Norfolk Estates Pty Ltd v Brisbane City Council & Ors [2016] QPEC 9

The Queensland Planning and Environment Court has recently dismissed a developer’s appeal of Brisbane City Council’s refusal of a development application for a 10 storey apartment building at Oxlade Drive, New Farm. This is the second decision of the Court in recent times, where a developer has unsuccessfully appealed against a Council refusal of a Multi-Unit Dwelling proposal in New Farm which exceeded the anticipated height, bulk and scale controls.

Background

The proposed development was for a 10 storey apartment building situated at 140 and 142 Oxlade Drive New Farm, adjoining the Brisbane River and Merthyr Park (the Proposal). The subject site comprised two adjoining lots with a total area of 810m2 and had a frontage of 20 metres and a depth of approximately 40 metres. Neighbouring the Proposal were two apartment complexes, to the west, an 11 storey building known as ‘Kirribilli’ (the Body Corporate and residents were parties to the appeal) and to the east, a four storey building known as ‘Edgewater’.

Issues

The primary issues between the parties were:

  1. Whether the Proposal’s height, bulk and scale was inconsistent with the intended character of the area and therefore in conflict with the New Farm and Teneriffe Hill Neighbourhood Plan Code in CityPlan 2014 (the Local Plan);
  2. Whether the Proposal’s height was inconsistent with the community’s reasonable expectations and caused unacceptable impacts on amenity, particularly on views from the upper levels of Kirribilli; and
  3. Whether there was an economic or community need which warranted approving the Proposal contrary to the intent for medium rise and medium-high density residential development within the Local Plan.

Findings

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

In support of the decision, the Court found that the Proposal was for a high rise residential development, which was in clear conflict with the Local Plan’s purpose and overall outcomes which intended for residential development to be predominantly medium density in nature. To overcome this conflict and obtain a relaxation of building height, bulk and scale controls in the Local Plan (through s. 7.2.14.1.2(3) (m)), the developer needed to establish a strong community or economic need, which ultimately, it could not do.

Relevantly, His Honour also found that a fair and objective reading of the Planning Scheme would lead the community to an expectation that favoured development on the site up to 5 storeys or 15 metres in height. Those community expectations would also reasonably consider that a higher building could be developed in circumstances where a community and economic need was demonstrated, and the building was designed to appropriately respond to the characteristics of the adjoining building.

What this decision means

This decision gives some comfort to the residents of New Farm and gives guidance to developers that height controls for Multi-Unit Dwellings cannot be ignored.

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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