R&L Badcock Builders v Brisbane City Council

[2013] QPEC 71

[2013] QPEC 71

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 723 of 2010

R & L BADCOCK BUILDERS and ANOTHER          Appellants

and

BRISBANE CITY COUNCIL and OTHERS                Respondents

BRISBANE

11.35 AM, FRIDAY, 20 SEPTEMBER 2013

JUDGMENT

CATCHWORDS

In developer’s appeal, approval of a ‘multi’-storey mixed development refused by Council - later coming into effect of Neighbourhood Plan broadened support for the proposal - Council and co-respondent adverse submitter appeal joined in inviting the court  to grant approval on the basis of a “minor change”

Sustainable Planning Act 2009 s350(1)(d), s350(2)

HIS HONOUR:   The court becomes the assessment manager in respect of the appellant’s development application for a 14 storey mixed use development on the corner of Lambert Road and Clarence Road, Indooroopilly.  The Council refused the application, which conflicted with the planning arrangements that contemplated a height limit of only three or four storeys.  The history of the site has been colourful.  Those frequenting the area for some years were treated to the prospect of a Queenslander on the corner proper, which had been entombed in corrugated, galvanised iron and identified as “the charm of timber and tin”. 

The parties have resolved matters to their mutual satisfaction, including 14 correspondents by election, who are mainly if not entirely local, residents.  Mr O’Brien of counsel representing them, indicated they were content for the court to make the order proposed by Mr Kevin, representing the appellant.  The Council, represented by Ms Johnstone, takes the same attitude.  Nonetheless it’s incumbent upon the court to be satisfied that the development ought to be approved, given its role as assessment manager.  The court does necessarily depend upon the expertise of others who have worked on the plans and proposal, to get them to the stage they're at today, and on appropriate conditions included in the approval package in the court’s proposed order. 

A great deal of technical material underlies that work.  Changes have been made to the proposal and no doubt explain the now cooperative attitude of the respondent and co-respondents by election.  Most notably the height of the development has been reduced from 14 storeys originally proposed to 9, which is a potentially misleading description of the 10 levels in the structure now proposed.  Technical aspects of the definition of storey explain what might seem to be a discrepancy.  The bulky appearance, which the original proposal might have been thought to have, is ameliorated by the separation above third storey level of the built form to one, present as two separate towers.  Mr Lockhart’s affidavit helpfully summarises the changes as a prelude to setting out the detail of them in tabular form over several pages. 

The changes identified by Mr Lockhart are as follows: (a) the part of the development application for preliminary approval under section 3.1.5 of the Integrated Planning Act 1997 for building work (demolition of two pre-1946 houses in the demolition control precinct) has been abandoned due to the subject land no longer being in a demolition control precinct; (b) the height of the proposed development has been reduced from 14 storeys to 10 storeys; (c) the proposed development has been redesigned to appear as two separate buildings from level 3 upward; (d) the number of dwellings proposed has been increased from 137 dwellings to 148 dwellings; (e) the gross floor area of the retail shops has been slightly increased from 346 square metres to 368 square metres; (f) the gross floor area of the buildings has been increased from approximately 9431 square metres to 9966 square metres; (g) the car park areas have been decreased in size and the number of car park spaces has been decreased from 210 to 197; (h) the deep planting areas have been increased from 300 square metres (podium deep planting only) to 676.66 square metres (encompassing the significant corner tree, deep planting and deep planting areas).

Paragraph (a) describes the culmination of the story of the original corner Queenslander adverted to above, which was relocated slightly up the hill and painted to present in an attractive way.  Perhaps sadly from the point of view of some, it is now to go.  The shops referred to are on the ground floor, essentially in Lambert Road, across which are other long-established shops, as there are on the corner diagonally opposite.  Reduction in car parking provision is in the present complex appropriately seen as a benefit by providing encouragement for use of the railway, Indooroopilly Station being only a very short walk from the proposal; the area is well-served by buses as well.  Of course it’s also within easy distance of Indooroopilly Shopping Town and a large number of facilities of many kinds are west of the railway line. 

The notice of appeal effectively acknowledged conflict with the planning arrangements of the time, but set out grounds which were contended to justify approval of the proposal notwithstanding that conflict.  From the point of view of the proposal, there’s been a highly favourable change in the coming into effect on the 2^nd of July 2012 of the Indooroopilly Centre Neighbourhood Plan. Mr Kevin has referred to section 350 of the Sustainable Planning Act 2009, subsection (2) of which provides that “In deciding whether a change is a minor change, under subsection (1)(d) the planning instruments or law in force at the time the change was made apply. Having regard to the subparagraphs of subsection (1)(d), the changes proposed here are minor. The Indooroopilly Centre Neighbourhood Plan is extraordinarily welcoming of the proposal. The Court, in the circumstances of this case, ought to give it the determinative weight. It’s enough to refer to development principles, which include 2.3: “Residential growth is located within comfortable walking distance of existing or likely future public transport, business and services,” etcetera. The site is within precinct 1, which in fact covers nearly all of the neighbourhood plan area, and that contemplates higher density, mixed use development.

The code deals with the relevant precinct - precinct 1, Indooroopilly multipurpose centre in section 5.2, P1 of which expects that development includes a mix of commercial and residential land uses that provide the level of activity needed to support the role and function of each sub-precinct and street in the centre.  The acceptable solutions include development fronting Lambert Road achieving a specified land use mix featuring non-residential (shop, café, restaurant, office) ground-floor and podium levels, and residential above podium level. 

The table of maximum building heights and maximum gross floor areas indicates for the site which is in category C: three times the area of the site.  The current proposal exceeds that the relevant ratio being 3.51.  It’s only in that respect that the Indooroopilly Centre Neighbourhood plan produces an issue.  The site has the benefit of a corner location so it can, in my view, comfortably and attractively accommodate a greater GFA and thus additional residences, which will give more people the opportunity to reside in this salubrious and convenient location.  There is also a minor exceedance in height of the building where the fall in the level of the terrain in the very corner meant that to a very limited extent of the building, generally well

below the 35 metre above noted ground level benchmark is a little higher.  The proposal and its change for ought to be approved and that there be an order in terms of the initial draft.  All right with that?

MR KEVIN:   Thank you, your Honour.

HIS HONOUR:   Thanks everyone. 

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