20 storeys might be too high but not where there’s a strong economic and community need

1 February 2017
Stafford Hopewell, Partner, Brisbane

A 20 storey aged care accommodation and medical facilities building in Buranda was approved as it responded to the strong economic and community need

Quintenon Pty Ltd v Brisbane City Council – What’s the case about?

The Planning and Environment Court delivered a decision in the case of Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64 which involved an appeal against the Brisbane City Council’s deemed refusal of a development for a material change of use for a proposed mixed use building at Wolseley Street, Buranda.

The primary issues of contention related to the height of the proposed development and its consequential visual impact which gave rise to its conflicts with the Brisbane City Plan 2000 and Brisbane City Plan 2014.

The Court found that the proposed development was well designed and would contribute positively to the revitalization of the precinct. Whilst the height of the proposed building did give rise to conflicts with the City Plan 2000 and City Plan 2014, in the context of existing, approved and likely future development in the area, the Court did not consider it to be excessive.

To the extent that there were conflicts with the City Plan 2000 and City Plan 2014, the Court found that the proposed development responded to a strong economic and community need, which would justify approval despite the conflict.

Snapshot of Court’s consideration and findings

The proposed development involved a mixed use building which was expressed as 20 storeys and consisted of aged care accommodation, assisted living units, medical consulting rooms and a health training facility.

It was observed by the Court that “the proposal has obviously been designed with an eye not just to producing a functional layout for the mix of uses, but also to produce a building of appropriate appearance and form”.

Both the City Plan 2000 and City Plan 2014 relevantly prescribed a maximum height of 15 storeys in the relevant precinct. However, the Court noted that the potential for development which exceeded the maximum height was contemplated under both planning schemes. In particular, unlike the City Plan 2000, there was no specification of maximum floor heights under the City Plan 2014 which resulted in a greater flexibility in relation to the building height requirements.

The underlying issue was whether the proposed development was consistent with the intended outcome for the precinct as it related to height, scale and character and the community expectations concerning the number of storeys.

It was acknowledged by the Council that “consistently with the position under the ECNP (Eastern Corridor Neighbourhood Plan), reasonable expectations about height under the 2014 ECNP for the relevant sub-precinct are of development of up to 15 storeys and the possibility of something greater”.

The Court had the benefit of expert evidence in relation to the likely visual impact of the proposed development. The Council’s visual amenity expert considered the height of the proposed building to be extreme which would not appropriately relate to existing or approved development.  However, Quintenon’s expert held a contrary view particularly when considered in the context of likely future development.

It was accepted by the Court that the likely future development of the area should be considered when assessing how the proposed development would sit with the intended outcome for the precinct and legitimate community expectations.

Quintenon’s visual amenity expert produced a number of photomontages which assisted the Court with its assessment. The photomontages modelled building mass consistent with the code assessable development limiting it to the maximum building height prescribed under the planning scheme provisions.  Further, given the possibility of development exceeding the prescribed maximum building height, the Court regarded the photomontages as having been prepared on a reasonably conservative basis.

Based on the photomontages, the Court did not consider the proposed development would be “dramatically excessive, dominant or jarring”. However, the Court acknowledged that there remained a modest level of inconsistency with the intended outcome for the precinct under both planning schemes.  As such the Court was not satisfied that reasonable community expectations would extend to a building of as high as 20 storeys.

The Court went on and examined whether there was an economic and community need for the proposed development. The Court accepted Quintenon’s economic expert’s analysis that there was a need in the Woolloongabba catchment area itself which the proposed development was well located to serve. Further, the proposed development was well located given its close proximity to the PA hospital and it was convenient for the elderly in having their residential facilities co-located with medical services.

Overall, the Court believed that there was economic and community need for the components proposed and the proposed development responded to such need.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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