Jefflane Pty Ltd v Brisbane City Council
[2001] QPEC 54
•25/07/2001
IN THE PLANNING AND ENVIRONMENT
COURT OF QUEENSLAND
CITATION: Jefflane P/L v Brisbane City Council [2001] QPEC 054 PARTIES: JEFFLANE PTY LTD
(ACN O10 324 660) Applicant v
BRISBANE CITY COUNCIL Respondent FILE NO/S: 3456 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Application ORIGINATING Brisbane COURT: DELIVERED ON: 25 July 2001 DELIVERED AT: Brisbane HEARING DATE: 9, 14 March 2001 and 27 April 2001 JUDGE: N.F. McLauchlan QC DCJ ORDER: Declaration Refused. CATCHWORDS: COUNSEL: M Hinson SC with him W Cochrane for the applicant
P Lyons QC for the respondentSOLICITORS: Kinneally Mahoney for the applicant
Brisbane City Legal Practice for the respondent
This is an application for a declaration pursuant to s.4.1.21(1) of the Integrated
Planning Act that the development application dated 23 June 2000 by the applicant
lodged with the respondent in relation to land located at 25-61 Petrie Terrace –
(a) is not one which pursuant to the Integrated Planning Act requires impact assessment; and
(b) is one which, pursuant to the Integrated Planning Act, requires code assessment.
The application, as lodged, seeks a further order requiring the respondent to assess
the development application on that basis. However, no argument was presented in
support of such an order, and there seems no necessity for any such order to be
made. As stressed by counsel for the applicant, the issue before the court is simply
one of process, that is to say, whether the application should be assessed by way of
impact assessment or code assessment. I shall therefore make no further reference
in these reasons to the order referred to in paragraph 2 of the originating
application.
As already indicated the land in question is located at 25-61 Petrie Terrace in the
City. The land is described as lots 2 and 3 on registered plan 809878 and lots 5 and
6 on registered plan 826295 Parish of North Brisbane. The four parcels of land are
contiguous. Each parcel has a road frontage to Petrie Terrace. Lot 5 RP 826295 is
the site of the Police Barracks, and lot 2 is the site of the “Underground” night club,
formerly used as stables. These two lots have their major frontages to Petrie
Terrace. Lot 6 RP 826295 is vacant land and lies generally behind lot 2, connecting
to Petrie Terrace between lots 2 and 5. It is vacant land. Lot 3 RP 809878 is also
vacant land. It is situated generally behind the Police Barracks and beside the
major area of lot 6. It has access to Petrie Terrace to the south of the Police
Barracks site. Speaking generally the site is a prominent one in the city,
commanding important views of the city and the river, and is a site on which the
existing buildings are of significant heritage interest.
The development application dated 23 June 2000 was lodged with the Council with
a supporting letter dated 26 June 2000 in relation to the above land. The existing
use of the four lots was stated as follows:-
Lot 2 RP809878 - old stables building
- Night club and restaurant
Lot 3 on RP 809878 – vacant
Lot 5 on RP 826295 – vacant former Police BarracksLot 6 on RP 826295 – vacant.
The proposed use was described as follows:-
“Erect high-rise office tower Erect low-rise office tower.
Use existing and new buildings as:
- business premises; - shops;
- restaurants;
- place of assembly (night club).”
The accompanying letter referred to the application drawings of which there were
eight, and identified the development as comprising a high-rise office tower on lot
3, a low-rise office tower on lot 6 with shops on the ground floor levels of both
office buildings, restaurants on the ground floor level of the former Police Barracks
building and retention of the existing night club use on lot 2. The letter also
however indicates use of the stables building as a restaurant in addition to the
existing night club use, and indicates that the ground floor tenancies shown on the
plans submitted in respect of the office buildings are proposed for either restaurant,
shop or business premises use, and that the application seeks approval for any of
these purposes. Further, the application in respect of the Police Barracks building is
confined to the ground floor. The uses of the first and second levels of that building
do not form part of the application. The application also refers to 545 car parking
spaces, referred to as “ancillary car parking”. The plans submitted with the
application indicate basement parking on three levels under the high-rise office
tower with 519 parking spaces, and a further 26 parking spaces at ground level.
The development application indicated that the application was code assessable
under the respondent’s Transitional Planning Scheme. The respondent issued an
acknowledgement notice on 10 July 2000 in which it indicated its view that the
application constituted impact assessable development, and that the application
would therefore be assessed using impact assessment procedures.
The development application having been lodged on 26 June 2000 under the 1987
Town Plan, the application was made and must be processed under the Integrated
Planning Act: s.6.1.28(1). The 1987 Town Plan is a transitional planning scheme
and the application is to be assessed by reference to it: s.6.1.29(3)(b). Whether the
development application requires code assessment or impact assessment depends
upon the provisions of s.6.1.28(2) and (3). The reference in those provisions to the
“repealed Act” is a reference to the Local Government (Planning and Environment)
Act 1990. Sub-sections 2 and 3 provide as follows:-
“(2) If an application [for assessable development to which a transitional planning scheme applies] were an application for the same development under the repealed Act and would have required public notification under the repealed Act –
(a)
the application must be processed as if it were a development application requiring impact assessment; and
(b)
a statement made under s.3.2.3(2)(d) on the acknowledgement notice that an aspect of the development applied for requires impact assessment is taken to mean that the application will be processed as if it were a development application requiring impact assessment.
(3)
If an application [for assessable development to which a transitional planning scheme applies] were an application for the same development under the repealed Act and would not have required public notification under the repealed Act –
(a)
the application must be processed as if it were a development application requiring code assessment; and
(b) a statement made under s.3.2.3(2)(c) on any acknowledgement notice for the application that an aspect of the development applied for requires code assessment is taken to mean that the application will be processed as if it were a development application requiring code assessment;
and
(c) despite s.3.2.3(2)(c), any acknowledgement notice for the application need not refer to codes.”
Whether or not the development application in the present case is code assessable
or impact assessable thus depends upon whether or not an application for the same
development under the repealed Act would have required public notification. That
in turn depends upon whether an application under that Act would have been an
application for a town planning consent or rezoning, or simply for a notification of
conditions for permitted development: See s.4.12, s.4.3 of the repealed Act.
Under the 1987 Town Plan, development in zones was regulated by s.4.3. Under
s.4.3.1 any development specified or ascertainable pursuant to particulars specified
in columns 1 and 2 of the table of development applicable to that zone was
permitted development. Under s.4.3.2 any development specified or ascertainable
pursuant to particulars specified in column 3 of the table of development applicable
to that zone was permissible development, and under s.4.3.3 development specified
or ascertainable pursuant to particulars specified in column 4 of the table of
development applicable to that zone was prohibited development.
Section 6.1.2(3) IPA (provides that a prohibited use in a former planning scheme is
taken to be an expression of policy that the use is inconsistent with the intent of the
zone in which the use is prohibited.
Under s.4.4.1 of the 1987 Town Plan, notwithstanding that development was
permitted development, development specified or ascertainable pursuant to particulars specified in column 2 of the table of development applicable to that zone
was to be carried out in accordance with conditions, and an application for
conditions was to be made under s.24.3.
All of the land, the subject of the development application was contained in a
particular development zone. Provisions in the 1987 Town Plan relating to the
intent for that zone included the following:-
“These zones are intended to apply to lands on which only a particular type of development may be carried out, such development being usually set out in detail and required to meet specified criteria.
Certain types of development are not adequately described by the zones which, for the most part, are too general in the way they have to cater for a wide range of activities in each zone. To overcome this shortcoming a particular development zone may, for example, specify the type of activities to be carried out, the type of building in which such activities are to be carried out, or the level of intensity of such activities.
In general this class of zone is particularly relevant where it is considered that the historic or cultural character of a building, precinct of buildings or area of land should be retained in its present state or a substantially unaltered state, but is not an economically viable form of development in its present use.”
Column 2 of the table of development for the particular development zones
identified as permitted development, development for any of the purposes or
purposes with qualifications applicable to the particular zone where that
development is other than as specified in column 1. Column 1 was limited to
development which did not include the erection of any building or other structure,
other than by way of minor building work.
Lot 5, which is the site of the Police Barracks was zoned Particular Development
282. Lot 2, “The Underground”, was zoned Particular Development 283. Lot 6, which is vacant land was also zoned Particular Development 282. Lot 3, being
vacant land was zoned Particular Development 284. Although these zonings are
zonings under the Brisbane Town Plan 1987 which, since October 2000, has been
replaced by Brisbane City Plan 2000, they remain relevant for the present
application, which was made under the 1987 Town Plan.
The purposes or purposes with qualifications are set out in the particular
development legend referable to each particular development zone. With respect to
PD 282 the legend, so far as is relevant, reads as follows:-
“Apartment building, business premises, child care centre, community dwelling, education establishment, garden centre having a gross floor area not exceeding 70m2, indoor sport and recreation having a gross floor area not exceed 250m2, service industry, light industry having a gross floor area not exceeding 800m2, licensed club, place of assembly, public building, radio station, restaurant, shop where limited to ground storey of any building, veterinary surgery having gross floor area not exceeding 70m2, welfare premises, youth club and car park for not more than 130 vehicle spaces between the hours of 6pm and 6am daily, where:
(A)
the planning unit for any development includes the building commonly referred to as the “Police Barracks”, or that building modified internally in a manner which:
(i)
does not prejudice the retention and appearance of such building;
(ii)
complements and is consistent with the architectural style of such building; and
(iii) is in accordance with plan No 566 SD 01; (iv)
has a gross floor area not exceeding 2800m2 excluding verandahs;
(B) The planning unit for any development to the extent it does
not include the building modified referred to in (A);
(i) has a gross floor area not exceeding 1850 m2;
(ii)
does not contain any building which exceeds one storey above the ground storey level where the total height of such levels does not exceed 9m; and
(C) … .”
The Particular Development Legend for PD 283 reads as follows:-
“Business premises, place of assembly, licensed club and retaurant,
where:
(A)
any development does not prejudice the retention and appearance of the building existing in the zone at 22 December 1989, altered in accordance with plan No 566 SD 02;
(B)
any building involved in any development complements and is consistent with the architectural style of the existing building existing in the zone at 22 December 1989; and
(C) The gross floor area of the planning unit does not exceed
1080m2.”
The Particular Development Legend for PD 284 is as follows:-
“Apartment building, business premises, child care centre, education establishment, garden centre having a gross floor area not exceeding 70m2, indoor sport and recreation having a gross floor area not exceeding 250m2, service industry, light industry having a gross floor area not exceeding 800m2, licensed club, place of assembly, public building, radio station, restaurants, shops where limited to ground storey of any building, veterinary surgery having gross floor area not exceeding 70m2, welfare premises, youth club and car park for not more than 295 vehicle spaces between the hours of 6pm and 6am daily, where the planning unit for any development:
(A) has a total gross floor area not exceeding 13,210m2; (B) does not contain any building of a height in excess of 60m
above natural ground level;(C) is in accordance with plan No 566 SD 03; and (D) … … .”
I accept that in the construction of the particular development legends, the uses
indicated correspond to the column 2 purposes, and the restrictions upon those uses
correspond to the column 2 qualifications. Development, to be permitted
development within these zones must therefore be for one of the uses specified in
the relevant legend and comply with the restrictions therein imposed. A failure to
achieve this will mean that the development proposed is not permitted development,
and since column 3 development (permissible development) is irrelevant in this
case it must then be column 4 development or prohibited development. As such it
would, under the repealed legislation, have required a rezoning application and
public notification, and would therefore require impact assessment under the
Integrated Planning Act. Whether or not the development application in the present case is code assessable therefore depends upon whether or not the development
application conforms to the purposes and qualifications contained in the relevant
development legend. One of the requirements in each of the zones is that the
development be in accordance with a plan which is identified in PD 282 as plan No
566 SD 01, in PD 283 as plan No 566 SD 02 and in PD 284 as plan No 566 SD 03.
The reference to these plans recalls the background to the creation of the particular
development zones now under consideration.
The applicant and the respondent entered into a rezoning deed on 31 July 1990 as a
result of which these particular development zones came into being. Pursuant to the
terms of the deed the respondent applied to the relevant minister pursuant to the
City of Brisbane Town Planning Act for the amendment of the Town Plan by the
exclusion of the land from the commercial zone and its inclusion in the particular
development zones to which reference has been made. The deed and its schedules
indicate an intention by the parties that subject to the said rezoning the applicant
would develop the land generally in accordance with plans numbered 566 SD 01,
566 SD 02, 566 SD 03, 566 SD 04, and 566 SD 05. The only plans mentioned in
the relevant development legends are the first three, and little if anything arises for
consideration in relation to the last two so far as the present development
application is concerned. Plan 566 SD 03 is of considerable importance with
respect to the assessment of the proposed development so far as it concerns lot 3, ie
the high-rise office tower.
No reliance is placed by either party on plan 566 SD 04, but the respondent
contends that the last numbered plan, 566 SD 05 is important in that it indicates the
number of car parking spaces allowed for the development. The plan does indicate basement car parking in two locations for a total of 425 cars whereas the car
parking proposed by the applicant is 545 car spaces. The applicant’s proposal is
said to relate to ancillary car parking, ie parking ancillary to the principal use to be
made of the proposed development, as opposed to a public car park which is not
ancillary to any other use. The reference on plan SD 05 does not make it clear
whether the reference is to a car park serving as a public car park or whether it is a
reference to parking ancillary to the developments proposed on the land. However,
the purposes of the then proposed particular development are set out in the sixth
schedule to the deed, those provisions now appearing in the particular development
legends referable to the particular development zones. The reference in the sixth
schedule is in relation to what is now PD 282 – “car park for not more than 130
vehicle spaces between the hours of 6pm and 6am daily” and, for what is now PD
284 – “car park for not more than 295 vehicle spaces between the hours of 6pm and
6am daily”. This is the language which has been incorporated into the particular
development legends for those two zones. The language is strongly suggestive of a
public car park rather than of ancillary parking and construing the relevant plan –
SD 05 - and the sixth schedule together it seems to me that the proper inference is
that the parking contemplated by the rezoning deed was parking in the form of a
public car park.
Apart from any discretionary consequence which may result from a discrepancy
between the provisions of the zones contained in the Town Plan as a result of
amendment pursuant to the rezoning deed, and the provisions of the deed itself, I
would have thought in any event that both the Council and the applicant are bound
by the provisions of the Town Plan unless it was proper and possible to amend the
Town Plan to produce conformity with the rezoning deed. The question does not, however, need to be determined in my view, because the inference to be drawn
from the deed as a whole conforms to the reasonable construction of the provisions
of the particular development zone in each case, yielding the conclusion that the
deed and the particular development zones concerned made provision for public car
parking and not ancillary parking. The development application does not propose
any development by way of public car parking but merely ancillary car parking. I
therefore do not consider that the development application fails to comply with the
purposes or qualified purposes of the relevant zones so far as car parking is
concerned.
With respect to other matters however I consider that the respondent makes out a
case to show that the development application as submitted does not fall within
column 2 as constituting permitted development. With respect to the Police
Barracks building which is on lot 5 and the stables or Underground night club
which is on lot 2, the development proposed is as follows - with respect to lot 2, a
place of assembly (night club and a restaurant); with respect to lot 5 shops,
restaurant and business premises on the ground floor of the Police Barracks
building.
The present use of lot 2 is as a night club. A requirement of PD 283 is that any
development does not prejudice the retention and appearance of the building
existing in the zone at 22 December 1989 altered in accordance with Plan No 566
SD 02. The addition of a restaurant function to that of a night club might be such as
to involve external work to the building thereby altering its appearance, with
reference, for example, to cooking facilities. In my view it is incumbent upon the
applicant to show that the development which it proposes will not have any such effect and it can only do so by descending to some detail as to what is proposed
with respect to the establishment and running of a restaurant on the premises. The
applicant has the obligation to show that the proposed development will not have
the effect guarded against by the language of the particular development legend
before it can assert that that development is permitted development. It is not a
sufficient answer to say that the respondent might impose conditions which would
ensure that the relevant qualification is observed. The power to impose conditions
applies to a development which is already a permitted development. It is not the
function of that power to give a definite characterisation to an ambiguous
application with respect to its classification as being permitted permissible or
prohibited. Similarly with respect to the uses proposed for the Police Barracks
building. It is a requirement that any internal modification to that building be done
in a manner which does not prejudice the retention and appearance of the building.
It is not clear that a development in the form of shops, restaurant and business
premises or any of them in the ground floor of the Police Barracks building might
not be such as to prejudice the appearance of that building. The respondent cannot
be expected to speculate upon the matter nor, again, is it a matter which the
respondent should deal with by way of the imposition of conditions. It is the
obligation of the applicant to show that the development proposed complies with
the particular requirement, and again it does not do so.
More importantly perhaps, there are in my opinion significant respects in which the
proposed development on lot 3, ie the high-rise office tower, cannot be said to be in
accordance with plan SD 03. Plan SD 03 indicates that apart from a lobby area the
building is to be raised above ground level and that the grounds surrounding the
lobby area are to include gardens and pools and a footpath to produce a general plaza effect. Moreover on the first floor there is a void in the drawings above the
pool, which is adjacent to the lobby. The grounds surrounding the building and
extending over to the proposed development on lot 6 contain four pools in all plus a
number of trees and garden features. The development proposed by the applicant,
however, takes the building down to ground level and omits the pools and gardens
generally, replacing them with some above ground parking. The footpath is treated
similarly. There are a number of trees incorporated in the ground floor and site plan
but the overall effect is very different from what is envisaged in plan SD 03. As
envisaged in that plan there is an open view beneath the building to the other
heritage buildings nearby and to the city, and pedestrian movement around the site
is facilitated producing an effect of space, and openness. On the other hand, in the
development proposed pools and formally arranged landscaping have been lost, and
the ease with which people might move between sites has been adversely affected
both by the change to the high-rise building and by the additional ground level car
parking. Further, the building was designed to retain heritage characteristics and in
particular the design and placement of balconies on the building seek that result.
The building proposed by the applicant sacrifices that objective.
In my view it matters not whether attention is paid to the words “in accordance with
Plan No 566 SD 03” contained in the legend, or whether reference is made to the
expression “generally in accordance with” the various plans contained in the
rezoning deed. I think that the expression “in accordance with” in the
circumstances of this case means “generally in accordance with” so that a variance
in some matters of detail would not prejudice a conclusion that a particular
development accorded with the plans concerned. However, in my view, the raising
of the building above ground level with the void on the first floor above one of the pools, the general landscaping effect of the site and the design of the building to
follow desired heritage effects, are defining aspects of the development permitted in
accordance with Plan SD 03. It is not just a matter of detail in my view: the
development proposed by the applicant represents a significant departure from what
Plan SD 03 contemplates, and what therefore the development legend of the zone
requires. In my opinion the disconformity between the proposed development of
the high-rise tower and the site on lot 3, and what is depicted in Plan SD 03 is
sufficient in itself to show that the applicant’s development application is not code
assessable. As explained earlier in these reasons the result is that it is impact
assessable.
The respondent urged various reasons why, as a matter of discretion, the court
should in any event refuse to make the declaration sought by the applicant. These
reasons included the proposition that the court should not make a declaration that
was inconsistent with the obligations of the applicant under the rezoning deed, and
that notice of an intention to resume a part of the land has been given so that it is, to
say the least, doubtful that the development could proceed in the form in which it
has been presented. There is also other evidence concerning a possible intention of
the applicant to sell the land in any event rather than to develop it and it appears
also to be the case that subsequently to the development application presently under
consideration, the applicant made a further and different development application in
respect of the land in March of this year. In the event it is not necessary for me to
decide these and similar matters, since I have come to the view that the declaration
should be refused for the reasons I have given.
In the result the declaration sought is refused.
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