The case of Robertson v Brisbane City Council & Ors [2022] QCA 45 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) in respect of the decision of the Planning and Environment Court of Queensland (Planning and Environment Court) in the case of Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44 in respect of the definition of "storey" under the Brisbane City Plan 2014 (City Plan).

The reasoning of the Planning and Environment Court was summarised in our December 2021 article.

The Applicants applied for leave to appeal on the grounds that the Planning and Environment Court erred by finding that a development application for a material change of use for a multiple dwelling (three units) (Development Application) was for three storeys and not for four storeys. 

The main issue for the Court of Appeal to consider was what is meant by the word "storey" as defined in the City Plan. 

The Court of Appeal dismissed the appeal and held that the Development Application was for only three storeys because there was no distinct feature of the proposed development that satisfied the definition of "storey" in the City Plan.

The Council assessed the Development Application as code assessable because the Council regarded the proposed development to be for three storeys and less than 11.5 metres in height.

The Applicants, as owners and occupiers of the neighbouring property, applied to the Planning and Environment Court and argued that the Council erred in its decision to treat the Development Application as code assessable. The Applicants argued that the Development Application sought approval for four storeys because a 14x16m² fully enclosed structure external to the lift shaft and stairway on the roof (Subject Area) constituted a "storey" and that the Council should have treated the Development Application as impact assessable under section 45(5) of the Planning Act 2016 (Qld). 

The Planning and Environment Court held that the Applicants' argument was "entirely misconceived" (at [24]) because the Subject Area was required for the use of the lift and stairs. The Planning and Environment Court held that the Subject Area was excluded from the definition of "storey" because it was within the scope of paragraph (a)(iii) of the definition of storey. 

The Court of Appeal had to determine whether, upon the facts as determined by the Planning and Environment Court, the Subject Area was a storey as defined in City Plan. 

A "storey" is relevantly defined in the City Plan as follows:

"a. means a space within a building between 2 floor levels, or a floor level and a ceiling or roof, other than–

i. a space containing only a lift shaft, stairwell or meter room; or

ii. a space containing only a bathroom, shower room, laundry, toilet or other sanitary compartment; or

iii. a space containing only a combination of things stated in subparagraph (i) or (ii); or 

…

b. includes– 

i. a mezzanine; and 

ii. a roofed structure that is on, or part of, a rooftop, if the structure does not only accommodate building plant and equipment."

The Applicants' argument in the Planning and Environment Court was that the Subject Area was a storey as defined in paragraph (a) of the definition of "storey" in the City Plan. The Applicants' argument in the Court of Appeal was different in that the Applicants argued that the Planning and Environment Court should have held that the Subject Area was a roofed structure and an additional storey as defined in paragraph (b)(ii) of the definition of "storey" in the City Plan.

The Respondents argued that the application for leave to appeal should be refused because the Applicants had raised a different argument, which would require a new determination of facts. The Court of Appeal held that the Respondents' submissions were not grounds for refusing the application for leave to appeal. However, that the Applicants' new argument would determine the same legal question as decided in the Planning and Environment Court. 

The Court rejected the Applicants' description that the Subject Area was a roofed structure as described in paragraph (b)(ii) of the definition of "storey" in the City Plan. The Court held that the Subject Area was part of the building and not a distinct structure constituting a further storey for the following reasons: 

• It was not a sensible interpretation of the definition that a lift shaft or stairway adds one storey for each storey of the building that it serves. 

• The Subject Area was inseparably connected to the interior of the building by the lift shaft and stairs that it served. 

The Court agreed with the findings of the Planning and Environment Court that the Subject Area was within the exception to a "storey" in paragraph (a)(i) of the definition of "storey" in the City Plan. The Court held that the intent of the City Plan was not that the same Subject Area could then amount to a "storey" under paragraph (b) of the definition.

The Court granted the application for leave to appeal and dismissed the appeal.