July 2, 2013
Clelland & Ors v Brisbane City Council & Anor  QPEC 027
This Judgment was delivered by his Honour Judge Everson on 24 June 2013.
This matter involved an appeal commenced by residents of a multi-unit development against Brisbane City Council’s approval of a development application for a development permit involving a material change of use of a hotel, including short term accommodation, at McDougall Street, Milton.
The proposed development incorporated a hotel, associated facilities such as conference and meeting rooms, 132 short term accommodation units and 56 car parks in a 47 metre high tower. Essentially, the proposal was for an extension of the existing development on the site, which operates as ‘Lure’ seafood restaurant and function centre, but does not incorporate any residential development. The site is located within the high density residential area in the Brisbane City Plan 2000. At the time the development application was made, the site was located within the Milton Local Plan area, and curiously, within the office precinct of that local plan, which envisages medium rise office development on the site. The Milton railway station is approximately 400m from the site and the draft Milton Station Neighbourhood Plan applies on the opposite side of McDougall Street.
The appellants contended that the proposed development conflicted with City Plan, and in particular, the Milton Local Plan. The appellants argued that the conflicts would have unacceptable impacts on their amenity, principally as a consequence of loss of views, breezes, shadowing, light, noise and traffic impacts owing to demand for parking generated by the proposed development. Other inconsistencies with City Plan, such as conflict with the short term accommodation code and the residential design – high density code were also identified.
The Court was required to decide the appeal based on the laws and policies applying when the application was made, with a discretion to give appropriate weight to any new laws and policies. Further, the Court’s decision could not conflict with City Plan unless there were sufficient grounds to justify the decision, despite the conflict.
The Court determined that the proposed development conflicted with City Plan, for varying reasons, and that the alleged impacts of the proposed development on neighboring amenity such as loss of views, breezes, shadowing, light, noise and odour could be addressed through the imposition of lawful conditions.
However, the Court did not reach the same conclusion in respect of traffic impacts.
The Council’s Transport, Access, Parking and Servicing Code (TAPS) requires the provision of 1 car park per 8m2 of GFA for a restaurant, 1 space per short term accommodation unit, and visitor parking. The proposed development proposed the use of the existing basement building which could accommodate a maximum number of 56 vehicle spaces, including 1 motorcycle space and the provision of 18 vehicle spaces through the use of ‘car stackers’ and valet parking.
The Court considered the requirements of the TAPS, along with the ability of the existing development on the site to accommodate its own car parking generation within the existing basement, nearby paid public parking opportunities and a high demand for on-street parking within the vicinity of the site. The Court determined that the proposed development would be a significant car parking generator, and that there was a major conflict with the requirements of City Plan which could not be overcome.
The Court found in favour of the appellants, who we represented, and refused the proposed development on the basis of inadequate supply of on-site car parking.
What this decision means
The requirements of TAPS can sometimes be a make or break for development feasibility, particularly when regard is had to additional requirements for visitor parking, and the high cost of constructing underground basement car parking. Despite all other aspects of a proposed development ‘stacking up’, development proponents ought to ensure that proposed developments satisfy the requirements of TAPS to the greatest extent possible, particularly in areas of high traffic and on-street parking demand.