Planning and Environment Court refuses proposed minor change to multi-unit dwelling as it would result in a substantially different development

In brief

The case of GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33 concerned an appeal to the Planning and Environment Court against the Brisbane City Council's (Council) decision to refuse one aspect of a minor change application. The application was in relation to a development approval granted for a 15 storey multi-unit dwelling located at 2 Scott Street, Kangaroo Point.
 
The Council approved 10 changes identified in the application but refused to approve one change, which related to the extension of the slab of the multi-unit dwelling on the basis that it was not a minor change. Accordingly, the only issue raised in the appeal was in respect of whether the refused change constituted a minor change.

The Court held that the proposed change would result in a substantially different development to what was originally approved. The Court found that the proposed change unacceptably impacted the adjacent heritage building site. Accordingly, the Court confirmed the Council's decision to refuse the proposed change and dismissed the appeal.

Council argued that the proposed change would result in a substantially different development

The multi-unit dwelling is cantilevered from its third level to overhang an adjacent heritage listed building, which is included in both the Queensland Heritage Register and the local heritage register. The proposed change requires the multi-unit dwelling to extend the slab on its western elevation beyond the roof of the heritage building.
 
The Council relied on the Brisbane City Plan 2014 (City Plan) and the Development Assessment Rules (DAR) to argue that the proposed change would result in a substantially different development. The Council asserted that the proposed change was not a minor change as it was inconsistent with multiple provisions of the City Plan.
 
The Council argued that the proposed change would unacceptably compromise the heritage site by increasing the severity of its impacts, and rendering the heritage building less prominent by undermining its cultural heritage significance. Council further argued that the proposed change would result in a dramatic change to the built form of the multi-unit dwelling in respect of scale and bulk.

Court referred to relevant planning instruments to determine whether the proposed change was minor

The change application was made and decided under section 78 and section 81 of the Planning Act 2016 (PA). Under section 81 of the PA, the application must be seeking a minor change to a development approval. Schedule 2 of the PA relevantly provides that a minor change means a change that "would not result in substantially different development."

Schedule 1 of the DAR states that a change may be considered to result in a substantially different development "where the change dramatically changes the built form in terms of scale, bulk and appearance" or "introduces new impacts or increases the severity of known impacts."

The Court acknowledged that there are no stated legislative requirements to consider the provisions in Schedule 1 of the DAR, however, both parties accepted that it was appropriate to do so. The Court clarified that whether the proposed change constitutes a minor change is a matter of fact and, therefore, should be considered broadly and fairly within the context of the PA and DAR.

The Court accepted the view of the Council's expert that matters involving heritage sites warrant careful analysis given the City Plan's clear intent to protect and conserve them. This approach was accepted in the case of Kirkham v Brisbane City Council [2007] QPEC 106. The Court held that the City Plan’s intent is specific to the site and raises a higher level of scrutiny as a result of this. 

Court found that the proposed change increased the severity of impacts on the heritage site

The Court took into account the heritage site’s citation in the Queensland Heritage Register. The Court clarified that the specific settings of the heritage site such as curtilage and garden area had no relevance in this issue. Rather, the Court stated that the desirability of an ongoing opportunity to appreciate and understand the heritage site was most relevant. The Court held that the specific impact on this opportunity must be considered when determining the overall impacts on the cultural heritage significance of the heritage site.

The Court reviewed expert evidence submitted by both parties regarding the impacts of the proposed change. The Court rejected the Appellant’s expert evidence that the proposed change did not make a significant difference to the heritage site's cultural heritage significance.
 
The Court accepted the evidence of the Council's expert that the original development was already a generous encroachment into a local heritage place. The Court found that the proposed change increased the severity of the existing impacts to an unacceptable level. The Court stated that extending the multi-unit dwelling’s slab would diminish the opportunity to understand and appreciate the heritage site. The Court also found that the proposed change would negatively impact how the heritage site is perceived in the local area. The Court held that these factors resulted in a substantially different development.

Court found that the proposed change did not result in a dramatic change to the development’s built form

The Court accepted the evidence of the Council's expert and acknowledged that the proposed change resulted in specific design alterations to the multi-unit dwelling. Expert evidence highlighted numerous individual alterations, including increased elevation, colour variation of the façade and new floor plan allocations.

However, the Court formed the view that these alterations would not result in a dramatic change to the multi-unit dwelling's built form in respect of scale and bulk. The Court held that the alterations were only relevant to the extent that they would increase the severity of existing impacts on the heritage site.

Court confirmed the Council’s decision that the proposed change was not minor

The Court concluded that the proposed change was not minor as it would unacceptably affect the heritage site by crowding its surrounding area and hindering the ability to understand and appreciate its cultural heritage significance. The Court reiterated the importance of conserving local heritage sites in accordance with the specific intent of the City Plan.

The Court affirmed the Council’s decision to refuse the proposed change and dismissed the appeal on that basis.