Rankeilor Developments Pty Ltd v Brisbane City Council

[2010] QPEC 134

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Rankeilor Developments Pty Ltd v Brisbane City Council [2010] QPEC 134

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:

7 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2010

JUDGE:

Rackemann DCJ

ORDER:

That the application made on the 1^st December 2010 be dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against refusal to change approval – proposed change to multi-unit development to decrease building envelope but increase density – whether permissible change

Kangaroo Point Residents Association & Ors v Brisbane City Council& Ors [2001] QPELR 321

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

This is an appeal from the Council's refusal of an application to change a development approval.  The approval sought to be changed was 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 Streets, Kangaroo Point.

The approved development is a high rise apartment building of some appreciative 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.  Not only does it have a favourable location, but the units themselves were so sized and configured to be suitable for that end of the market.  It featured not only one, two and three-bedroom units, but also a number of four and, indeed, five-bedroom units.

It would appear that, with the changing economic climate, the developer now wishes to develop the complex with more modestly sized units to meet a somewhat lower price point in the market.  Accordingly, the developer wishes to eliminate the four and five-bedroom units, to decrease the number of three-bedroom units and to increase substantially the number of one and two-bedroom units.

The developer proposes some reduction in the overall height of the building in absolute terms although, by adopting lower floor to ceiling heights, it in fact proposes to increase the number of storeys.

The application to Council sought a change which would increase the total number of units from 114 to 192, which would also include an increase in the number of bedrooms from 262 to 341. In terms of composition, the most striking change was to be to the number of two-bedroom units which was to increase from 32 to 103.  The total gross floor area of the proposal was to increase from 4,950 square metres to 17,344.7 square metres.

The type of change which may be made pursuant to a request under section 349 of the Sustainable Planning Act (2009) (“SPA”) is a “permissible change.”  That expression is defined in section 367 as follows:

1. A permissible change, for a development approval, is a change to the approval that would not —

(a)       result in a substantially different development; or

(b)if the application for the approval were remade including the change —

(i)require referral to additional concurrence agencies; or

(ii) for an approval for assessable development that previously did not require impact assessment — require impact assessment; or

(c)for an approval for assessable development that previously required impact assessment — be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or

(d)cause development to which the approval relates to include any prohibited development."

For present purposes subparagraphs (b) and (d) are irrelevant. The Council's reasons for refusal of the application for a change included that it was not satisfied in relation to paragraphs (a) and (c) of the definition of a permissible change.

Following the institution of the appeal there have been negotiations between the Council and the developer leading to a different proposal which falls somewhere between the existing approval and the change which was initially requested of the Council.  The Council is supportive of the Court making an order approving the change if it is satisfied that the change is a permissible change under section 376 of SPA.  As to whether the proposal is a permissible change or not, the Council neither supports nor opposes such a conclusion being drawn, but rather leaves the matter for the Court to decide.

The proposal, as it is brought before the Court, would still involve, at least in a numerical sense, a significant change to the number and configuration of the units and overall gross floor area. Compared to the current approval, that for which the appellant now contends, would increase gross floor area from 14,950 square metres to 16,690 square metres. It would increase the number of bedrooms within the development from 262 to 309 and would increase the total number of units from 114 to 173.

This raises questions about the compliance of the proposal with the definition of a permissible change and, in particular, subparagraphs (a) and (c) of the definition.
Subparagraph (c) of the definition focuses upon the likelihood of the change causing a person to make a properly made submission objecting to the proposed change if circumstances allowed.  It focuses upon the change rather than to the development itself.

Senior counsel for the appellant drew my attention to the decision of Quirk DCJ in Kangaroo Point Residents Association & Ors v Brisbane City Council& Ors [2001] QPELR 321 where for a different purpose his Honour observed the fact that an ameliorative change might not go so far as to overcome objection from someone who was opposed to the development was not a matter which prevented a change from being considered to be appropriate under section 3.2.10 of the Integrated Planning Act (1997).

I agree that whether the changed proposal might attract some objection is not the test.  The test is whether it would provoke a submission objecting to the proposed change.  Obviously someone who is opposed to a development by reason, for example, of its likely impact on views would not object to a change which lessened those impacts, albeit that they might still be opposed to the development.

The change in this case, however, is not of that character insofar as gross floor area and density is concerned.  It may be considered to be of that character insofar as the overall height and bulk of the building is concerned, because there is some lessening of the overall building envelope of the high rise component.  If, therefore, the change was limited to a change to the envelope of the building, then it would seem to me that it would be a change which would be unlikely to cause a submission objecting to the proposed change, but that is not the only change which is proposed.

As I have already noted, the change includes changes which will increase, to a significant degree, the number of units and the gross floor area of the development.  When one looks at the submissions to the original application, it can be seen that, whilst the height and the bulk of the building were important matters of objection, so too were matters of gross floor area and overdevelopment.  As Mr Litster SC pointed out, those two topics were sometimes interweaved, but reference to the material clearly shows an objection to the amount of gross floor area, quite independently to objections to the height of the proposal.

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. 

It was pointed out that the appellant's traffic engineer, in his analysis, concludes that there would be an insignificant impact on the nearby intersections by reason of the extra people to be accommodated on the site.  However, the question ultimately is not whether the proposed change is acceptable. The question is whether it would be likely to cause a person to make a properly made submission objecting to the proposed change if the circumstance allowed.

The material before me falls short of persuading me that the change would not be likely to provoke such objection.  For that reason, I am not persuaded that the change now proposed is a permissible change.  It is therefore unnecessary for me to consider whether it would also fall foul of subsection (a) of the definition.

Accordingly I dismiss the application which was made on the 1st of December 2010.  I do not, at this stage, dismiss the appeal.