In Aspinall & Ors v Brisbane City Council & Butterfield Projects Pty Ltd
 QPEC 31, submitters appealed against a decision made by the Brisbane City Council to approve Butterfield Projects Pty Ltd's development application for a development permit for 35 units in a disused aged care facility on a site located at 6 Southerden Avenue and 4a Gawler Street, Grange.
The submitters argued that the development application should be refused as it conflicted with the relevant planning instruments, being the Brisbane City Plan 2000
and the Brisbane City Plan 2014
, and that there was a lack of sufficient grounds to justify the approval of the development application despite the conflicts.
The Court found that there were sufficient grounds to justify the approval despite substantial conflict with the gross floor area limits. In particular, the Court considered that the conflict was largely a product of the existing built form, and that the proposed development would improve amenity, reuse a structurally sound building for a purpose envisaged in the planning scheme and facilitate the potential for residents to remain in their neighbourhood throughout their lives.
The proposed development conflicted with the planning scheme as it was over twice the density specified in the intent of Low Density Residential Area
The site was an island block with a total area of over 3,600m2. The existing building on the site was the legacy of an aged care facility which had been in operation on the site for approximately 40 years since the 1970s. The existing building, which had a gross floor area of over 3,300m2 and was up to four storeys in height, had ceased operating as an aged care facility and fallen into disrepair. However, the structural engineers agreed that the existing building was in good structural condition and remained suitable for the proposed residential use.
The existing building was not consistent with the surrounding area which was predominantly comprised of one- to two-storey dwelling houses, many of which were of pre-1946 "timber and tin" character. The proposed development sought to reuse the existing building to create 35 residential units while reducing its overall gross floor area and enhancing its appearance. Despite the reduction in gross floor area, the proposed development would still be 77% of the total site area, substantially exceeding the 30% of site area specified as the maximum gross floor area of a multi-unit dwelling for the low density residential area in which the proposed development was sited.
The submitters contended that the existing building on the site was discordant with the predominant character of the area, and that this discordance would be entrenched with the approval of the proposed development.
Court considered the proposed development was consistent with the community's reasonable expectations as to future amenity
The submitters' central argument was that the reasonable expectations of the community, which were based on the planning scheme, were that the existing building would be demolished at the cessation of its use as an aged care facility to return the site to low density residential development. The Court found that the reasonable expectations of the community were to be judged in the context of not just the planning scheme but the broader statutory planning controls.
The Court emphasised two particular aspects of the broader statutory planning controls. Firstly, that the proposed development could be approved despite the conflict with a relevant planning instrument where there are sufficient grounds to justify an approval despite the conflict. Secondly, that a planning instrument could not require a lawfully constructed building to be altered or removed.
In the context of the broader statutory planning controls, the evidence given by the submitters and the fact that the built form had existed on the site for almost 40 years, the Court found that it was not beyond the reasonable expectations of a person considering the locality that the built form would continue to exist on the site and might be redeveloped so as to be put to a different use.
Court dismissed the remaining arguments raised by the submitters
The submitters also contended that the proposed development was in conflict with the desired environmental outcomes of the planning scheme; discordant with the predominant character of the area; not consistent with the bulk, scale and density limits in the planning scheme; and that there should be demolition of at least part of the built form on the basis of the planning philosophy that existing non-conforming development was phased out.
The Court dismissed the submitters arguments for a variety of reasons, but largely on the basis that the submitters' contentions focused on the demolition of the existing building which could not be compelled by the planning scheme. The Court distinguished a number of cases relied on by the submitters in support of their arguments as the cases considered the establishment or expansion of a built form. The Court found that there was a fundamental distinction between a case where there was an existing built form, and the statutory planning controls prevented its demolition, and where a new built form was to be established or an existing built form was to be expanded.
The court found that there were sufficient grounds to justify approving the proposed development despite the conflict with the planning scheme
The Court emphasised that it was not permitted to approach the development application by considering some more preferable development on the site, particularly one that would require demolition of the existing structure. In considering whether there were sufficient grounds, the decision maker should not be distracted by hypothesised alternative proposals that would not be in conflict with the planning scheme.
The Court found that despite there being substantial conflict with the gross floor area limits in the intent for the Low Density Residential Area in the planning scheme, this conflict was a direct product of the existing built form, and the reuse of that form was a sensible, practical and appropriate outcome. Ultimately, the Court found that there were sufficient grounds to justify the approval of the proposed development despite conflict with the planning scheme.
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