Rankeilor Developments Pty Ltd v Brisbane City Council

[2010] QPEC 151

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Rankeilor Developments Pty Ltd v Brisbane City Council [2010] QPEC 151

PARTIES:

RANKEILOR DEVELOPMENTS PTY LTD

(appellants)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

BD 2390 of 2010

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 December 2010

JUDGE:

Rackemann DCJ

ORDER:

Order as per draft

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against refusal to change approval – whether permissible change – where gross floor area decreased and reduced building height

COUNSEL:

Mr Litster SC and Ms Kefford for the appellant

Ms Johnston (solicitor) for the respondent

SOLICITORS:

Norton Rose for the appellant

Brisbane City Legal Practice for the respondent

HIS HONOUR:  This is an appeal from the council's refusal of an application to change a development approval.  The approval sought to be changed is a development permit for a material change of use for a multi-unit dwelling and a preliminary approval for carrying out building work, in respect of land located at Lambert and Cairns Street, Kangaroo Point.

The application was refused by the Council for reasons which included that it did not consider that the change would be a permissible change as defined under the Act.  The developer sought to address that concern by an amended plan for which it sought approval of this Court on the 7th of December.

On that day I refused to amend the proposal in accordance with that plan because I found that the proposed amended plan would also not constitute a permissible change.  My reasons are set out at Rankeilor Developments Pty Ltd v Brisbane City Council [2010] QPEC 134.

As I noted in my reasons at that time, the approved development is a high-rise apartment building of some appreciable bulk in a T-shape, that is, the storeys in the lower half of the building are narrower than those in the top half.

The proposal, as it was approved, was evidently intended to be marketed towards the top end of the market.  It featured a number of units which were of four and five bedroom configurations.  It also had quite generous floor to ceiling heights.

With the change of the market dynamics the developer wishes to change the mix, so that it is more concentrated on a larger number of smaller units.  The previous proposal sought to achieve that within a building envelope that was a little lower than that approved, however, the changes then proposed included not only a significant increase in the number of units but also to the gross floor area and the number of bedrooms.

In my reasons I noted that issues of density and gross floor area were to the fore in objections to the proposal when the original proposal was assessed.  I considered that: "It is difficult in those circumstances to conclude that a change which still proposes such a significant increase in the number of units, the number of bedrooms and the gross floor area would be unlikely to attract a submission objecting to the proposed change."

For that reason I concluded that the proposed amended approval was not a permissible change.  Since then the developer has again reconsidered its position and returns today to seek different changes to the approval to accommodate the further amended plan.

Similarly to the most recently rejected plan, it increases the number of units and skews the mix more towards the smaller units than the larger units, however, it also:

(a)       Slightly reduces, rather than increases, the gross floor area.

(b) Reduces the number of storeys, from 20, plus roof terrace, to 18, plus roof terrace, as well as reducing the height of the overall envelope of the high-rise from RL90.5 to RL78.2.

The number of terraces at Lambert Street is increased by the addition of two terraces but the width of those terraces is reduced.  Other changes are set out in the affidavit of Simon James Forsyth.

In the circumstances, whilst the number of units and terraces is to be increased to achieve the change of unit mix to meet the current market, the current amended proposal does not do so at the expense of increasing gross floor area or any significant increase in the number of bedrooms on site. In short, bulk and scale is to be reduced and density not significantly increased, notwithstanding the change in the mix of units. 

In those circumstances I am satisfied that this most recent amendment does embody changes to the development application which are permissible changes and, in particular, that they do not result in a substantially different form of development and are unlikely to have caused a person to make a properly made submission objecting to the proposed change if the circumstances allowed.

Accordingly I am prepared to make the order sought.