Colman v Brisbane City Council

[2002] QPEC 3

PLANNING AND ENVIRONMENTCOURT
OF QUEENSLAND

CITATION:

Colman &  Ors v Brisbane City Council [2002] QPEC 003

PARTIES:

CHARLES GRAHAM COLMAN, DOROTHY ELIZABETH WILLIAMS, CHRISTOPHER AND APARNA LEE
Appellants
-v-
BRISBANE CITY COUNCIL
Respondent
and
PLANNING INITIATIVES
Co-Respondent

and

PAUL HILTON SHERWIN AND TANIA MICHELLE SIMPSON
Appellants
-v-
BRISBANE CITY COUNCIL
Respondent
and
PLANNING INITIATIVES
Co-Respondent

and

HERMANN SCHRAUT
Appellant
-v-
BRISBANE CITY COUNCIL
Respondent
and
PLANNING INITIATIVES
Co-Respondent

FILE NO/S:

4426/01
4430/01
4455/01

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 January 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29 January 2002

JUDGE:

Judge Alan Wilson SC

ORDER:

CATCHWORDS:

PLANNING AND ENVIRONMENT – Integrated Planning Act s. 4.1.52(2)(b) – leave to amend development application the subject of Submitter Appeals – circumstances in which court may approve an amendment.

BUILDING CONTROL AND TOWN PLANNING – leave to amend development application the subject of Submitter Appeals – circumstances in which court may approve an amendment.

Integrated Planning Act s. 4.1.52(2)(b)

COUNSEL:

Dr Sherwin, in person for all appellants
Mr T Trotter for the respondent Brisbane City Council
Mr Lyons QC for the co-respondent

SOLICITORS:

Appellants in person
BCLP
Connor O’Meara

1. This is an application for leave to amend a development application which has been approved by the respondent but which is the subject of Submitter Appeals to this court.

1. The proceedings concern three contiguous parcels of land located at 46-48 Boundary Street and 5 Manning Streets, South Brisbane, containing 2,628 square metres.  The land falls from the Boundary Street frontage to the Manning Street frontage, and from north to south along Boundary Street, and from north to approximately south east along Manning Street, away from Boundary Street.

1. In Manning Street existing development is generally commercial or light industrial save one house property on the south eastern side of the subject site which is also used for commercial purposes.  In Boundary Street, development is more mixed and includes offices, an electricity substation, a resort, a carpark, and a number of multi unit dwellings.  Edmondstone Street, which joins Boundary Street to the south of the site, and which is parallel to Manning Street, contains a mixture of commercial and light industry uses.  To the west, Brereton Street contains some detached houses, and multi unit dwellings.  All the appellants have premises on the southern side of Brereton Street.

1. The co-respondent’s development proposal involves the erection of three buildings which (as originally approved by the respondent) would contain 53 dwelling units, and a commercial unit with a gross floor area of 120 square metres, with on-site carparking for 79 vehicles. 

1. Application was originally made on 3 August 2000.  During the course of assessment by the respondent the design was altered in minor ways.  Following public notification the respondent received six submissions objecting to the proposal on a number of grounds including concerns regarding height/amenity, setbacks, parking/traffic, character/design and site coverage.  Notwithstanding these, Council approved the application on 8 February 2001.  The applicant subsequently made further representations regarding aspects of the approved application and Council issued a Negotiated Decision Notice on 17 July 2001.  The present appeals were brought by some of the submitters, with premises at Nos. 2, 6, 8 and 12 Brereton Street.

1. When the hearing of these appeals commenced on 29 January 2002, I was informed by all parties that following discussions between them agreement had been reached for substantial changes to the approved building and, if leave to amend the Development Application to reflect those changes was granted an order could be presented which would resolve all appeals.  Mr Lyons QC provided written submissions in support of the application for leave to amend and tendered reports from a town planner, an architect, a consulting engineer and environmental scientist, and a traffic engineer, each with a supplement addressing the changes.  In short, those changes involve altering the buildings facing Boundary Street (as approved) by reducing the height where they join, but elsewhere increasing that height; also, increasing the height of the building fronting Manning Street; and, increasing the number of residential units from 53 to 56, and the gross floor area of the building from 4,770 to 5,973 square metres.

1. For the appellants, the effect of these changes is, relevantly, to significantly alter the shape and dimension of the buildings facing Boundary Street so that, whereas those two buildings originally presented a fairly monolithic structure of relatively constant height (albeit with minor variations) (Exhibit 6) there is now, where the buildings join, a significant height reduction creating, in effect, a large aperture in the middle, upper half of the whole structure (Affidavit Michael John Connor filed by leave 29 January 2002, Exhibit MJC-2).

1. When the application was first made development in Brisbane was regulated by the Town Plan for the City of Brisbane 1987 (1987 Town Plan).  That Plan included the South Brisbane Area Development Control Plan (DCP).  This site was in the DCP area.  It envisaged a mix of commercial and residential development: DCP ss 1.1.2, 10.1, and 10.2.  Development height was restricted to 12 metres above ground level, and three storeys, although these could be relaxed: ss 10.3.2(a), (b) and (c).  Gross floor area was limited to 1.5 x site area (here 3,942 square metres) although, again, this could be relaxed: s 10.3.33.

1. The Brisbane City Plan 2000 (City Plan 2000) came into effect on 20 October 2000.  It included the South Brisbane Local Plan (Local Plan).  This site is within the area subject to the Local Plan under which an “Acceptable Solution” for the height of the building is four storeys, measured above ground level, where the highest storey is to be used for residential development (as here): Local Plan ss 5.10, A2.1.  The Acceptable Solution for gross floor area appears to be, again, 1.5 times site area: ss 5.10, A3.1.

1. Brisbane City Council has prepared a new Local Plan in draft form (the draft LP), and exhibition of it has been completed.  Consistency with the draft LP is, therefore, relevant to a decision to approve an application: Yu Feng Pty Ltd v Maroochy Shire Council (2001) Qd R 306, at 328-9. Under the draft LP the “Acceptable Solution”

   
    

   concerning height is 20 metres, and six storeys, and for the gross floor area, 2.5 times site area: ss 5.10, A5.1 and A5.3.  The amended proposal incorporates an additional level to the southern section of the Boundary Street building, taking it from five storeys aboveground to six but it does not exceed 20 metres. The Manning Street building is to be increased, by the amendments, from six to seven levels above ground level but it will remain, again, below the 20 metre height limitation under Acceptable Solution A5.1.  The gross floor area would result in the plot ratio of 2.3:1, within Acceptable Solution A5.3.  The Integrated Planning Act 1997 (IPA) provides, under s 4.1.52(2)(a) that the court decide this appeal on the laws and policies applying when the application was made, but it can give such weight to any new laws and policies as it considers appropriate.

1. The court’s power to approve an amendment of an application is found, by implication, in IPA s 4.1.52(2) which provides, relevantly:

“(2)       However, if the appellant is the applicant or a submitter for a development application, the court-

...

(b)must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”

1. The term “minor change” is not defined but there is a definition in IPA, Schedule 10 for a Development Approval:

“Minor change, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change –
(a)        require referral to additional concurrence agencies; or

(b)cause development previously requiring only code assessment to require impact assessment; or

(c)for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.”

It has been held, in other cases, that this definition is of some assistance in determining whether a court should permit a change to an application: Carillon Developments Pty Ltd v Maroochy Shire Council (2000) QPELR 216; and, see Stradbroke Island Management Organisation Inc v Redland Shire Council & Ors (2001) QPEC 074.

1. Referral to a “concurrence agency” is not required.  The application, as approved, required impact assessment, so the only relevant consideration is whether the changed application would be likely to cause a person to make a submission objecting to the proposal if the circumstances allowed.

1. The essential question is, then, whether this court can be satisfied that the changed application would not be likely to attract an adverse submission that was not provoked by the proposal, in its original form: Carillon (supra), at para 14 and, see Kangaroo Point Residents’ Association v Brisbane City Council (2001) QPELR 321, at paras. 3-8.

1. The majority of the surrounding land uses are non-residential, and include offices, warehouses, light industry and showrooms.  It seems improbable any of these users would, now, advance an adverse submission.  While persons involved in commercial and light industrial activities might object to the mere presence of residential development (on the ground that it might constrain their activities), the existing light industry activities (which include tailoring, and computer repairs) do not generate noise and other emissions that would impact upon the residential amenity of the future occupants of the subject site.  These users do not appear to operate outside normal business hours and would, then, ordinarily be closed when future residents of the proposed building will be at home (and vice versa, during daylight hours).  Absent something unusual (for example, an increase in the extent to which the exposure of a business is restricted by a larger building) it is difficult to see any basis upon which these users might object to changes of the kind proposed. 

1. Potential objectors might more readily be found among those whose residential amenity could be affected.  Generally, these persons are located to the west of the site.  However, the proposed changes have obviously brought benefits to a number of these persons, who are appellants here and have shown sufficient interest to appeal against the original approval, support the amendment, and signify a willingness to withdraw their opposition if it is permitted.  They obviously consider the benefit achieved by breaking up the Boundary Street facade is more significant than the increases in the size of the development.  Their approval must be a powerful consideration.

1. In the present context, the particular question is whether a person who would not have objected to the original, approved building with a maximum height of 16 metres would object to the changed application, where the maximum height is raised to 20 metres.  Firstly, it might be said that a potential objector opposed to a taller building in the area would object whether the height was 20, or 16 metres.  The conduct of the submitters here gives rise to a strong and reasonable inference that the increase in height of itself would be unlikely to provoke fresh objection.  The recent report of the architect Mr Proberts (Exhibit 2A) shows that, for these residential users, city views are cut off by a three storey building so the increase in height of parts of this building will have no effect on skyline views.  This has  relevance to potential objectors on the other side of Boundary Street including, in particular, the Sapphire Resort, on the corner of Boundary and Brereton Streets.  As Mr Proberts’ report shows, the approximately three storey skyline of any proposed development would block views of the city or skyline from this resort which are, then, unaffected by the changes – save that, arguably, the greater articulation introduced to the Boundary Street frontage of the development is an improvement, because the void introduced to the higher levels of the centre of the building will provide the opportunity to obtain a greater depth of view at that point.

1. It is also difficult to conceive of any objection to the increase in the gross floor area; or, that an objector would not oppose 53 units, but make an adverse submission to 56. 

1. Nor should the proposed limitation of the use of the commercial unit to office purposes provoke an objection.  This was always something in prospect, in any event (Condition 6 of the Negotiated Decision Notice permitted of the use of this area for business purposes, or shop). 

1. Support for these conclusions is provided in the evidence of the experts mentioned earlier, each of whom has delivered a supplementary report addressing the amendments (analysing their effect on the immediate area, and directly addressing the likelihood they might attract new objections) and supporting the view the changes would be unlikely to provoke objection. 

1. I find, then, that the changed application would not be likely to attract an adverse submission that was not provoked by the proposal, in its original form.