Emaaas Pty Ltd v Brisbane City Council & Ors; Pacifique 121 Pty Ltd & Anor v Brisbane City Council & Anor [2014] QPEC 31 (2014) QPELR 579

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Emaaas Pty Ltd v Brisbane City Council & Ors; Pacifique 121 Pty Ltd & Anor v Brisbane City Council & Anor [2014] QPEC 31 PARTIES: P&E Appeal No. 1017 of 2011 EMAAAS PROPRIETARY LIMITED (appellant) v BRISBANE CITY COUNCIL and OTHERS (respondents) P&E Appeal No. 954 of 2011 PACIFIQUE 121 PROPRIETARY LIMITED and ANOTHER (appellants) v BRISBANE CITY COUNCIL and ANOTHER (respondents) FILE NO/S: 1017 of 2011 and 954 of 2011 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 6 June 2014 DELIVERED AT: Brisbane HEARING DATE: 16 April 2014 JUDGE: Rackemann DCJ ORDER: The applications are dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – appeal against approval of a development application to facilitate the construction of a high-rise office and retail development – application for minor change – reduction from high-rise to mid-rise development – whether the proposed change results in a substantially different development -- 1 of 13 -- 2 COUNSEL: C Hughes QC and M Plunkett (appellant in 954 of 2011) D Gore QC and M Williamson (co-respondent) SOLICITORS: Connor O’Meara (appellant in 954 of 2011) H Drakos & Co (appellant in 1017 of 2011) Brisbane City Legal Practice (respondent) Romans and Romans Lawyers (co-respondent) Introduction [1] These are objector appeals against the respondent’s approval of a development application, by the co-respondent, to facilitate the construction of a high-rise office and shop development proposed on land situated at Albert Street in the Brisbane CBD. The subject site is improved with a low-rise local heritage place known as the William Cairncross Building, which fronts Albert Street. The level of assessment for the development is impact assessable – generally inappropriate, because it involves demolition of a heritage place. The subject site is “L” shaped, such that it also has a frontage to the Queen Street Mall.1 The appellants own properties which front the Queen Street Mall. [2] The appeals proceed as a hearing anew,2 however, the Court must not consider a change to the application on which the decision being appealed was made, unless the change is only a “minor change.” The co-respondent proposes to change the application, as approved by the Council. By the subject applications, the co-respondent seeks: (a) a determination that the proposed changes to the development approval the subject of this appeal, are minor changes as defined in section 350 of the Sustainable Planning Act 2009 (Qld); and (b) an order that the hearing of the appeal proceeds on the basis of those changed plans. 1 Ex 2. 2 s 495(1) SPA. -- 2 of 13 -- 3 [3] The appellants in appeal 954 of 2011 contend that the change is more than minor. Neither the appellant in appeal 1017 of 2011 nor the Brisbane City Council oppose the orders sought by the co-respondent. [4] Changes to the application are proposed against the background of arguments about the use of certain easements. The land, the subject of the development application, includes Lot 1 on SP140690. The co-respondent is the registered owner of this land, which is burdened with a number of easements. The dominant tenements include the appellants’ land. The easements are coincident with a laneway which fronts the Albert Street mall and which separates the existing building constructed on the subject site from development on adjoining land. [5] In June 2011, the appellants raised, for determination as a preliminary issue in this appeal, the question as to whether the Council’s decision to grant the approval was beyond power, because the development application was not accompanied by the consent of each registered holder of land with the benefit of an easement burdening the subject site. That preliminary issue has not been determined by this Court. A separate proceeding has also been commenced in the Supreme Court of Queensland in relation to the same subject matter. That proceeding has not been determined. [6] In an apparent effort to, amongst other things, overcome the easement issue, the co-respondent proposes to change the development proposal. One aspect of the change is to remove all building work from the laneway (or the airspace above the laneway), but that is not the full extent of the proposed changes. The changes were described, in the written submissions of the co-respondent as the product of “extensive redesign work”.3 The proposal approved by the Council [7] The Council approved the proposal for a high-rise tower featuring: (a) the retention of the two level facade of the heritage building; (b) a lower basement level, predominantly for commercial storage; 3 Paragraph 16. -- 3 of 13 -- 4 (c) an upper basement, which featured two retail tenancies; (d) “street” level and first floor retail tenancies; (e) 12 levels of office space above the retail levels; and (f) two plant levels on top of the building, the upper of which would present as a partial sixteenth level.4 [8] The proposed high-rise tower extended over the laneway and also into the space currently occupied by an extension (which was to be demolished) of development at 117 Queen Street. It was significantly taller than the adjacent development in Albert Street and the development which fronts Queen Street, but backs onto the subject site.5 The new proposal [9] The proposal which the co-respondent asserts is a “minor change” from that considered by the Council is dramatically different in scale. In context, it could be described, in ordinary parlance, as a mid-rise development. It still retains the two level facade of the heritage building and proposes street level and first floor level retail tenancies, but otherwise features: (i) one basement level (retail); (ii) four levels of offices above the retail levels; and (iii)one level for plant. [10] The new proposal does not extend into the laneway. It also would not involve re-development of the existing extension of 117 Queen Street at the rear. In comparison with the proposal approved by the Council: (a) the gross floor area of the development is greatly reduced (by around 55%); (b) the height of the building is also greatly reduced, both in storeys and in absolute terms (from 61.2m6 to 27.374m7 - a reduction of around 55%8); (c) office space is much reduced; 4 T1-43. 5 See affidavit of Rassmussen, Exhibit A pages 14-15. 6 T1-32. 7 T1-34, although there are some discrepancies in the plans (see e.g. T1-35), the difference in height is of the order indicated. 8 T1-34-35. -- 4 of 13 -- 5 (d) there is one less basement level; (e) there are differences in the size and internal configuration of floor levels,9 including the size of proposed tenancies, the number and location of lifts and the location of amenities; (f) the number of plant levels and the visual presentation of them are different; (g) there are relatively subtle differences in the architectural treatment between the new proposal and the corresponding levels of the proposal as approved. What is a minor change? [11] The expression “minor change” for the purposes of s 495 of the SPA is defined in s 350(1). Relevantly, for present purposes, the change is minor if it: (i) does not result in a substantially different development; and (ii) does not require the application to be referred to any additional referral agencies; and (iii) does not change the type of development approval sought. [12] The change, in this case, meets (ii) and (iii). The determinative question is whether (i) applies, that is, whether the extensive redesign work has resulted in a “substantially different development.” [13] In determining whether the new proposal constitutes a substantially different development, it is appropriate to have regard to the statutory guideline made under s 759(1)(c) of the SPA (Statutory Guideline 06/09). That guideline provides relevantly as follows: “Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would, therefore, not be a minor change or permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change will result in a substantially different development and is not intended to be exhaustive. A change may result in a substantially different development if the proposed change:  involves a new use with different or additional impacts;  results in the application applying to a new parcel of land; 9 T1-36-40. -- 5 of 13 -- 6  dramatically changes the built form in terms of scale, bulk and appearance;  changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment;  removes a component that is integral to the operation of the development;  significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;  introduces new impacts or increases the severity of known impacts;  removes an incentive or offset component that would have balanced the negative impact of the development;  impacts on infrastructure provision from a location or demand.” [14] The redesign in this case has produced a proposal which dramatically changes the built form in terms of scale, bulk and - largely as a consequence - appearance too. That may support a conclusion that it is more than a minor change, but it does not necessarily or inevitably do so. In Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council & Ors [2010] QPEC 19 I observed: “It may be noted that the list provided in the guideline is a list of those changes which "may" result in a substantially different development. It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different.” and “It may also be noted that the list is not intended to be exhaustive. There may be other changes not listed in the guideline which, in a particular case, can be judged to be more than minor, in that it involves a substantially different development.” [15] In assessing whether the new proposal is a substantially different development it is relevant to consider the changes from a qualitative, as well as quantitative, perspective. That is consistent with the guideline, which refers not only to the physical degree of change, but to its impacts. In so doing, the Court traditionally scrutinises more critically those changes which have the potential to raise new or additional impacts, not dealt with at the development application stage. That approach is consistent with the guideline. In the Heritage Properties case I observed: -- 6 of 13 -- 7 “It may also be noted that the focus of the list in the guideline is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts.” [16] It was also pointed out, on behalf of the co-respondent, that the Explanatory Notes to the Sustainable Planning Bill 2009 stated (at page 184) that the provisions were designed to provide a “simpler, clearer and more flexible process for changing development applications than the process in the current IPA”. At pages 185-186 it also said: “However, changes which may result in a development being substantially different include:  changes which involve a new use (for example, an application for a material change of use for a cinema which is changed to include a residential component);  changes which involve a significant increase in gross floor area;  changes which involve a significant increase in the number of lots or storeys above ground level proposed.” [17] The consequence of finding that proposed changes are not minor, in the relevant sense, is not to prohibit the changed proposal. Rather, the changed proposal must, if it is to proceed, be the subject of a new development application, rather than considered, for the first time, in the context of an appeal from the decision on the original application. The utility of insisting on a new development application for a changed proposal is obviously greater where the new proposal has different or increased impacts not previously considered, than where changes merely address impacts which have already been considered, without fundamental change to the subject matter of the application. [18] Further, the amendment of proposals in a beneficial way, is the means by which many appeals within the Court are resolved, to the satisfaction of the parties and to the benefit of the community (in terms of an improved development outcome) without the cost and delay which would be associated with a fresh application. An overly conservative approach to the statutory scope for change would be counter-productive.10 The Court assesses proposed changes broadly and fairly, rather than pedantically. 10 Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386 at 392; Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 385 at 391. -- 7 of 13 -- 8 [19] Accordingly, for example, a change in building height of a given quantum (say a change of two storeys to an original six storey proposal) is more likely to be regarded as within the bounds of minor if, by a reduction of height of that magnitude, adverse amenity and planning issues identified upon assessment of the original proposal are obviated, than if, by an increase of the same magnitude, impacts are exacerbated or created or new issues arise (by, for example, raising the building to exceed a relevant standard with which the original proposal was compliant). Each case however, must be assessed having regard to its own circumstances. [20] Notwithstanding those observations, the Court must not be diverted from the statutory test. The ultimate question is not whether the new proposal is smaller or better per se, but rather whether it represents more than a “minor change” and, in the context of this case, whether it is a substantially different development. [21] I was referred to the reasons of Robin QC DCJ in Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 27, where his Honour found that a marked reduction in building height (from thirteen to seven storeys), to make a proposal code compliant and render it acceptable to all parties, was a minor change. His Honour said: “… some may take the view that the removal of an additional six levels is a dramatic change, albeit by way of reduction, which has obvious benefits in producing a more open amenity in a strategic location quite close to the beach. There is a tradition in the court of accepting as minor change changes that reduce the impact of developments. It's clear if one reads the guidelines that the changes which cause concern are those which increase the bulk and scale of developments or increase their impacts. I think it is appropriate to construe and apply section 350 in that way, particularly if one bears in mind the injunctions at the beginning of the Act in sections 3, 4, and 5 as to how the court and other entities performing functions for the purpose of the Act ought to act to advance its purposes. It would be highly inconvenient if the court refused to accept this change as a minor one for section 350 purposes. That would force the parties to persist with an appeal that none of them wish to persist with. The consequence would seem to be that the appeal must fail and the developer be forced to start all over again. There’s no conceivable advantage in that scenario.” [22] On the other hand, in Dempsey v Brisbane City Council [2012] QPELR 396, Jones DCJ, after acknowledging the relevance of the fact that the change in -- 8 of 13 -- 9 height (from six to four storeys) was a reduction (rather than an increase), went on, in dealing with a submission which urged a similar approach to that of Robin QC DCJ in Indigo: “[13] While that submission is accurate in part, it is, in my respectful view, not accurate in all respects. While it might fairly be said that the Explanatory Notes tended to focus on increases in the size of the proposal, on my reading of the Guideline, while there is reference to “additional” impacts, when reference is made to the scale, bulk and appearance of a development it is not restricted to only increases but is concerned with changes to the built form in terms of scale, bulk and appearance. … [16] As Mr Lyons quite properly conceded, the mere fact that the relevant changes to the dimensions of the building result in an overall reduction of scale and bulk is not of itself determinative. He accepted that it was less likely that an increase in the scale of the development of in the order of 30 percent would be considered a minor change. In my view, as the legislation is currently drafted, it might be difficult to resist an argument that, by way of example, a 50 percent change in the dimensions of a development was a minor change notwithstanding that it was a reduction in the scale of development. A perhaps unintended consequence might be that the more the dimensions of a development are reduced, the stronger the argument might become that the change is not minor”. [23] I respectfully agree with Jones DCJ. It is, in my view, possible for a proposal to be both reduced in height and scale and to be described as substantially different from the original proposal. Senior Counsel for the co-respondent made it clear that he was not submitting that the fact that the change represents a diminution of development is necessarily the end of the matter.11 It may be noted that in Dempsey, his Honour regarded the degree of reduction in that case as “tending towards the limits of what might, in the context of this application, be considered to be a minor change”.12 Is this a minor change? [24] Under Brisbane’s City Plan the subject site is: (a) included in the multi-purpose centre MP 1; (b) included in the Heritage Register Planning Scheme Policy; (c) located within the City Centre Neighbourhood Plan (CCNP); 11 T1-44. 12 Paragraph [20]. -- 9 of 13 -- 10 (d) within the “retail heart” Special Context Area (SCA 1) within the CCNP. [25] It was submitted, on behalf of the appellants, that the adoption of the mid-rise proposal, in lieu of the high-rise originally proposed, has the consequence that the assessment of the proposal against the relevant provisions involves a fresh analysis which will, or may, involve a materially different mental approach. Unsurprisingly, the appellants focussed on the differences, particularly in bulk and scale, between the approved proposal and that now proposed. Reliance was placed on an affidavit from a town planner, Mr Buckley, who, having regard to the extent of planning controls in the CBD said: 21. To allow a change to a development of 60%, whether an increase or a decrease, without reassessment by the assessment manager, in my view, would potentially compromise the many inputs into a planning assessment, and therefore the integrity of that assessment. In my view, a fresh assessment is required.” [26] Senior Counsel for the co-respondent conceded that the changes are significant,13 but submitted that they do not result in a substantially different development. The co-respondent focussed on what the two proposals have in common (they are both multi-storey developments involving redevelopment of a local heritage place, with offices above retail) and on the intention that the changes reduce impacts and address the concern in relation to encroachment on the easement. [27] The difference in the height of the proposals should, as was submitted for the co-respondent and as Mr Kay (the town planner retained by the co-respondent) pointed out, be viewed in the site’s context. The City Centre features a concentration of high-rise buildings with which the original proposal is broadly consistent. Development in the City Centre is not exclusively high-rise however, and building height, including in the vicinity of the subject site, varies. The buildings on each side of the subject site in Albert Street are not high-rise towers. There is relatively low scale development fronting the nearby Queen Street Mall. [28] It was submitted, on behalf of the co-respondent, that the change in height and GFA of the subject building is not dramatic, in the context of the amount of floor space and the mix of building height in the CBD. Mr Kay saw the new 13 T1-44. -- 10 of 13 -- 11 proposal as “if anything, more consistent with the scale of development that fronts the Queen Street Mall”. Whilst development within the CBD is not uniform, the new mid-rise proposal does however, respond differently to its context, than the approved high-rise proposal. [29] Both the high-rise concentration in the City Centre generally and the lower scale development fronting the Queen Street Mall are recognised in the planning documents. The CCNP describes the City Centre as the only major high-rise commercial area in the city and states that most of the metropolitan area’s increase of inner-city office development is in the CCNP area.14 The CCNP seeks a vital city centre. In particular, s 3.4.3, in part, seeks the following development outcome: A compact City Centre with a built form characterised by high rise office and residential towers is complemented by higher order retail, entertainment, cultural and tourism facilities. This built form promotes the vitality of the City Centre and makes best use of existing and planned infrastructure. … There will be large towers rather than a greater number of smaller towers.” The CCNP promotes excellent design in all buildings and places.15 Where development is by way of a tower that influences the city skyline, it is to contribute positively to that skyline.16 [30] Insofar as the retail heart (SCA 1) is concerned, the CCNP recognises that it is focussed on the Queen Street Mall and adjoining major pedestrian areas.17 It recognises the important contribution of the generally 2-3 storey buildings from the late 19th Century and early 20th Century.18 It seeks to protect the amenity of the mall by limiting the height of buildings on nearby sites.19 [31] The subject site is listed in Schedule A of the CCNP as having allocated transferrable site area. The concept of transferable development rights is linked to heritage places. Where the Council is satisfied that the conservation of a 14 S 3.4.1 15 S 3.4.5 16 P 18 of the CCNP Code. 17 S 3.4.4 18 Chapter 4 page 428. 19 S 3.4.4 – see also Chapter 4 pages 428-428a. -- 11 of 13 -- 12 heritage place in Schedule A is assured, it may approve the “transfer” of all or part of the transferrable site area (including by sale) to another site in the CCNP area, for the purposes of calculating the extent of development permitted on that other site.20 The effect is that another site may be developed to achieve a greater yield, in consideration for conservation of the heritage place on the first site. [32] Building work outside of the envelope of the listed building on a site in Schedule A is impact assessable, generally inappropriate, development.21 Further, P11 of the CCNP Code provides as follows: P11 Sites allocated transferable site area in Schedule A are conserved without alteration or modification of the building and its site A11 No Acceptable Solution is prescribed [33] Those provisions, read together, encourage large, high-rise office and residential towers, complemented by other facilities, in the City Centre generally, but seek to protect the amenity and vitality of the Queen Street Mall by limiting the height of buildings on nearby sites. Further, buildings on sites allocated a transferable site area are to be conserved, without alteration or modification. [34] The approved and new proposals respond differently to the physical and planning context of the site. Both proposals involve development on a site listed in Schedule A and to which P11 applies, but the approved proposal does so in a way which would produce a high-rise office tower above retail, which might be thought to be consistent with other CBD high-rise built forms and with the general intent for a vital City Centre as stated in s 3.4.3. The new mid-rise proposal, on the other hand, involves a much smaller development, closer in height to adjacent buildings in Albert Street and nearby buildings on the Queen Street Mall. That might be thought to be more sympathetic with the intent for buildings near the mall. [35] While a smaller development can be expected to have, if anything, reduced direct amenity impacts, I am not in a position, on the hearing of this application, 20 See City Plan Chapter 4 page 428n. 21 Chapter 4 page 407. -- 12 of 13 -- 13 to conclude whether one approach (the high-rise or the mid-rise) is better overall, from a town planning perspective, or indeed whether one or other (or both) are acceptable or unacceptable from a merits perspective. It is unnecessary for me to reach a conclusion about that. It is sufficient to observe the difference of approach which, in my view, is substantial. [36] Senior Counsel for the appellants drew attention to other provisions of the CCNP, but it is not necessary to traverse them in detail. The matters already referred to are sufficient to illustrate that the new proposal is dramatically different in its bulk, scale and appearance and represents a different response to the site’s physical and planning context. It is, I am satisfied, a substantially different development. [37] The applications are dismissed. -- 13 of 13 --