In brief

The case of Quintenon Pty Led v Brisbane City Council [2016] QPEC 64 concerned an appeal by Quintenon Pty Ltd against the Council's deemed refusal of a development application for a material change of use for a proposed mixed-use building, including aged care accommodation, assisted living units, medical consulting rooms and a health training facility located at 7 to 17 Wolseley Street, Buranda.

A central issue in the case was the acceptability of the height of the proposed development and whether it was consistent with the intended scale and character of the Buranda Precinct of the Eastern Corridor Neighbourhood Plan.

Relevantly, the Council submitted that the proposed development conflicted with the City Plan 2000 and the City Plan 2014, which came into force after the development application was lodged but was deserving of weight. The Council also asserted an absence of sufficient grounds to warrant approval notwithstanding the conflict.
Quintenon argued that there was an economic and community need for the proposed development such that there were sufficient grounds to approve the development application. The Council argued that the need could still be addressed, to a lesser extent, by a development of acceptable height and that Quintenon had not sufficiently explained the necessity for the number of storeys proposed.

Ultimately, the Court was of the view that the proposed development was generally consistent with the relevant local and regional planning provisions, satisfied a strong economic and community need, was of substantial merit and therefore should be approved notwithstanding the conflicts with the planning schemes.

The potential for the proposed development to respond to changing demands by adaptive re-use rather than demolition, promoted desirable sustainability

The height and visual impact of the proposed development gave rise to the most substantial conflicts, in the Council's submissions. The proposed development was expressed as 20 storeys but was approximately 82 metres to the top of its roof which the Council stated to be "relatively tall, in absolute terms, for a 20 storey building". This was a consequence of using a relatively high floor-to-floor vertical dimension of 3.9 metres per floor to ensure that the building could be designed to be flexible in respect of the different uses so that if needs were to change, the potential adaptive re-use of the building could be facilitated.

Of particular focus were the provisions of the Buranda Precinct which relevantly provided that the precinct was to be revitalised, capitalising upon its proximity to the hospital and eastern busway; whilst the intent for the Buranda Core Sub-precinct is that "a mix of predominantly non-residential uses is supported with a strong focus on medical related services. Development is up to 15 storeys, includes offices and some higher density residential development."

The Court found that the potential for the proposed development to respond to changing demands by adaptive re-use rather than demolition promoted desirable sustainability, in a building which was otherwise well designed and located.

The likely future development of the area must be considered in assessing how the proposed development would sit within the intended outcome for the precinct

Although the central issue was whether the proposed development was consistent with the intended scale and character of the precinct and sub-precinct, the Eastern Corridor Neighbourhood Plan did contemplate the potential for development exceeding the maximum of 15 storeys notwithstanding the statement of intent.

Accordingly, the parties put forward evidence in respect of the likely visual impact of the proposed development with the Council submitting that the proposed development would not "fit in" with the surrounding area unless future development was imagined to be exceptionally tall and wide. However, in dismissing this argument, the Court found that the likely future development of the area must be considered in assessing how the proposed development would sit within the intended outcome for the precinct.

The Court found that the proposed development would not draw attention away from designated landmark sites in the Buranda Precinct

Although the proposed development was in a different physical location, the Council submitted that the future development of the designated landmark sites in the Buranda Precinct would find it more difficult to perform their function of providing a prominent visual reference because the height of the proposed development would draw attention away from the designated landmark sites.

In dismissing that submission, the Court found that the proposed development would not have the effect alleged by the Council, even if the future development of the designated landmark sites was of a lesser height than the proposed development.

The Court found that the proposed development as a whole responded to a strong economic and community need

Quintenon relied upon several grounds to justify the approval of the proposed development despite any conflict that were broadly described as relating to need and other matters of merit.

In particular, Quintenon argued that the proposed development satisfied a need for new retirement facilities within the inner city area of Brisbane and difficultly in housing the elderly close to their communities and within easy access to medical-related facilities and more trained aged care workers.

In response, the Council submitted that these needs could be addressed, to a lesser extent, by a development of acceptable height and that Quintenon had not explained the necessity for the number of storeys proposed.

However, in finding that the proposed development as a whole responded to a strong economic and community need, the Court was satisfied that there was an economic and community need for each component of the proposed development and a benefit to be derived from the co-location of each component.

There were sufficient grounds to approve the proposed development despite the conflict arising from the building's height

Although there was some conflict with the provisions of both the City Plan 2000 and the City Plan 2014, the only significant conflict arose was in respect of the height of the proposed development.

Whilst the height of the proposed development was too high to avoid the finding of some conflict, the Court found that it would not be perceived to be dramatically excessive in the context of existing approved and likely future development in the surrounding area as the planned revitalisation and intensification of the Buranda Precinct is realised.

Accordingly, the grounds in favour of approval, including the extent to which the proposed development responded to the strong economic and community need, led the Court to conclude that the proposed development should be approved notwithstanding the conflict.

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.

Related Articles