Blue Sky Private Equity Limited v Brisbane City Council [2016] QPEC 32 (2016) QPELR 640

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Blue Sky Private Equity Limited v Brisbane City Council [2016] QPEC 32 PARTIES: BLUE SKY PRIVATE EQUITY LIMITED (Applicant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 1509 of 2016 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 8 June 2016 DELIVERED AT: Brisbane HEARING DATE: 8 June 2016 JUDGE: Rackemann DCJ ORDER: The change is a permissible change. CATCHWORDS: PLANNING AND ENVIRONMENT – permissible change – whether incorporation of open rooftop communal area resulted in an additional storey so as to trigger impact assessment COUNSEL: M Batty for the applicant Solicitors for the respondent SOLICITORS: Norton Rose Fulbright for the applicant Brisbane City Legal Practice for the respondent -- 1 of 4 -- 2 [1] This is an application for a permissible change to a development approval. The principal matter of concern is whether the change would render the development which was initially code assessable, one which would instead be impact assessable. That depends upon whether the change which is proposed would result in the top of the building becoming a storey. [2] The rooftop in the building, as it is currently approved, is an area where there is access by way of stairs to services. It is proposed, however, to now have an area of communal open space with a pergola overhead and furniture in the form of seating and a day bed. There is also to be some changes to the lift shaft which is to be extended, so that the residents can take the lift up to that rooftop area, and consequent changes to the roof over the lift. It is proposed that, if the change were to be permitted, the approval would be subject to the following condition in relation to the rooftop: The roof terrace level (communal use area) is to remain ancillary to and limited to the approved residential uses on the site and shall not be used between 10 pm to 7 am. The pergola structure located on the roof terrace level shall remain unenclosed with no walls and no roof above. The structure shall have beams at a minimum of 900 millimetre spacing and shall remain open with no impervious roofing treatment. [3] The aim of that condition is twofold. One is to ensure that there is no undue noise impact from the use of the rooftop, but, secondly, to ensure that the communal use area is not to be enclosed, with the intention that it not be a storey. [4] The existing approval was given during the currency of City Plan 2000. The definition of a storey under that planning scheme was, relevantly, as follows: -- 2 of 4 -- 3 Storey: a space within a building which is situated between one floor level and the floor level next above it and commencing at ground level, or if there’s no floor level above, the ceiling or roof, above, but not a space that contains only: a lift shaft… [5] The application of that definition to facts which are materially similar was dealt with by Judge Wall QC in The Body Corporate for the Village of Langler Drew Community Titles Scheme 16700 v Brisbane City Council and others (2014) QPEC 54. There his Honour determined that the communal use area was not a storey. His Honour so concluded because it was not a “space within a building” as opposed to being on top of the building and, secondly, because there was no floor level above it and no ceiling or roof above it. In that regard, his Honour concluded that the higher rooves to the lift shaft and stairwells did not constitute a “roof above” for the purposes of the definition in its application to the place where the communal area was located. In that regard, his Honour said: The higher rooves of the lift shaft and stairwells are not, by that fact only, coupled with their location on the same level, sufficient to make the space occupied by the communal area and plant deck a storey. [6] I respectfully concur with his Honour’s analysis. It follows that, in this case, the change would not have constituted the building as one with an additional storey under the definition in City Plan 2000. [7] City Plan 2000 has, of course, now been superseded by City Plan 2014. The definition of storey in the new planning scheme is different in that it does not require a storey to be a “space within a building”. That takes away the first of the grounds relied upon by his Honour for concluding that the communal area was not a storey in The Body -- 3 of 4 -- 4 Corporate for the Village of Langler Drew Community Titles Scheme 16700 v Brisbane City Council & Ors. The definition under City Plan 2014 is, however, otherwise the same as under City Plan 2000 and, accordingly, the reasoning of his Honour in relation to the space not having a floor level above or a ceiling or roof above is apposite. [8] Accordingly, I am satisfied that the change would not constitute the building to be any greater number of storeys and would not trigger impact assessment. I am otherwise satisfied that the change is a permissible change and I will make an order as per draft, initialled by me and placed with the papers. -- 4 of 4 --