BTS Properties (Qld) Pty Ltd v Brisbane City Council & Ors [2015] QPEC 47

In a recent decision, the Planning and Environment Court has dismissed an appeal by a developer against Brisbane City Council’s refusal of a development application for a seven storey apartment building at Griffith Street, one of New Farm’s most desirable riverfront streets. The developer’s appeal was strongly contested by both the Council and a number of nearby residents who had initially made submissions against the proposed development.

Background

The proposed development was for a 7 storey apartment building situated at 9 Griffith Street, New Farm, adjoining the Brisbane River (the Proposal). Neighbouring the Proposal was an apartment complex known as ‘Solitaire Apartments’ (whose residents joined the appeal) and two, two-storey houses. In order to take advantage of the exclusive riverfront location and city views, the Proposal extended into the Waterway Corridor (a protected setback distance from the Brisbane River) by 7.5m. The Proposal also had a large plot ratio of approximately 1.7:1 (where the Planning Scheme sought a plot ratio of closer to 1:1).

Issues

While a number of issues were litigated between the parties, the two primary issues in the appeal were:

  1. whether the Proposal’s bulk and scale was incompatible with buildings in the vicinity and therefore in conflict with P2 of the Local Plan; and
  2. whether the Proposal’s intrusion into the 20m Waterway Corridor was in conflict with P1 of the Waterway Code.

Findings

The Court dismissed the developer’s appeal thereby confirming Brisbane City Council’s initial refusal of the development application.

The Court found that the Proposal was still in conflict with P2 of the Local Plan as the plot ratio of 1.7:1 meant that the building size and bulk of the Proposal was incompatible with the medium density nature of the locality. The Court found that only one other building within the vicinity had a plot ratio in excess of 1.5:1. That building was Gemini Towers, a development from many decades ago that had a building form that the current planning instruments for this part of New Farm did not seek to have replicated in contemporary developments.

The Court also found that the Proposal was in conflict with P1 of the Waterway Code. The Court made such a finding seemingly on the basis of both the intrusion of the Proposal into the 20m setback area from the Brisbane River and also the fact that this intrusion included large and bulky built form.

What this decision means

This decision serves as a reminder to property developers that building bulk and scale are fundamental issues when an assessment manager (be it the Council or the Court) assesses a proposed development. Bulk and scale are particularly important when the applicable planning instruments call for an assessment about whether a proposed development will be compatible with adjoining buildings and other buildings in the vicinity. The decision also gives hope to residents who hold concerns about the impacts of nearby development which may be considered over-development.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

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