Robertson v Brisbane City Council & Ors [2022] QCA 45 

Background

The Court of Appeal has dismissed an appeal against the decision of his Honour Judge Jones in the Planning and Environment Court which had refused an application for declarations and orders that the decision of the town planning delegate of Brisbane City Council to approve a development application for Material Change of Use (Multiple Dwelling) (three full-floor luxury units) was incorrect and therefore unreasonable at law.

Relevantly, the top floor/recreation area of the proposed development included an enclosed space containing a lobby area and lift shaft overrun of some 30m² in area, being the “subject area” as defined by the Court of Appeal.

Level of assessment

In issue was whether the proposed development, properly construed, ought to have been considered through an application to Council:

1. for a four (4) storey building, having regard to the subject area, and therefore impact assessable (thereby attracting submitter appeal rights); or
2. for three (3) storeys, and therefore code assessable (as the case was) owing to the zoning of the subject land within the 2-3 storey mix under Council’s City Plan 2014.

Discussion

The Court (their Honours Fraser JA and Freeburn J concurring with McMurdo JA) held as follows, namely that:

1. the subject area was not a ‘roofed structure’ for the purposes of the definition of “storey” within Council’s City Plan 2014 and was therefore excluded by paragraph (b)(ii) of that definition;
2. the “structure” or subject area in question was not a distinct structure on top of the roof, thereby constituting a separate, fourth storey, but rather, formed part of the building, owing to the fact that the lift shaft ran through the height of the entire building from the basement to the rooftop area under consideration; and
3. the proposed development was therefore ultimately a three (3) storey building and not a four (4) storey building as contended for by the appellant/applicant, and that the Planning and Environment Court was correct in dismissing the application below.

Conclusion

In the result, the Court ordered that leave to appeal be granted, the appeal be dismissed and that the appellants pay the respondents’ costs of an incidental to the proceeding.

Peter Bittner, Chris Vale and the HWL Ebsworth Lawyers team were delighted to assist our clients, the second and third respondents (Weyers Developments Pty Ltd and RD Nominees Pty Ltd) in successfully resisting the appeal.

This article was written by Peter Bittner, Partner, and Chris Vale, Solicitor.