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GBW Investments Pty Ltd v Brisbane City Council[2018] QPEC 33

GBW Investments Pty Ltd v Brisbane City Council[2018] QPEC 33

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33

PARTIES:

GBW INVESTMENTS PTY LTD ACN 165 395 184

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

859 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

8 June 2018 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 May 2018 and written submissions received 21, 23 and 28 May 2018 and hearing of oral submissions on 8 June 2018

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed. I confirm the decision of the Council to refuse the change.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a change application to a development approval granted with respect to a multi-unit dwelling and adjacent heritage building – where council refused the change on the basis that it was not minor – whether the proposed change increases the severity of known impacts on the heritage place – whether the proposed change results in a dramatic change to the built form in respect of scale and bulk

LEGISLATION:

Planning Act 2016 (Qld), s 68, s 78, s 81, s  229, s 286

Planning and Environment Court Act 2016 (Qld), s 43, s 45

Queensland Heritage Act 1992 (Qld), s 23

CASES:

ISPT Pty Ltd v Brisbane City Council & Anor [2017] QPEC 52; [2017] QPELR 1117, distinguished

Kirkham v Brisbane City Council [2007] QPEC 106; [2008] QPELR 290, cited

COUNSEL:

R Litster QC for the appellant

J Houston for the respondent

SOLICITORS:

McCullough Robertson for the appellant

City Legal - Brisbane City Council for the respondent

TABLE OF CONTENTS

Introduction

Background

The nature of the refused change

The decision framework

The issues

The Heritage Place

Will there be an increase in the severity of known impacts?

Will the change result in a dramatic change to the built form in respect of bulk and scale?

Conclusion

Introduction

  1. [1]
    This is an appeal commenced by GBW Investments Pty Ltd against part of a decision of the respondent, Brisbane City Council (“Council”).  Council’s decision related to a change application for a development approval granted with respect to a multi-unit dwelling and adjacent heritage building at  2 Scott Sreet, Kangaroo Point.  Council refused one of several proposed changes on the basis that it was not a “minor change”.  The other proposed changes were approved.  This appeal is about Council’s decision to refuse one of the proposed changes.
  1. [2]
    The subject land is improved by a heritage listed building, which was constructed around 1925. The part of the subject land occupied by the heritage listed building, as well as curtilage around the building, is included on both the Queensland Heristage Register and the local heritage register. The identified areas for each entry is identical.
  1. [3]
    The subject land is also improved by a partially constructed 15 level multi-unit residential building. The partially constructed building is cantilevered from its third level to overhang the heritage building. The multi-unit building is the subject of a development approval granted by Council. It is this approval to which the refused change underlying this appeal relates.

Background

  1. [4]
    On 14 June 2014, the appellant made a development application seeking:
  1. (a)
    a preliminary approval to carry out building work (heritage place – demolition, heritage place, heritage place – adjoining);
  2. (b)
    a development permit for material change of use (multi-unit dwelling); and
  3. (c)
    a preliminary approval to carry out building work (multi-unit dwelling).
  1. [5]
    At the time, City Plan 2000 was in force.
  1. [6]
    The proposed development involves a 15 level residential tower comprising 14 single level apartments and restoration of the heritage listed building.
  1. [7]
    When the development application was made, the Sustainable Planning Act 2009 (Qld) was in force.  The Chief Executive for the Sustainable Planning Act 2009 was a concurrence agency for Queensland heritage places.
  1. [8]
    Council approved the development application on 13 October 2015. The decision notice approved development in accordance with Revision 20 of the architectural drawings.
  1. [9]
    On 23 November 2017, Council approved changes to the development approval in relation to the roof level of the multi-unit building.
  1. [10]
    The application for change the subject of this appeal was lodged on 22 December 2017 under s 78 of the Planning Act 2016 (Qld).
  1. [11]
    On 26 February 2018, Council approved ten aspects of the change application, namely:
  1. (a)
    relocation of the central staircase and lift core;
  2. (b)
    additional carparking spaces in the basement;
  3. (c)
    separation of the direct access from the lobby to the existing heritage house;
  4. (d)
    relocation of the visitor (including parking with disability) parking spaces and refuse collection area at ground level;
  5. (e)
    addition of fire emergency egress points at ground level along Main Street;
  6. (f)
    relocation of the services room from the side boundary to adjacent lift core;
  7. (g)
    relocation of the pedestrian entry to the building from Main Street;
  8. (h)
    adjustments to the articulation zone along the side and front boundary of the building;
  9. (i)
    internal changes to the apartments including removing the rumpus room and creating a media room along the Main Street frontage; and
  10. (j)
    alterations to the planters along the Main Street frontage.
  1. [12]
    Council refused that part of the change application that relates to “the extent of the slab towards the Western elevation on all floors”. 
  1. [13]
    Council refused the change on the basis that it was not “minor” .
  1. [14]
    This appeal is against that decision. The appeal was lodged on 7 March 2018.
  1. [15]
    There is no suggestion that there is a relevant relationship between those changers which were approved and the one that was refused. The only issue in this appeal relates to whether the refused change is a minor change. Both parties accepted that consideration of that issue is not dependant on the viewing the changes as an entire package. Rather, whether the change in issue constitutes a minor change is to be determined in the context of the development form with those approved changes.

The nature of the refused change

  1. [16]
    The proposed change the subject of this appeal relates to the extension of the slab of the multi-unit building on its western elevation on all floors.
  1. [17]
    Council’s Grounds for Refusal are advanced initially by reference to an allegation that the refused change would result in “substantially different development”.
  1. [18]
    To understand the nature of the refused change it is necessary to appreciate what has been approved and the difference involved as a consequence of the proposed change.
  1. [19]
    I have had regard to the drawings that were approved in October 2015, bearing in mind that changes related to the roof level were approved in November 2017, and to the drawings that were approved in February 2018 to the extent those drawings were approved.
  1. [20]
    I have considered Document 3(c) of Exhibit SMT-1 to the first affidavit of Mr Tocchini (noting that these versions were not relevantly changed in November 2017). Relevant extracts from that document are found as Document 4 in Exhibit 2 (at pages 15 to 21).
  1. [21]
    I have compared those drawings with Document 4 of Exhibtit SMT-2.
  1. [22]
    I have also considerd Document 5 in Exhibit 2. The refused change is identified on each of those pages by the by the words (in red) “Additional slab and screen extent of the building towards the Western Elevation on all floors is not part of this approval”.
  1. [23]
    The diffrence between the maximum extent to which the slab elements of the multi-unit building extend beyond the eaves of the heritage listed building are specifically depicted in Exhibit 2 at pages 29 and 30.
  1. [24]
    The difference between the maximum extent to which the “supporting angle” elements of the multi-unit building extend beyond the eaves of the heritage listed building are specifically depicted in Exhibit 2 at pages 31 and 32.  The “supporting angle” element is a steel plate that is fixed to the slab edge and integral to the fitting of moving screen elements on the western elevation of the multi-unit building.
  1. [25]
    The relationship and interface between the lower levels of the multi-unit building and the heritage listed building are depicted more closely in Document 6 of Exhibit LCP-1.
  1. [26]
    Mr Probert’s first affidavit describes these matters in paragraphs 19 to 22 as follows:

“19 The relationship and interface between the lower levels of the tower and the ‘Scott Street Flats’ is depicted in Document 6 of Exhibit LCP-1 which shows:

  1. (a)
    the cross section for the October 2015 Development Approval; and
  2. (b)
    the cross section for the Refused Change.

In Document 6, the screen on the northern façade has been removed to allow a better appreciation of the space between the tower at the lower levels and the ‘Scott Street Flats’.  The screen can be seen in the first two renders in Document 4 or in those in Document 5.

20 The extent to which the tower projects over the roof of the ‘Scott Street Flats’ is not uniform because the floor plate for each level is different.  The extent of the overhang measured from the line of the eastern eaves of the ‘Scott Street Flats’ to the outermost western slab edge is shown (in elevation) in Document 7 of Exhibit LCP-1 as:

  1. (a)
    for the October 2015 Development Approval, a maximum of 1220mm (this appears in Drawing 302A, Revision 20 in Document 7); and
  2. (b)
    for the Refused Change, a maximum of 2120mm (this appears in Drawing 302A, Revision 21 in Document 7);

(i.e. in simple terms the maximum “as built” dimension to the outermost western slab edge exceeds the maximum “as approved” dimension by 900mm).

21 The extent of the overhang measured from the line of the eastern eaves of the ‘Scott Street Flats’ to the outermost western edge of the steel supporting angle is shown (in elevation) in Document 8 of Exhibit LCP-1:

  1. (a)
    for the October 2015 Develeopment Approval, a maximum of 1670mm (this appears in Drawing 302A, Revision 20 in Document 8);
  2. (b)
    for the Refused Change, a maximum of 2630mm (this apears in Drawing 302A, Revision 21 in Document 8);

(i.e. in simple terms the maximum “as built” dimension to the outermost western edge of the steel supporting angle exceeds the maximum “as approved” dimension by 960mm).

22 At the lower levels of the tower, the extent to which the outer line of the slab for Refused Change extends to the west beyond the outer line of the slab for the October 2015 Development Approval is shown (in plan) in Document 9 of Exhibit LCP-1 as:

  1. (a)
    on level 1, 464mm at the south western corner and 5mm at the north western corner;
  2. (b)
    on level 2, 473mm at the south western corner and 4mm at the north western corner;
  3. (c)
    on level 3, 768mm at the south western corner and 342mm at the north western corner.”
  1. [27]
    The floor plate for each level is different. That has implications for how the multi-unit building presents in terms of articulation.
  1. [28]
    Only a maximum of 75 per cent of each level on the western façade of the building can be screen at any one time.
  1. [29]
    In March 2018, Council approved the façade elevations in terms of the visual appearance of the screens that are an integral component of the design of the multi-unit building. A letter from Council confirming compliance approval makes it plain that only the ‘slab extension and additional form’ is not approved.  An understanding of the visual effect of the screens is afforded by Document 10 in Mr Probert’s first affidavit.
  1. [30]
    The refused change is depicted on a level by level basis in the “Revision J” drawings.
  1. [31]
    Exhibit 7 shows the outcome of an overlay of Drawing 302, Revision 20, and Drawing 302, Revision 21, which illustrates the maximum extent to which the building outline of Drawing 302, Revision 21, protrudes past the building outline of Drawing 302, Revision 20. The difference is, in some locations, as little as a few millimetres.
  1. [32]
    In referring to Exhibit 7, I accept that it should be understood as providing a two dimentional representation of maxima which are not uniform across the western façade.
  1. [33]
    It is only the additional slab and screen extensions towards the western elevation (as distinct from the extension on the other sides of the multi-unit building) that is in issue. Council submits that this is consistent with the importance placed by Council on conservation of the cultural heritage significance of the heritage building. I accept that to be so.

The decision framework

  1. [34]
    The original application was made and approved under the now repealed Sustainable Planning Act 2009 (Qld).
  1. [35]
    The Planning Act 2016 (Qld) commenced on 3 July 2017. 
  1. [36]
    Under s 286 of the Planning Act 2016, the development approval continues to have effect.
  1. [37]
    The change application was made and decided under the Planning Act 2016.
  1. [38]
    The subject appeal is a Planning Act appeal. It was commenced after 3 July 2017 under s 229 and Schedule 1, table 1, item 2(a) of the Planning Act 2016.  The appeal is to be heard and determined under the Planning Act 2016 and the Planning and Environment Court Act 2016 (Qld).
  1. [39]
    The appeal is generally by way of hearing anew:[1] the court is to determine the appeal standing in the shoes of the assessment manager and generally on the law as it presently stands subject to those qualifications that appeal in section 81 of the Planning Act 2016.
  1. [40]
    Pursuant to s 45 of the Planning and Environment Court Act 2016, the appellant has the onus of establishing that the appeal should be upheld.
  1. [41]
    Under s 47 of the Planning and Environment Court Act 2016, the court must:
  1. (a)
    confirm the decision;
  2. (b)
    change the decision; or
  3. (c)
    set it aside and:
  1. (i)
    make a decision replacing it; or
  2. (ii)
    return the matter to the entity that made the decision appealed against with directions it considers appropriate.
  1. [42]
    The appellant’s change application was lodged under s 78 of the Planning Act 2016.  That provision states:

“78 Making change application

  1. (1)
    A person may make an application (a change application) to change a development approval.
  2. (2)
    A change application must be made to the responsible entity.
  3. (3)
    The responsible entity is—
  1. (a)
    for a change application for a minor change to a development condition that a referral agency imposes— the referral agency; or
  2. (b)
    the P&E Court, if—
  1. (i)
    the change application is for a minor change; and
  2. (ii)
    the development approval was given because of an order of the court; and
  3. (iii)
    there were any properly made submissions for the development application; or

(ba) for a change application to change a condition imposed by the Minister under section 95—the Minister; or

(bb) for a change application to change a development approval given by the Minister for an application that was called in under a call in provision—the Minister; or

  1. (c)
    otherwise—the assessment manager.”

(emphasis added)

  1. [43]
    Section 81 of the Planning Act 2016 guides the assessment of, and decision with respect to, minor changes.  It states:

“81 Assessing and deciding application for minor changes

  1. (1)
    This section applies to a change application for a minor change to a development approval.
  2. (2)
    When assessing the change application, the responsible entity must consider—
  1. (a)
    the information the applicant included with the application; and
  2. (b)
    if the responsible entity is the assessment manager—any properly made submissions about the development application or another change application that was approved; and
  3. (c)
    any pre-request response notice or response notice given in relation to the change application; and
  4. (d)
    if the responsible entity is, under section 78(3)(ba) or (bb), the Minister—all matters the Minister would or may assess against or have regard to, if the change application were a development application called in by the Minister; and

(da) if paragraph (d) does not apply—all matters the responsible entity would or may assess against or have regard to, if the change application were a development application; and

  1. (e)
    another matter that the responsible entity considers relevant.
  1. (3)
    For subsection (2)(d) and (da), the responsible entity—
  1. (a)
    must assess against, or have regard to, the matters that applied when the development application was made; and
  1. (b)
    may assess against, or have regard to, the matters that applied when the change application was made.
  1. (4)
    After assessing the change application, the responsible entity must decide to—
  1. (a)
    make the change, with or without imposing development conditions, or amending development conditions, relating to the change; or
  1. (b)
    refuse to make the change.
  1. (5)
    If there is no affected entity, the responsible entity must decide the application within 20 business days after receiving the application.
  1. (6)
    If there is an affected entity, the responsible entity—
  1. (a)
    must not decide the application until—
  1. (i)
    the responsible entity receives a pre-request response notice, or response notice, from each affected entity; or
  2. (ii)
    the end of 20 business days after the responsible entity received the application; but
  1. (b)
    must decide the application within 25 business days after receiving the application.
  1. (7)
    However, the responsible entity and the applicant may, within the period stated in subsection (5) or (6)(b), agree to extend the period.”
  1. [44]
    Clearly, for an application to be assessed and decided under s 81 of the Planning Act 2016, it must be seeking a “minor change” to a development approval.
  1. [45]
    Further, pursuant to s 46(4) of the Planning and Environment Court Act 2016, the court cannot consider a change to the development approval the subject of a change application under s 78 of the Planning Act 2016 unless the change is only a minor change to the approval.
  1. [46]
    A “minor change” is defined in Schedule 2 of the Planning Act 2016.  The definition relevantly states:

“minor change means a change that—

…

  1. (b)
    for a development approval—
  1. (i)
    would not result in substantially different development; and
  2. (ii)
    if a development application for the development, including the change, were made when the change application is made would not cause—
  1. the inclusion of prohibited development in the application; or
  2. referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or
  3. referral to extra referral agencies, other than to the chief executive; or
  4. a referral agency to assess the application against, or have regard to, matters prescribed by regulation under section 55(2), other than matters the referral agency must have assessed the application against, or have had regard to, when the application was made; or
  5. public notification if public notification was not required for the development application.”

(emphasis added)

  1. [47]
    Schedule 1 of the Development Assessment Rules, promulgated by the Minister under s 68 of the Planning Act 2016, provides as follows:

“Schedule 1: Substantially different development

1. An assessment manager or responsible entity may determine that the change is a minor change[2] to a development application or development approval, where – amongst other criteria – a minor change is a change that would not result in ‘substantially different development’.

2. An assessment manager or responsible entity must determine if the proposed change would result in substantially different development for a change—

  1. (a)
    made to a proposed development application the subject of a response given under section 57(3) of the Act and a properly made application;
  2. (b)
    made to a development application in accordance with part 6;
  3. (c)
    made to a development approval after the appeal period.[3]

3. In determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development, in the context of the change proposed.

4. A change may be considered to result in a substantially different development if the proposed change:

  1. (a)
    involves a new use; or
  2. (b)
    results in the application applying to a new parcel of land; or
  3. (c)
    dramatically changes the built form in terms of scale, bulk and appearance; or
  4. (d)
    changes the ability of the proposed development to operate as intended;[4] or
  5. (e)
    removes a component that is integral to the operation of the development; or
  6. (f)
    significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or
  7. (g)
    introduces new impacts or increase the severity of known impacts; or
  8. (h)
    removes an incentive or offset component that would have balanced a negative impact of the development; or
  9. (i)
    impacts on infrastructure provisions.

(emphasis added)

  1. [48]
    There is no stated legislative requirement to consider these matters. They are also not an exhaustive statement of the circumstances that might be relevant to the determination of whether something is substantially different development. Nevertheless, applying a purposive approach to the reading of the planning legislation, both parties accepted that it was appropriate to have regard to them. I accept that it is appropriate that I do so.
  1. [49]
    Whether the proposed change is a ‘minor change’ is a matter of fact and degree.  It should be considered broadly and fairly, with guidance found in Schedule 1 of the Development Assessment Rules.

The issues

  1. [50]
    The prayer for relief in the Notice of Appeal seeks:
  1. (a)
    an order that the part of the decision against which the appellant appeals is set aside; and
  2. (b)
    a decision which:
  1. (i)
    replaces that part of the decision; and
  2. (ii)
    approves the aspect of the change application that was refused by the Council’s delegate.
  1. [51]
    The grounds of appeal are:
  1. (a)
    the decision of the delegate records only that the delegate was “not satisfied the application to change the exisiting approval accords with the requirements of the Planning Act 2016”; and
  2. (b)
    the decision notice does not state any reason for not making the refused change.
  1. [52]
    If the issues to be determined were defined by reference to that document, given the appellant has the onus, it would have needed to demonstrate that:
  1. (a)
    the change is a minor change – effectivley establishing that the change could be dealt with under s 81 of the Planning Act 2016 and s 46(5) of the Planning and Environment Court Act 2016; and
  2. (b)
    that the change ought be made having regard to those matters listed in s 81(2) and (3) of the Planning Act 2016. 
  1. [53]
    However, the ambit of the dispute as identified in the Notice of Appeal was overtaken by the order of His Honour Judge Williamson QC made on 9 April 2018. It states that:
  1. (a)
    by 9 April 2018, Council must provide the reasons on which Council’s delegate relied to refuse the aspect of the change application the subject of the appeal and upon which it will rely on the appeal; and
  2. (b)
    the issues for determination of the court are the reasons so provided.
  1. [54]
    In accordance with the order, Council provided a document titled “Ground for Refusal”.  It records that the reasons for refusal as follows:

“1. The proposed change the subject of this proceeding is not considered to be a minor change as defined in Schedule 2 of the Planning Act 2016, as the proposed change would result in substantially different development. In particular:

  1. the proposed change would increase the severity of known impacts, being the impact of the development on the heritage place. The increased intrusion of the development within the heritage place renders the heritage place less prominent and further diminishes the cultural heritage significance of the place.
  2. the proposed change would result in a dramatic change to the built form in respect of scale and bulk.
  3. the proposed change is inconsistent with the Heritage Overlay Code (the Code) under City Plan 2014, in that it is contrary to:
  1. Overall Outcome (2)(a) of the Code in that the change would detract from the cultural heritage significance of the heritage place;
  2. Overall Outcome (2)(b) of the Code in that the change would compromise the compatibility of the heritage place with the tower above;
  3. PO1 of the Code in that the cultural heritage significance of the heritage place would be diminished by the proposed change;
  4. PO2 of the Code in that the proposed change does not take account of all of the cultural significance of the heritage place;
  5. PO3 of the Code in that the setting of the heritage place would be compromised, not protected, by the proposed change; and
  6. PO4 of the Code in that the proposed change does not conserve the heritage place
  1. the change is inconsistent with Strategic Outcome (1)(c) of Theme 2 of the Strategic Framework in that it does not appreciate, protect and manage part of Brisbane’s built cultural heritage.
  2. the change is inconsistent with Element 2.1 (Brisbane’s Identify) of Theme 2 of the Strategic Framework, specifically:
  1. it is contrary to SO19 and L19.3 in that the cultural heritage significance of one of Brisbane’s important buildings and places is not protected;
  2. it is contrary to L19.1 in that it does not protect a place of State and local cultural heritage significance in accordance with the principles of the Burra Charter;
  3. it is contrary to L19.2 in that the adaptation and re-use of the heritage place no longer retains the significance of the place.”
  1. [55]
    The issue raised in the reasons focuses on whether the change in relation to the extent of the slab towards the western elevation on all floors is a minor change. Council seeks to substantiate its position by reference to the guidance on what is “substantially different development” in the Development Assessment Rules and a number of provisions of City Plan 2014.
  1. [56]
    The hearing proceeded on the basis that Council’s ‘Grounds for Refusal’ identify all matters on which Council wishes to rely, and that Council is not alleging that the refused change offends against matters which applied at the time when the development application was made (i.e. on 16 June 2014).
  1. [57]
    During final submissions, I raised a concern with the parties about the disparity between:
  1. (a)
    Council’s Grounds for Refusal in court document 15 and what, pursuant to the order of his Honour Judge Williamson QC, I was to determine in this appeal; as compared to
  2. (b)
    the matters canvassed during the hearing and the ultimate relief sought by the appellant, namely that the change be approved.
  1. [58]
    I was concerned about such matters because, in its written submissions, Council submitted:

“62. If the Court determines that the extension of the slab towards the western elevation is not inconsistent with the identified provisions of City Plan 2014 and that the change is minor, it would follow that the Appeal would be allowed and the minor change approved.

  1. It is at least possible that the Court might find some inconsistency with the identified provisions of City Plan but that the change was nonetheless minor.  In that case, the Court would need to assess whether or not the minor change should be approved.”
  1. [59]
    After a brief adjournment the parties requested the court to determine the appeal on the following basis:
  1. (a)
    the proposed change is not a minor change for the reasons identified in paragraphs (a) and (b) of Council’s Grounds for Refusal taking into account the matters identified in paragraphs (c), (d) and (e) of Council’s Grounds for Refusal.  (This is the effect of the order of His Honour Judge Williamson); and
  2. (b)
    if the change is a minor change, the acceptability of that change be assessed on the basis that it is inconsistent with the provisions identified in paragraphs (c), (d) and (e) of Council’s Grounds for Refusal.  That is the extent of the justiciable issues in terms of the assessment of the acceptability of the proposed change.
  1. [60]
    The provisions referred to by Council are in City Plan 2014, which commenced on 30 June 2014, a very short time after the development application was lodged and prior to its approval.
  1. [61]
    The appellant (through its Counsel) accepted that it is appropriate for the court to give weight to City Plan 2014. It also accepted that in determining whether the change is a minor change, it is appropriate to have regard to the provisions of City Plan 2014 identified by Council.
  1. [62]
    The provisions of City Plan 2014 relied on by Council provide are in its Outline at para 74. They are as follows:
  1. (a)
    strategic outcome (1)(c) of Theme 2 of the Strategic Framework, which states:

“Brisbane has locations within the city which have cultural heritage significance to a broad range of groups and individuals. Character housing provides a link with Brisbane’s history and helps to reinforce a strong sense of place and community identity. Brisbane’s character elements and built cultural heritage are appreciated, protected and managed. Locations of cultural significance for Aboriginal people are recognised and protected”

  1. (b)
    specific outcome SO19 and land use strategy L19.1, L19.2 and L19.3 in Table 3.4.2.1, Element 2.1, Theme 2 in the Strategic framework, which state:

Specific Outcome

Land use strategy

Heritage, character and cultural values

SO19

Brisbane;s important buildings and places that are important to the city’s history are protected.

L19.1

Heritage places and precincts of important local, city-wide or State cultural heritage significance or special significance to Aboriginal people are identified and protected in accordance with the principles of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance.

L19.2

The adaptation or re-use of heritage places for purposes that retain the significance of the place is supported.

L19.3

Development in or adjacent to identified heritage places or precincts protects the cultural heritage significance of the place or precincts.

(emphasis added)

  1. (c)
    overall outcome (2)(a) and (b) of the Heritage overlay code, which state:

“(a) Development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values.

  1. (b)
    Re-use of a heritage place is compatible with its cultural heritage significance, including any Aboriginal cultural values and retains its heritage significance.”

(emphasis added)

  1. (d)
    performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code, which state:

“PO1

Development provides for the future protection of the heritage place and does not damage or diminish its cultural heritage significance.

Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with The Australia ICOMOS Burra Charter.

PO2

Development is based on and takes account of all aspects of the cultural significance of the heritage place.

Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter – Cultural Significance.

PO3

Development protects the fabric and setting of the heritage place while providing for its use, interpretation and management.

Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal has been prepared in accordance with the Guidelines to the Burra Charter – Conservation Policy.

PO4

Development is based on the issues relevant to the conservation of the heritage place.

Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter – Procedures for Undertaking Studies and Reports.”

(emphasis added)

  1. [63]
    As such in considering these provisions of City Plan 2014, relevant extracts from the Burra Charter include those oulined at paragraph 75 of Council’s Outline as follows:

“Article 1. Definintions

For the purposes of this Charter:

1.1 Place means site, area, land, landscape, building or other work, group of buildings or other works, and may include components, contents, spaces and views.

Explanatory Notes

The concept of place should be broadly interpreted.  The elements described in Article 1.1 may include memorials trees, gardens, parks, places, archeological sites and spiritual and religious places.

1.2 Cultural significance means aesthetic, historic, scientific, social or spiritual value for past, present or future generations.

Cultural significance is embodied in the place itself, its fabric, setting, use, associations, meanings, records, related places and related objects.

Places may have a range of values for different individuals or groups.

Explanatory Notes

The term cultural cignificance is synonymous with heritage significance and cultural heritage value.

Cultural significance may change as a result of the continuing history of the place. 

Understnading of cultural sifgnificance may change as a result of new information.

1.4 Conservation means all the processes of looking after a place as to retain its cultural significance.

…

1.11 Compatible use means a use which represents the cultural significance of a place.  Such a use involves no, or minimal, impact on cultural significance.

1.12 Setting means the area around a plcae, which may include the visual catchment.

Consevation Principles

…

Article 8. Setting

Conservation requires the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place.

New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate.

Explanatory Notes

Aspects of the visual setting may include use, siting, bulk, form, scale, character, clour, texture and materials.

Other relationships, such as historical connections, may contribute to interpretation, appreciation, enjoyment or experience of the place.

…

Conservation Processes

…

Article 15. Change

15.1 Change may be necessary to retain cultural significance, but is undesirable where it reduces cultural significance.  The amount of change to a place should be guided by the cultural significance of the place and its appropriate interpretation.

Explanatory notes

When change is being considered, a range of options should be explored to seek the option which minimises the reduction of cultural significance.

…

Conservation Practice

…

Article 27. Managing Change

27.1 The impact of proposed changes on the cultural significance of a place should be analysed with reference to the statement of significance and the policy for managing the place.  It may be necessary to modify proposed changes following analysis to better retain cultural significance.”

(emphasis added)

  1. [64]
    In summary, Council alleges that the proposed change is not a minor change because it:
  1. (a)
    increases the severity of known impacts on the heritage place; and
  2. (b)
    results in a dramatic change to the built form in repsect of scale and bulk (as it relates to the heritage place).
  1. [65]
    Both parties accept that these issues and the overall question of whether the change is minor should be determined by consideration of the Criteria and related statements in the Queensland Heritage Register Citation, in the context of the relevant identified planning provisions. The planning provisions identify the scope of impacts to be considered and provides a context for judging their severity.
  1. [66]
    In the strategic framework of City Plan 2014, land use strategy L19.1 identifies that protection of heritage places should be in accordance with the principles of the Burra Charter. Notes to the performance outcomes in the Heritage Overlay Code support guidance being taken from the Burra Charter, including guidelines to the Burra Charter for cultural significance conservation policy.
  1. [67]
    In terms of the importance of the planning provisions identified by Council to the assessment of the severity of the impacts, I am assisted by a statement made by Mr Buckley in his Statement of Evidence as follows:

“35. Develoment in Brisbane is affected by many codes of the City Plan 2014.  However, there are very few codes of the City Plan 2014 that apply to individual sites.  Whilst there are precincts, streets, and whole suburbs affected by other codes of the City Plan 2014, there are only a handful of codes which are site specific.  The Heritage Overlay Code of the City Plan 2014 is one of those.

  1. This particularity of planning intent triggered by the overlay necessarily raises the assessment to a higher level and proposals, whether they be original/aprovals, warrant careful analysis.”
  1. [68]
    This approach was accepted by his Honour Judge Brabazon QC in Kirkham v Brisbane City Council [2007] QPEC 106; [2008] QPELR 290.
  1. [69]
    The intent to protect and conserve heritage places is clearly site specific and, as Mr Buckley says, raises assessment to a higher level of scrutiny then might otherwise apply.
  1. [70]
    Before turning to each of those issues, it is convenient to consider the extent of the heritage place and its cultural heritage signficance.

The Heritage Place

  1. [71]
    As I have already mentioned, the heritage building is on both the Queensland Heritage Register and the local heritage register. The extent of the place is identical in each register.
  1. [72]
    There is no evidence of a citation prepared by Council with respect to the local heritage register. There is, however, a citation for the Queensland Heritage Register. The parties accept that the question of whether the change is minor should be determined by consideration of statements in the Queensland Heritage Register. 
  1. [73]
    The heritage building was entered on the Queensland Heritage Register on 29 April 2003.
  1. [74]
    The online extract of the State Heritage Citation is contained in Appendix 1 to the Statement of Evidence of Mr Kennedy, which is part of Exhibit MOK-1 to his affidavit. The Heritage Citation commences:

“Scott Street Flats

  • Place ID: 601171
  • 2 Scott Street, Kangaroo Point
  1. [75]
    At the time of the listing, “place” was defined in the Queensland Heritage Act 1992 as follows:

““place” means a defined or readily identifiable area of land (which may be comprised oin separate titles and in different ownership), and includes–

  1. (a)
    a building and such of its immediate surrounds as may be required for its conservation;
  2. (b)
    a natural feature of historical significance and such of its immediate surrounds as may be required for its conservation.”
  1. [76]
    Currently, place is defined in the Queensland Heritage Act 1992 as follows:

“…place–

  1. Place means a defined or readily identifiable area of land, whether or not held under 2 or more titles or owners.
  2. Place includes–
  1. (a)
    any feature on land mentioned in item 1; and
  2. (b)
    any part of the immediate surrounds of a feature mentioned in paragraph (a) that may be required for its conservation.”
  1. [77]
    I have already referred to the definition of “place” under the Burra Character.
  1. [78]
    It is also relevant to identify the “heritage place” by reference to the heritage place mapping.
  1. [79]
    In terms of the citation, the Queensland Heritage Register citation attributes significance to the heritage building by reference to criteria in s 23 of the Queensland Heritage Act 1992 (Qld) (as that provision stood at 29 April 2003).  The citation states:

“Significance

Criterion A

The place is important in demonstrating the evolution or pattern of Queensland’s history.

Scott Street Flats, a two storey building of masonry and timber built in c1925, is historically important for its association with the entry of women into the professions in Queensland, particularly into the architectural profession.

Scott Street Flats is important in demonstrating the interwar residential development of Brisbane when flats appeared in inner-city suburbs, increasing the density and diversity of the city’s housing stock.

Criterion B

The place demonstrates rare, uncommon or endangered aspects of Queensland’s cultural heritage.

Scott Street Flats demonstrate rare aspects of Queensland’s cultural heritage as there are few surviving intact examples of the work of pioneer woman architects in Queensland.

Criterion E

The place is important because of its aesthetic significance.

The building has aesthetic significance as a well designed example of an early purpose-built flats building in the Tudor Revival Style.

Criterion H

The place has a special association with the life or work of a particular person, group or organisation of importance in Queensland’s history.

The Scott Street Flats have a special association with the work of Elina Mottram, the first woman to open her own architectural practice in Brisbane and Queensland’s longest practising woman architect.

The Scott Street Flats also have an association with Professor and Mrs Cumbrae-Stewart, prominent citizens of Brisbane in the 1910s, 20s and 30s.”

  1. [80]
    The criteria for entry of a place in the Queensland Heritage Register is directly comparable to that for inclusion of a place in the Heritage overlay. The criteria relied on when the heritage building was entered in 2003 were those found within s 23(1)(a), (b), (e), and (h) of the Queensland Heritage Act 1992.  Those criteria are directly comparable to criteria found within s 2(1)(a), (b), (e), and (h) of the Heritage Planning Scheme Policy.
  1. [81]
    In understanding this citation, it should be appreciated that the Queensland Heritage Act 1992, relevant definitions include:

““aesthetic significance”, of a place or object, includes its visual merit or interest.

“cultural heritage significance”, of a place or object, includes its aesthetic, architectural, historical, scientific, social or technological significance to the present generation or past or future generations.

“place” means defined or readily identifiable area of land (which may be comprised in separate titles and in different ownership), and includes–

  1. (a)
    a building and such of its immediate surrounds as may be required for its conservation;
  2. (b)
    a natural feature of historical significance and such of its immediate surrounds as may be required for its conservation.”
  1. [82]
    The statements of significant in the Queensland Heritage Register citation contain no attribution of significance because of the setting of the building (for example, by reference to its curtilage or garden) or by reference to specified views to or from the heritage building. However, curtilage of the heritage place can be seen to be identified on the heritage place mapping. It extends beyond the perimeter of the building envelope itself. The statements of significance in respect of Criteria A, B and E also all involve recognition of the desirability of an ongoing opportunity to appreciate and understand the building.  The impact on the visual attributes should be understood in the context of an ability to properly appreciate and understand the cultural heritage significance described in those criteria.
  1. [83]
    At this juncture it is appropriate to make brief mention of my decision in ISPT Pty Ltd v Brisbane City Council & Anor [2017] QPEC 52; [2017] QPELR 1117.
  1. [84]
    The Appellant’s submission quote the following passage from my judgment.

“…it is the statement of significance, and the assessment of the proposed development’s impact on such matters, upon which attention should ultimately focus to determine whether there is conflict with the Heritage overlay code.”

  1. [85]
    In that case, the issue in dispute related to whether particular fabric of the building that was proposed to be demolished was of cultural heritage significance.
  1. [86]
    Here the consideration is an entirely different one, it relates to whether, when considering impact on cultural heritage significance, regard can be had to impact on the setting of a building when the building is what is referred to as having cultural heritage significance.
  1. [87]
    As I have already alluded to, when determining impact on the cultural heritage significance in issue in this case, one should have regard to impact on the opportunity to appreciate and understand the building.
  1. [88]
    The provisions of City Plan referred to by Council support that intention in that they seek to protect not only the cultural heritage significance, but some of those provisions also indicate a broader policy to protect the heritage place.  In that respect, see, for example. specific outcome SO19, and land use strategy 19.1 in table 3.4.2.1, element 2.1, theme 2 in strategic framework, as well as performance outcome PO1 and, in particular, performance outcome PO3 of the Heritage Overlay Code which refers to development protecting the setting of the heritage place.. 
  1. [89]
    The provisions in the City Plan draw a distinction in their terms between, in some instances, protecting the heritage place and, in other instances, protecting the cultural heritage significance. As such, I do not accept that it is that simple as saying, as the appellant does, whether the refused change is approved or not, the heritage building will remain readily capable of being appreciated for those attributes referred to in the statement of significance. That is the very issue that requires careful consideration in this case.
  1. [90]
    Turning then to the two specific matters relied on by Council, that is, whether the change will increase the severity of known impacts on the heritage place, and whether it will result in a dramatic change to the built form in respect of bulk and scale. 

Will there be an increase in the severity of known impacts?

  1. [91]
    Both parties called expert evidence with respect to these issues.
  1. [92]
    The experts called by the appellant included:
  1. (a)
    Mr Proberts with respect to architecture and visual considerations;
  2. (b)
    Mr Allom with respect to heritage matters; and
  3. (c)
    Mr Ovenden with respect to town planning. 
  1. [93]
    The experts called by Council included:
  1. (a)
    Mr King with respect to architecture and visual considerations;
  2. (b)
    Mr Kennedy with respect to heritage matters;[5] and
  3. (c)
    Mr Buckley with respect to town planning. 
  1. [94]
    The written submissions on behalf of the appellant contains extensive extracts from the expert evidence. I have considered all of the evidence referred to, as well as the other evidence. However, I am cognisant of the rather frequent reminders of the urgency of this matter and, given the need for its urgent determination, my reasons that follow will be briefer than they ordinarily might be in terms of the analysis of that evidence.
  1. [95]
    On the issue of increases to the severity of known impacts, Mr Allom opines in his first affidavit at paragraph 22 that in heritage terms, consideration of the refused change hinges on comparison of the extent to which the multi-unit building will project over the heritage building, the manner in which that is expressed architecturally, and a consideration of potential impacts on the aspects of significance identified in the Queensland Heritage Register citation.
  1. [96]
    He opines that none of the identified aspects of significance of the heritage building are affected by the multi-unit building as approved. He says that while the 2015 approval authorised changes to the heritage building, those matters do not detract from the aspects of significance identified in the Queensland Heritage Register citation.
  1. [97]
    In his heritage impact assessment of June 2014, Mr Allom said:

“Their location facing the Brisbane River has generated a response in the large bay windows to both levels at this elevation.  The building is easily appreciated from the river bank and from Scott Street itself and these two elevations are of primary significance in aesthetic terms …

The setting of an urban context of the Scott Street Flats is part of the aesthetic significance of the place

…

Externally, the elevations to the west and north, those identified as being of primary significance, are to remain.  To the south, a deck and service undercroft is to be removed and new timber deck and swimming pool constructed.

…

While the proposed development of the site of the Scott Street Flats will inevitably affect the setting of the listed place, the impact upon significance is acceptable.  The conservation of the building itself has no impact upon cultural significance.”

(emphasis added)

  1. [98]
    In terms of the October 2015 development approval, I consider it appropriately described by Mr Buckley as “a very generous encroachment into a state heritage place/local heritage place”.
  1. [99]
    In terms of the later approved changes to the multi-unit building, Mr Allom opined in paragraph 23 of his first affidavit that the changes to the way in which the heritage building integrates with the undercroft of the multistorey building that were approved by the decision that advised of the refused change do not detract from the aspects of significance identified in the Queensland Heritage Register citation. He would not describe the approved impact of the multistorey building on the heritage building as severe. He considers that the increase in horizontal projection of the multistorey building will be barely perceptible to most people.
  1. [100]
    In paragraph 24 of his first affidavit, Mr Allom says that the extension of the slabs over the heritage building on levels 1 to 14 of the multi-unit building (that Council opposes) does not physically impact upon the fabric of the heritage building. He acknowledges that extension of the slabs on those levels does extend further over the heritage building but does not consider that to have any impact on the aspects of significance identified in the Queensland Heritage Register citation. He does not consider that the extension of the slabs on those levels reduces the prominence of the heritage building when compared to the approved impact of the multi-unit building on the heritage building. He considers that the heritage building will remain a prominent element in the western part of the site when viewed from Scott Street. He considers it will be no less prominent if viewed from the west. He states that nothing in the increased projection obscures or diminishes the visible architectural expression of the heritage building.
  1. [101]
    In his second affidavit, when responding to Mr Kennedy Mr Allom said:

“While much is made by Mr Kennedy of the increasing cantilever over the roof of the listed building, it is my opinion that an appreciation of any impact of the Refused Change must consider the scheme in total, including the integration of the 2 buildings at ground or foyer level. 

Approval of the way in which the Listed Building is integrated with the Apartment Tower at ground level (as discussed in paragraph 18 of my first affidavit) enhances the relationship between the two buildings.  Although the Refused Change (if approved) will increase the horizontal projection of the Apartment Tower over the Listed Building, that will not detract from the relationship between the two buildings. 

I do not agree with Mr Kennedy that the Refused Change (if approved) would significantly reduce the understanding and appreciation of the identified aspects of cultural heritage significance of the listed building.”

  1. [102]
    Mr Allom also considered that the refused change did not make a significant difference to the setting of the building.
  1. [103]
    With respect to the approved development, (i.e. the October 2015 development approval) and the refused change, Mr Kennedy said, in his affidavit:

“The impact on the cultural heritage significance of the Scott Street Flats caused by the cantilever as proposed in 2015 development approval was already of concern.  The cantilevered tower is an imposing structure as shown in the eastern elevation view of the 2015 development approval, reproduced as figure 2 of the report.  Its presence impedes the view from Scott Street of the Scott Street Flats and hinders an understanding and appreciation of its cultural heritage significance.  The current proposed increase in the cantilever of the tower as shown in Figure 3 of the Report magnifies this impact to such an extent that an understanding and appreciation of the cultural heritage significance of the Scott Street Flats is significantly reduced.”

(emphasis added)

  1. [104]
    Having regard to the multitude of plans provided, and aided in my appreciation of them to some extent by the photos and the model in Exhibit 2 at pp 45 to 50 (which was provided for illustrative purposes only), I prefer the evidence of Mr Kennedy. The approved development including the most recent approved changes pushes the development to its limit in terms of its acceptability. In my view, the proposed changes increase the severity of that approved impact. I find the evidence of Mr Buckley on this issue to be persuasive also. 
  1. [105]
    At paragraph 24 of his statement of evidence, Mr Buckley describes the direct and cumulative impact of the subsequent changes to the development, culminating in the refused change. 
  1. [106]
    Mr Buckley expressed the following opinion in respect of the present development, including the extended slab:

“18. Even at the current incomplete stage of construction, it is obvious that the tower will overwhelm the Scott Street Flats building by scale and by notions of building to building oppressiveness.  The overhang covers the full width (i.e. north/south) of the Scott Street Flats building for the fourteen (14) levels above and part of the length of the roof (i.e. east/west) of the Scott Street Flats building.  Although the overhang of the tower building does not align with the apex of the roof of the Scott Street Flats building, it is unmistakable that the tower physically dominates the Scott Street Flats building.”

  1. [107]
    The fact a building overhangs is not a design response in itself that necessarily amounts to an adverse impact – it is the nature of the overhang, the horizontal and vertical separation between new and “old”, and the degree of oppressiveness that is relevant.   The proposed change takes the degree of oppressiveness to an extent that is unacceptable.  In that sense, it increases the severity of the approved impact.
  1. [108]
    The building is currently under construction and largely covered in scaffolding and protective sheeting. It was not, therefore, possible to obtain accurate photographic representations of the interrelationship between the heritage building and the multi-unit building.  However, aspects of it were shown in photos before the court. 
  1. [109]
    In my view, the northern elevation, and the extent to which the new tower will dominate the heritage building will be visible to people using Scott Street, including to access the CT White Park, the public areas adjacent the river, and Hamilton Street.
  1. [110]
    In that context, Mr Allom opined that changes approved by the change application decision notice provided positive improvements that benefit the heritage building. Those improvements were identified as the removal of the previously approved bridge linking the lobby to the heritage building and a reduction in the area of the lobby.
  1. [111]
    I accept that the removal of the bridge provides some improvement in the opportunity to view the heritage building.
  1. [112]
    However, I regard the appreciation of the heritage building from Scott Street to be diminished by the further extension of the slab over the roof of the heritage building.
  1. [113]
    In re-examination, Mr King said the refused change would have an impact on how the building is perceived from Scott Street. In my view, that is apparent from the drawings illustrating the extent of the refused change extending westward over the heritage building. In that respect, I accept the evidence of Mr Kennedy that:

“The proposed changes will result in a noticeable increase in the overhang of the western elevation of the  high-rise tower above the Scott Street Flats building.  This increase will diminish the Scott Street Flats building’s ability to be appreciated and understood as an interwar block of flats designed by an important architectural practitioner in Queensland.  Because of this, the changes to the proposal will damage or diminish Scott Street Flats’ cultural heritage significance.”

  1. [114]
    The change does not appropriately protect the heritage place. The severity of its impact in terms of the protection of the heritage place is increased.
  1. [115]
    Having regard to the plans, photos and visual representations, I do not accept the opinion of Mr Proberts that from Scott Street the volume of the space around the heritage building is similar to or improved by the change, even if view lines to the heritage building will be maintained.

Will the change result in a dramatic change to the built form in respect of bulk and scale?

  1. [116]
    In terms of whether the change results in a dramatic change to the built form in respect of scale and bulk, it is relevant to make some brief observations about the design.
  1. [117]
    As was noted by Mr Buckley, the external design elements of the approved development are different to most apartment buildings in Kangaroo point and for much of inner-suburban Brisbane. Differentiating design observations are:
  1. (a)
    the external edge of the building on all four elevations is deliberately inconsistent over the height of the building.  There are variations both inwards and outwards of what might be considered as the average edge;
  2. (b)
    the variations are greatest on the northern, southern and western elevations of the tower;
  3. (c)
    there is very clear reliance on full height screens mainly on the northern, western and southern elevations which on the western elevation will cover approximately 75 per cent of the entire building’s façade.
  1. [118]
    In Mr Buckley’s view, as a consequence of the full height screening element, the elevations can be interpreted as having a non-articulated almost blank façade when all screens are in a closed configuration.
  1. [119]
    I agree with the opinion expressed by Mr Buckley at paragraph 20 of his report that the screens constitute a dominant element and contribute materially to scale and building volume. The scereens are full height (i.e. floor to ceiling of 3150 mm) and if on a floor where they can cover the full western outlook, will be 16 metres wide.  As identified above, the potential coverage is 75 per cent of the entire façade over 14 visible levels. 
  1. [120]
    The colour of screens is to be varied within a limited tonal range to, it is understood, be a homage to the relief of the Kangaroo Point Cliffs, which start approximately 500 metres upstream.
  1. [121]
    Mr Buckley refers to many of the individual design changes, which he says had a direct or cumulative impact on other aspects of the design of the mulit-unit building. In part, he notes that the outcome is that the screens have shifted to the outer edge of the western elevation. He opines that the overall effect is a shift of the perceived volume of 14 levels of the residential tower towards the river, only exacerbating the contrasting scale and oppressive relationship of the residential tower on the heritage building.
  1. [122]
    Mr Ovenden disagreed. In responding to the affidavits of Messrs King and Mr Buckley, Mr Ovenden said:

“I do not agree with Mr Buckley about the elevations having an almost blank façade when all screens are in closed configuration.  There is a high level of articulation on the Western façade as a result of the differential slab projections at various levels of the building.  This variation does not just occur between different levels of the building but also at each level or combination of levels.  This, when combined with the colour variation, shadowing from recesses, the permeability of screen elements and the expectation that the shutters are independent and moveable creates an artistic, interesting, highly articulate façade.

…

…In my opinion, the extent to which there has been additional “volume” at each level compared to the approved plans is of no town planning consequence

…In my opinion, the increase in the cantilever the subject of the refused change is of no town planning consequence.”

  1. [123]
    Mr Ovenden did not identify specific architectural drawings on which he relied in forming his opinion. His opinion was formed having regard to them all. However, he did not explain, or illustrate by example, how he formed his opinion that the building has a highly articulated façade. Having looked at the plans myself, I am not persuaded that it does. While Mr Ovenden offered to go through each plan, section and elevation during his evidence, I do not regard the appellant’s submission that that offer was not taken up during cross-examination as helpful. It was not incumbent on Council to adduce evidence, by way of cross examination, that explained the underlying reasons substantiating Mr Ovenden’s opinion. 
  1. [124]
    Nevertheless, having regard to the plans, visual representations and many other documents placed before the court, I am of the view that the change does not result in a dramatic change in the built form in respect of scale and bulk other than to the extent that it increases the severity of the impact on the heritage building.

Conclusion

  1. [125]
    In my view, the proposed change unacceptably affects the heritage place by crowding it and negatively impacting on the ability to appreciate its cultural heritage significance, a matter which is of moment when one has regard to the provisions of City Plan 2014.
  1. [126]
    In those circumstances, I am not satisfied that the proposed change is a minor change. Given I am not satisfied that the proposed change is a minor change, it is unnecessary for me to undertake an assessment of the proposed change.
  1. [127]
    For the reasons provided, the appeal is dismissed. I confirm the decision of the Council to refuse the change.

Footnotes

[1]Section 43 of the Planning and Environment Court Act 2016.

[2]For a definition of minor change, see schedule 2 of the Act.

[3]For changing development approvals, see chapter 3, part 5, division 2, subdivision 2 of the Act.

[4]For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment.

[5]In order to accommodate an urgent hearing, as requested by the appellant, Mr Kennedy’s oral evidence was given from England where he was on leave.

Close

Editorial Notes

  • Published Case Name:

    GBW Investments Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    GBW Investments Pty Ltd v Brisbane City Council

  • MNC:

    [2018] QPEC 33

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    08 Jun 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52
2 citations
Jump To
Cite 1 - [2017] QPEC 52
Cite 2 - [2017] QPEC 52
ISPT Pty Ltd v Brisbane City Council [2017] QPELR 1117
2 citations
Jump To
Cite 1 - [2017] QPELR 1117
Cite 2 - [2017] QPELR 1117
Kirkham v Brisbane City Council [2007] QPEC 106
2 citations
Jump To
Cite 1 - [2007] QPEC 106
Cite 2 - [2007] QPEC 106
Kirkham v Brisbane City Council [2008] QPELR 290
2 citations
Jump To
Cite 1 - [2008] QPELR 290
Cite 2 - [2008] QPELR 290

Cases Citing

Case NameFull CitationFrequency
11 Ludlow Pty Ltd v Brisbane City Council [2020] QPEC 551 citation
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 162 citations
Eljasie Pty Ltd v Cairns Regional Council [2021] QPEC 792 citations
Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 151 citation
Lennium Group Pty Ltd v Brisbane City Council [2019] QPEC 172 citations
Newkrop Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 412 citations
Pelican Noosa Pty Ltd v Noosa Council [2021] QPEC 113 citations
1

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