The case of University of Queensland v Brisbane City Council & CBUS Property Brisbane Pty Ltd [2016] QPEC 35 concerned an originating application made by the University of Queensland seeking declarations and consequential relief in the Planning and Environment Court in respect of two decisions of Mr Leeds, a delegate of the Brisbane City Council. The first decision was to approve a development application made by CBUS Property Brisbane for a development permit for a material change of use for multiple dwellings (264 units) and centre activities (retail and food and drink outlet) on a site located at 443 Queens Street, Brisbane and the second decision was an associated but separate decision to approve the transfer of transferable site area requested by CBUS.
 
The University identified six grounds for challenging the validity of the delegate's decisions being that the development was wrongly treated as requiring code assessment, that the delegate had no power to make the second decision under the relevant delegation, that both the development application and the transfer request were not properly assessed and that both of the delegate's decisions were unreasonable.

The Court, after considering the relevant provisions of the Brisbane City Plan 2014 and the actions of the delegate, found that the proposed development was correctly subject to code assessment, dismissed each of the other grounds raised by the University and ultimately dismissed the originating application.

Court considered whether development application was wrongly treated as requiring code assessment

When the development application was originally submitted to the Council, the delegate reviewed the gross floor area (GFA) calculations submitted with the application and formed the view that the proposed development would require impact assessment. On this basis, the delegate issued a notice stating that the development application was not properly made as it did not identify the level of assessment as impact assessment. 
 
In response to this notice, the development application was changed to nominate 300m2 of transferable site area (TSA) to be transferred to the site of the proposed development. Transferable site area is a form of transferable development right under the City Centre neighbourhood plan code of the Brisbane City Plan 2014 that may, subject to certain requirements and the Council's approval, be transferred from specific heritage place sites to another site for the purpose of calculating the extent of development that may be carried out on the other site.
 
The delegate was "of the opinion that the inclusion of the TSA was such that the development application was then code assessable" (at [7]).  However, the University submitted that the proposed development should have been subject to impact assessment. In this context, the Court was required to determine whether (at [10]):
 
  • the GFA of the proposed development above the maximum podium height was greater than the maximum allowable GFA specified in the relevant neighbourhood plan of the Brisbane City Plan 2014; and
  • the use, being Multiple dwelling, was located in a portion of the building below maximum podium height.
If either of these questions was answered in the affirmative the proposed development would have required impact assessment.

Court found that the proposed development complied with relevant GFA limits

There were two areas of contention surrounding the calculation of the GFA each of which would have a significant impact on the quantum of the maximum allowable GFA above the maximum podium height. Subject to the Court's findings on these contentions and the allocation of the transferable site area, the maximum allowable GFA above the maximum podium height could be as low as 20,407m2 or as high as 44,995m2.
 
The first area of contention was whether the area of the lowest level of car parking, Carpark Level 1, was to be included in calculating the maximum allowable GFA. Due to the slope of the site, only 150m2 of the 1,629m2 of Carpark Level 1 was above the maximum podium height, being the height relevant to determining this level's inclusion in the GFA calculation, and consequentially the University sought to rely on a volumetric calculation of the GFA of this level in calculating the maximum allowable GFA.
 
Considering the relevant provisions of the Brisbane City Plan 2014 the Court found (at [19]):
 
"The approach of the applicant [the university], that the extent of Carpark Level 1 above maximum podium height should be calculated volumetrically, does not accord with the wording of the relevant provisions quoted above. The wording is clear that only the horizontal plane is relevant."
 
The second area of contention concerned the figure for "city site cover" which was 0.55074866 and used in calculating the maximum allowable GFA. The "development ratio", another figure used in the calculation of the of the maximum allowable GFA, was to be determined differently depending on whether the city site cover was between "0.45 and 0.55" or "0.56 or more". Despite the University's submission that the city site cover should be rounded to 0.56 as there was a gap in the relevant provisions, in that they did not provide for circumstances where the city site cover was between 0.55 and 0.56, the Court found that the city site cover expressed to two decimal places fell within the 0.45 to 0.55 range.
 
The Court's findings on these two points meant that from the perspective of GFA both the original development application, which did not include the transfer of transferable site area and the changed development application were in fact code assessable.

Court found that the multiple dwelling use was not located below the maximum podium height

Carpark Level 1 was below the maximum podium height and, by virtue of the tables of assessment, if these car parks were part of the multiple dwelling use, the proposed development would require impact assessment.
Under schedule 3 of the Sustainable Planning Act 2009 the definition of use "includes any use incidental to and necessarily associated with the use of the premises". The development application and decision notice made it clear that the car parks were intended for the exclusive use of the residents of the multiple dwelling and not the retail component of the proposed development.

To give effect to the provisions of the City Centre neighbourhood plan, the Court found it was necessary to exclude car parking from the multiple dwelling use. On this basis, the Court found that "City Plan 2014 read as a whole demonstrates that car parking is not considered to be part of a Multiple dwelling use in the CCNP [City Centre neighbourhood plan] area."  However, the Court noted that a different conclusion could be reached in a different context, such as under a different planning scheme.

Consequentially the development application was not wrongly treated as requiring code assessment.

Court found that transfer request and development application were properly assessed, that the delegate had power to determine the transfer request and that the decisions were not unreasonable

In respect of the remaining grounds raised by the University, the Court found that:
  • the delegate had the power to assess and determine the transfer request (at [32]);
  • the delegate had properly assessed the transfer request and the development application (at [36] and [51]);
  • the delegate's decisions were not unreasonable in the Wednesbury sense (at [40] and [52]).
Consequentially, the University did not establish an error that would enable the Court to set aside the decision on the proposed development.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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