The height of proposed buildings or structures is often a key assessment benchmark in Queensland planning schemes. There are many instances where local governments have refused development that exceeds prescribed maximum building heights.
Calculating accurate building height requires an understanding of how it is to be properly measured, including the proper identification of ground level.
Schedule 4 of the Planning Regulation 2017 identifies “building height’ as an administrative term that may be used in local planning instruments. It is defined as follows:
“building height, of a building, means –
(a) the vertical distance, measured in metres, between the ground level of the building and the highest point on the roof of the building, other than a point that is part of an aerial, chimney, flagpole or load-bearing antenna; or
(b) the number of storeys in the building above ground level.”
“Ground level” is an essential component of this definition. “Ground level” is defined in Schedule 24 of the Planning Regulation 2017 as follows:
“ground level means –
(a) the level of the natural ground; or
(b) if the level of the natural ground has changed, the level as lawfully changed.”
While the expression “natural ground level” is no longer a correct technical term, the level of the “natural” ground remains relevant.
“Building height” in local government planning schemes
Many local government planning schemes incorporate the above administrative terms. In some instances, planning schemes provide further guidance with respect to the consideration of those terms, for example:
• Gold Coast City Plan 2016 includes a unique administrative term of “building height for aviation purposes” defined to mean the maximum height of the building measured to the highest projection and includes items such as antennas, aerials, chimneys and flagpoles.
• Sunshine Coast Planning Scheme 2014 includes the following “note” underneath the definition of “building height”:
“Note—Notwithstanding the definition of ground level, for the purpose of determining building height in Precinct CAL LPP-4 (Moffat Beach/Shelly Beach/Dicky Beach), ground level is the level of the land at the time the original estate was subdivided and roads created as determined by a cadastral surveyor, or if this level is not known, the natural level of the ground or probable natural level of the ground as determined by a cadastral surveyor.”
• Sunshine Coast Planning Scheme 2014 also includes the following “note” underneath the definition of “ground level”:
“Note—lawfully changed ground level is:
(a) the as constructed level of the ground in accordance with an operational works development permit; OR
(b) where a site has been filled to manage a flood hazard, a level no higher than:
(i) the level of the defined flood event (DFE) or the defined storm tide event (DSTE) for the site; or
(ii) if the DFE or DSTE have not been modelled for the area, the highest recorded flood level or storm tide inundation level for the site; or
(iii) the level determined by the Council, in all other circumstances.”
• Brisbane City Plan 2014, includes an “Editor’s note” underneath the definition of “ground level” that reads as follows:
“Editor’s note – Section 1.7.5 provides that for the purpose of the definition of ground level in Schedule 1, the level of the natural ground is deemed to have been lawfully changed if the level of the natural ground level is the prescribed level.”
It is noted for completeness, that Townsville City Plan version 2020/03 includes a definition of “building height” that is not in the terms stated in Schedule 4, column 2 of the Planning Regulation 2017. Pursuant to Section 16(3) of the Planning Act 2016, the “building height” definition prescribed by the Planning Regulation will apply instead of the “building height” definition in the planning scheme to the extent of any inconsistency.
“Ground level” in Morgan & Griffin Pty Ltd v CB (Qld) Pty Ltd & Anor
On 10 December 2021, the Planning and Environment Court published reasons for judgment in the matter of Morgan & Griffin Pty Ltd v CB (Qld) Pty Ltd & Anor [2021] QPEC 70. This case concerned the interpretation of the term “ground level” in Brisbane City Plan. The case however has broader application given that the same definition appears in identical terms in many Queensland local planning instruments.
The key question in dispute between the parties was whether fill placed on the land when an earlier building was constructed ought to be disregarded in calculating the ground level of the proposed new building. The answer to this question had consequences for whether the development application was properly code assessable or impact assessable. If building height was to be calculated from the top of the fill, the building did not exceed the prescribed building height envelope.
The definition of “ground level” was not the only aspect in dispute, the following Section 1.7.5 of City Plan 2014 was also contentious:
“1.7.5 Designated lawful change to ground level
1. For the purpose of the definition of ground level in Schedule 1, the level of the natural ground is deemed to have been lawfully changed if the level of the natural ground is the prescribed level.
2. For the purpose of the definition of prescribed level in Schedule 1, the 2002 BIMAP contours are the contour information determined by the Council.”
Brisbane City Plan 2014 contains a technical defined term of “Prescribed level” which references the Surveyors Act and BiMap contours. A review of administrative terms in other local planning instruments, suggests this is unique to Brisbane City Council. The applicant argued that the phrase “the level lawfully changed” as appears in the “ground level” definition ought to be construed together with Section 1.7.5 to result in a reading that the “prescribed level” is intended to refer to any change to natural ground level approved or that occurred prior to commencement of Brisbane City Plan 2014 or under the superseded Brisbane City Plan 2000, and that the expression “lawfully changed” applies to any change to natural ground level “after the commencement of Brisbane City Plan 2014 or under the current planning controls.”
The applicant accepted that fill was placed lawfully on the land, rather it argued that the placement of the fill did not alter the level of the “natural” ground. One aspect of the applicant’s submissions argued a distinction between changes to the “surface level” of the land resulting in a “finished ground” level but rejected that the placement of the fill could alter the level of the natural ground.
With reference to the usual principles for the construction of planning documents outlined by the Court of Appeal, His Honour Judge Everson rejected the Applicant’s argument, preferring the submissions of the Respondent and Co-Respondent that natural ground level ought not be deemed to only be lawfully changed in the event it comes within the definition of “prescribed level” (it is only one way to prove that the natural ground level has been lawfully changed). The Court saw no merit in reading the planning scheme in a way which implied restrictions which did not appear upon a plain reading and also noted that the applicant’s position left a lacuna as to the circumstances in which a lawful change to the level of the natural ground could be taken into account.
At paragraph [13] of the reasons for judgment, the Court noted that there is no definition of “natural ground” in Brisbane City Plan 2014. This is a situation shared with most other local planning instruments. The judgment records that the term “natural” is defined in the Macquarie Dictionary as “existing in or formed by nature; not artificial…”.
The Court considered that there was a clear intention in the planning scheme to juxtapose the level of the natural ground with the level of the ground which has been altered through lawful activity. The definition of “prescribed level” did not restrict the ability of an applicant to for a development approval to demonstrate in other ways that the level of the natural ground has been lawfully changed.
The effect of the decision was that the measurement of building height, by including the fill lawfully placed on the land when the existing building was constructed, was the correct measurement taking into account the ground level (with the result that development application was always code assessable).
In conclusion, determining the accurate ground level requires careful consideration and may require the assistance of a licensed surveyor as well as investigations into historical approvals and historical operational works. The case of Morgan & Griffin confirms that the expression “lawfully changed” permits a consideration of any changes to the surface of the land that occur pursuant to development approvals. The definition of “ground level” is more than the notion of “natural ground level” as it permits taking into account lawful man-made changes to the historical level of the natural ground.
Measuring ground level can be further complicated when below ground excavation has previously occurred on the site (for example, below ground basements). Issues are also likely to arise in circumstances where a change to a development approval is proposed to add additional height to an approved building. Case law from New South Wales1 suggests that in considering a change application it is appropriate to consider the existing ground levels on the site survey submitted as part of the original development application package (rather than taking existing ground level as the excavated level of the site as it is at the time).
Footnotes
1Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129, a case where a change to a development approval was sought to add a roof top terrace and access stair under a sliding skylight