3 residential towers approved on former ABC site despite significant conflicts with planning scheme

The Planning and Environment Court delivered a decision in the case of Bell v Brisbane City Council & Ors [2017] QPEC 26 which involved an appeal commenced by a submitter Kate Bell against the Council’s decision to approve, subject to conditions, a development application made by Sunland Developments No. 8 Pty Ltd. The development application was for a material change of use for multiple dwellings, centre activities and re-use and extension of a heritage place and a preliminary approval for building works and operational works on the former ABC site in Toowong.

The proposed development:

• had a site cover of 31.4%;
• involved 3 towers of 24-27 storeys in height with 555 units (comprising 1, 2 and 3 bedroom apartments and villas), community use areas, food and drink outlets and the retention and extension of a heritage place known as Middenbury;
• comprised of public open space covering 53% of the site, a sculptured public park and bikeway and pedestrian way (to be kept in private ownership).

The proposed development required impact assessment and a significant number of submissions were received opposing the development.

Ms Bell alleged that the proposed development was in conflict with 82 provisions of the Council’s planning scheme. These were ultimately reduced to 37 central provisions and it was acknowledged that if it was determined that there was a conflict with some or all of those provisions, the Court would need to consider the remaining 45 provisions. The issues in these central provisions generally related to height, bulk and scale, building separation, setbacks, heritage issues, traffic and amenity.

Ms Bell contended that the nature and extent of the conflict with the Council’s planning scheme was significant and there were no sufficient grounds to overcome the conflict. The Council and Sunland contended that to the extent that there was any conflict with the Council’s planning scheme there were sufficient grounds to overcome the conflict.

The Court had regard to the evidence presented by the parties and determined that on balance it was satisfied that there were sufficient grounds, in the public interest, to approve the application for the proposed development notwithstanding its significant conflict with the Council’s planning scheme.

Snapshot of the Court’s consideration and findings

Assessment regime

In assessing the development application, the Court noted that:

• any approval of the application must not conflict with a relevant planning instrument unless there were sufficient grounds to overcome the conflict, and a relevant instrument included the Council’s planning scheme;
• whilst the Court was not able to usurp the role of the Council as a planning authority and adopt its own planning strategies in preference to those in the planning scheme, a degree of flexibility in the development assessment process would be desirable if exercised in the public interest – this was reflected in the discretion afforded to the Court to approve a particular proposal despite the conflict where there were sufficient grounds;
• Sunland carried the onus of establishing that the proposed development should be approved and the appeal be dismissed.

Conflict with performance outcome 3 and overall outcome 4(h) Toowong-Auchenflower Neighbourhood Plan Code (TANP Code) – centre activities

Ms Bell contended that the proposed development was in conflict with the TANP Code in that the development did not provide a balanced mix of residential and non-residential uses nor did it deliver a highly diverse range of centre activities.

The Court determined that the proposed development conflicted with the relevant performance and overall outcomes as in its view the proposed development offered a limited provision of non-residential development and did not provide a diverse range of centre activities.

Conflict with performance outcomes 1 and 19 of the TANP Code – height, bulk and scale

Ms Bell contended that the proposed development was not of a height that aligned with community expectations about the number of storeys to be built, as the planning scheme prescribed a height of 15 storeys and the proposed development exceeded this requirement.

The Court determined that the proposed development conflicted with the performance outcomes in relation to height, bulk and scale, as:

• the proposed towers were materially higher than the prescribed height;
• the proposed height of the towers was not consistent with the community expectations.

Conflict with the TANP Code – infrastructure

Ms Bell contended that the proposed development was inconsistent with the infrastructure assumptions intended for the relevant precinct and the site should not able to be developed to a greater height, scale and form as there was neither a community nor economic need for the development.

It was acknowledged by Sunland that the proposed development would generate a demand, which was greater than the proportionate development density for the site, but such demand would not exert an unacceptable impact on the existing municipal networks.

The Court determined that there was a conflict due to the inconsistency with the assumptions about future development.

Conflict with the TANP Code and Transport Access Parking and Servicing Code (TAPS Code) – vehicular access from Coronation Drive

Ms Bell contended that the proposed development was in conflict with the TANP and TAPS Codes in that the proposal would have direct access to Coronation Drive which was an arterial road in circumstances where the planning scheme precluded direct access via an arterial road.

Sunland contended that it would be difficult for a service vehicle to gain access via Archer Street (a minor road) and it would seem both inefficient and inequitable to load all the traffic onto Archer Street in circumstances where the TANP Code contemplated some access via Coronation Drive albeit through an acceptable outcome of the TANP Code.

Whilst the Court noted that there was conflict, such conflict was not accompanied by a significant adverse consequence, as it was determined that access via Coronation Drive would not adversely impact on the safety or efficiency of the road.

Conflict with performance outcomes 2(b) and 21 of the TANP Code – streetscape activation and building transition

Ms Bell contended that the proposed development was in conflict with the performance outcomes in that the proposal did not contemplate a frontage with a highly active built form with specified features and made no attempt to step down the height of the towers to provide transition.

The Council contended that performance outcome 2(b) should be understood as referring to activation where buildings were proposed on the street front, rather than a requirement to make such provision. Sunland contended that whilst the proposed development did not achieve what was contemplated in performance outcome 2(b), it would provide a highly active frontage to Archer Street and Coronation Drive and gave the site a vibrant public sense of place.

The Court determined that the proposed development was in conflict with:

• performance outcome 2(b) as the towers were not located on the street frontage –however, the proposed development did envisage relatively open street frontages, and access would be provided to the river and open space;
• performance outcome 21– however, the extent of conflict would not cause an unacceptable adverse amenity impact and the conflict was not grave as there was no undue amenity impact on Ms Bell’s land or the adjoining land which was also owned by Sunland.

Sufficient grounds

The Court determined that there was a significant economic and community need for the development as a whole, including the residential component. In short, the Court noted that:

• the need for further retail or commercial uses at this time was not particularly great and could be accommodated elsewhere;
• the proposed development would generate activity and vibrancy, improve streetscape and produce a pedestrian friendly environment and support the transit-orientated nature of the area.

Points worth noting

The Court is not able to usurp the role of a local government as a planning authority by adopting its own planning strategies in preference to those in the planning scheme.

However, the discretion afforded to the Court to approve a particular proposal, despite the conflict (where there are sufficient grounds) is a recognition that a degree of flexibility would be desirable in the development assessment process if it is exercised in the public interest.