents in the locality, against the council's decision to approve Greengate Property Group's development application for an integrated retirement and aged care facility in Woolloongabba, Brisbane. (Please see also our earlier article, Costs application dismissed following withdrawal of an application in pending proceeding.)

Changed proposal addressed amenity and design issues

The land affected by the proposed development was surrounded by pre-1946 houses and was improved by a locally listed heritage place, St Luke's Catholic Church, a pre-1946 dwelling and a two-storey concrete building constructed in 1948 which was previously used as a school. The proposed development would retain the church and relocate the pre-1946 dwelling, but would replace the old school building with four separate buildings of three and four storeys in height.

During the course of the appeal, Greengate made changes to the proposed development which addressed some of the amenity and design issues. As a result of the changes to the proposed development and the joint meetings of the town planners and heritage architects, the issues in the appeal were narrowed.

Court considered heritage value of old school building, scale of development and relocation of pre-1946 dwelling

Consequently, in the context of determining whether the proposed development was in conflict with the Brisbane City Plan 2000, the merits issues which the court was required to consider were related to:

• the heritage value of the old school building

• the scale of the proposed development and its impact on amenity and character and heritage values of the surrounding area and also on the church on the land

• the relocation of the pre-1946 dwelling on the land

Court accepted council's position that old school building had no cultural heritage significance

The submitters argued through expert evidence that the old school building had cultural heritage significance and its demolition would therefore detract from the fabric and setting of the church.

The court observed that the council made a conscious decision not to list the land as a Heritage Precinct on the Heritage Register as, had it done so, it would have included and recognised the heritage values of both the church and the old school building. The council instead listed only the church on the Heritage Register as a heritage place.

The court further observed that the heritage values ascribed to the old school building were based on an independent assessment undertaken by the submitters' expert in the course of the appeal. Accordingly, in effect, the court was being asked to put itself in the place of the council and make an independent assessment of the old school building in the appeal.

The court noted that such an approach, if accepted, would constitute an error of law and consequently, it would not entertain an approach of such kind. The submitters' contention that the old school building had cultural heritage significance was dismissed.

The proposed development would have no unacceptable amenity impact and would not unacceptably impair the view of the church from Taylor Street

The submitters contended that:

• the scale of the proposal would cause an unacceptable amenity impact on the character of the surrounding locality

• the proposed development would unacceptably impair the view of the church from Taylor Street given its height and bulk, which would be in conflict with the Heritage Place Code of the Brisbane City Plan 2000

The court recognised that the Brisbane City Plan 2000, when read as a whole, emphasised the importance of development to be of a density, bulk and scale compatible with surrounding residential areas and not compromise local amenity.

The court accepted that the concerned residents' issues on the amenity impacts of the proposed development were genuinely held, but noted that they must be considered in the context of their reasonable expectations as informed by the applicable planning scheme controls.

The court observed that the land was in the Community Use - Community Facilities (CU-2) Area, which meant that it could be developed for other uses which could have similar amenity impacts to the proposed development, without any input from the surrounding residents.

In this regard, Greengate's visual amenity expert produced overshadowing modelling evidence which illustrated the shadowing that could be expected from the proposed development and a theoretical code compliant proposal on the land.

It was demonstrated that there was very little difference between the overshadowing from the proposed development and the overshadowing from the theoretical code compliant proposal. On this basis, the court was satisfied that the proposal would have no unacceptable amenity impact.

In reliance on the expert evidence, in particular the montage submitted by Greengate's visual amenity expert, the court also found that the proposed development would not unacceptably impair the view of the church from Taylor Street.

The montage represented very closely the view of the church from Taylor Street and it effectively demonstrated that the church would remain a prominent feature despite having buildings on either side. The court therefore was satisfied that the proposed development was not in conflict with the Heritage Place Code.

Relocated pre-1946 dwelling would still be protected by Demolition Code

As the land was within a Demolition Control Precinct, the Demolition Code under the Brisbane City Plan 2000 applied to the relocation of the pre-1946 dwelling. The court noted that the relocation was in conflict with the Demolition Code, but concluded that the conflict was of a minor nature, particularly given that the dwelling would still be in the Demolition Control Precinct after its relocation and remain protected by the Demolition Code.

Further, any loss to the visual character of Taylor Street as a result of the relocation would commensurately contribute to the visual character of Mossgrove and Queen Bess Street (being the new location of the pre-1946 dwelling), which was also made up of predominantly pre-1946 houses.

Need for proposed development was a sufficient ground to overcome minor conflict with Brisbane City Plan 2000

The court was satisfied that, based on the evidence of economic need and aged care experts, there was a need for a facility of such kind as proposed, particularly given that the land was sited conveniently to public transport and major hospitals.

While the proposed development was in minor conflict with the Brisbane City Plan 2000, the court was satisfied that the established need for the proposed development was sufficient to overcome such conflict.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​