Abacus Funds Management Pty Ltd v Sunshine Coast Regional Council

[2010] QPEC 141

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Abacus Funds Management Pty Ltd v Sunshine Coast Regional Council  [2010] QPEC 141

PARTIES:

ABACUS FUNDS MANAGEMENT PTY LTD
(appellants)

V

SUNSHINE COAST REGIONAL COUNCIL
(respondent)

And

JANE BECK

(co-respondent by election)

FILE NO/S:

BD 2537 of 2010

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

3 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2010

JUDGE:

Rackemann DCJ

ORDER:

That the change to the application is ‘minor’ within the meaning of s 4.1.52(2)(b) of the Integrated Planning Act (1997).

CATCHWORDS:

PLANNING AND ENVIRONMENT – Application to change proposal to include further land to be used for access – whether minor – consideration of guideline

SOLICITORS:

Connor O’Meara for the appellant

Sunshine Coast Regional Council Legal Services for the respondent

The appellant applied for permission for a material change of use to facilitate the development of multiple dwellings on land which is part of the Twin Waters resort on the Sunshine Coast.  It wishes to make a change to the development application to be considered by the Court in the appeal.

Section 4.1.52 of the Integrated Planning Act (1997) (“IPA”), under which this appeal is to be considered, requires that the Court not consider a change unless the change is only a minor change. By reason of section 821 of the Sustainable Planning Act (2009) (“SPA”) the reference to a "minor change" in section 4.1.52(2)(b) of the IPA is to be read as if it was a reference to a minor change as defined under the SPA.

The SPA defines minor change in section 350, in part, as follows:

"A minor change in relation to an application, is any of the following changes to the application -

(d)         a change that -

(1)      does not result in a substantially different development; and

(2) does not require the application to be referred to any additional referral agencies;

(3)      does not change the type of development approval sought;

(4) does not require impact assessment for any part of  the changed application, if the original application did not involve impact assessment."

In this case the proposed change is to include land which will provide access from the proposed development to the road system.  It is a relatively short stretch of land which already forms the access driveway to the car park of the resort.  It is not intended that its function would be any different by reason of the proposal, save that it will now  also give access to the proposed development, rather than just the car park of the resort.

The land in question is the subject of an easement.  The owner of the land the subject of the easement consents to the land being included in the application.  The inclusion of that land would not result in there being any additional adjoining owners which ought to be consulted, nor would it involve any further impacts which might need to be considered, in addition to those which would have been obvious from the proposal in its initial form.

In determining whether a development constitutes a substantially different form of development it is appropriate to have regard to the guidelines made by the Chief Executive under section 760 of the SPA.

Those guidelines, in part, state that a change may result in a substantially different development if it results in the application applying to any new parcel of land.  Certainly this change would result in the application applying to a new parcel of land.  However, as I pointed out in Heritage Properties v. Redland City Council [2010] 175 LGERA 146 (at 149):

"It may be noted that the list provided in the guideline is a list of those changes which "may" result in a substantially different development.  It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different."

In this case, for the reasons which I have already given, I am satisfied that the proposed change to the application to include the land the subject of the easement would not, in fact, result in a substantially different form of development, notwithstanding that it would lead to the application applying to a new parcel of land.

Accordingly, I am satisfied that the change is only a minor change for the purposes of the legislative provisions.