Arnold & Arnold Pty Ltd v Gold Coast City Council
[2006] QPEC 75
•29/05/2006
[2006] QPEC 075
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
JUDGE ROBIN QC
No 580 of 2006
| ARNOLD & ARNOLD PTY LTD TRADING AS | Appellants |
| ARNOLD DEVELOPMENT CONSULTANTS, and | |
| GOLD COAST CITY COUNCIL | Respondent |
BRISBANE
..DATE 29/05/2006
ORDER
CATCHWORDS: Integrated Planning Act 1997 s 4.1.52(2)(b) - "minor change" where reduction from 10 to 9 in sensitive site adjacent to a national park and straddling a watercourse, where urban footprint was now confined to one side of the watercourse, and where five eighths, rather than only one eighth of the site would be protected by a vegetation covenant.
HIS HONOUR: The Court makes an order in terms of the
initialled draft.
Given the extent to which the parties have resolved matters,
the significant aspect of it is the Court's being
satisfied, for purposes of section 4.1.52(2)(b) of the
Integrated Planning Act of 1997, that a change made to the
appellant's proposal is a minor change. My approach has
always been that the Court has a public duty to be genuinely
satisfied, rather than going along with common ground reached
by the parties, in this instance the developer and the local
government, there being no submitter involved in the
developer's appeal against the Council's rejection of the
development application.
Mr Ure for the appellants has referred me to Grant v. Pine
Rivers Shire Council (2005) QPEC 081 in which his Honour Judge
Wilson SC collects a number of the authorities regarding what
is a minor change, or, to use the language of the repealed
legislation, a change or modification "of a minor nature" (see
section 4.15(2)(a) and 4.15(3) of the Local Government
(Planning and Environment) Act 1990. My impression is that
applications to the Court to regard changes as "minor change" have a high record of success. That is no doubt explicable on the basis that as time passes and further consideration is given to development proposals, it is very likely that the possibility of changes which are beneficial in relevant respects will be identified. Developers may come to accept that most of what they wished to achieve can be achieved, by limited concessions or redesigning.
It should not be thought that the Court's acceptance of
changes as minor is automatic or any kind of formality. An
unsurprising example of the Court's declining to characterise
a change under the repealed legislation as minor is Judge
Rackemann's decision in Heilbronn & Partners v. Gold Coast City Council [2005] QPELR 386. There are no equivalent
difficulties here. The development site is a large one of 85,854 square metres west of Nerang which presently accommodates one residence which is to be demolished. On 31 March this year Judge Rackemann accepted as minor change the differences between the plan in Exhibit MGA01 to Mr Arnold's affidavit read on that day, and Exhibit MGA06.
It is accepted that the Court's task today is to make
comparisons with MGA01, the original proposal, rather than with the revised one. There shouldn't be any room in this context for an incremental process of change which would compare each proposal plan with its immediate predecessor where there had been a series of changes. The new plan is Exhibit 1. It is in every sense an improvement on the original proposal, particularly in respect of the reduction of the urban footprint.
Originally some 10,915 square metres of the site were to be
protected by means of a vegetation covenant, particularly
important on the western boundary where the site adjoins a
national park. The area now to be protected in that way is in
excess of 54,000 square metres. The number of residential
allotments is reduced from ten to nine; in each allotment, a
building envelope is indicated. The environmental
sensitivities of the proposal had much to do with a
watercourse traversing the property roughly through the middle
of it. For the first time a design has been arrived at which
will have urban development confined to the southern side of
the watercourse. Another new development is the removal of a
proposal for a shared driveway giving access to a proposed lot
which would otherwise have been landlocked.
It is simple commonsense that in a context such as the present
changes which mitigate and/or confine the impacts of
development should be regarded as minor. They are not going
to provoke submissions which would not have been generated by
the original proposal. The assumption has to be made that
hypothetical submitters are reasonable people who are not
going to submit on a capricious basis, or one which can't be
sensibly articulated.
Mr Ure has informed the Court that his clients have agreed
with the Council on the important components of the conditions
package which it is now appropriate to prepare, given the
Council's acceptance that the development application ought to
be approved subject to appropriate conditions. The aspects Mr
Ure has mentioned include fire management, vegetation
management and geotechnical aspects. He has tendered as
Exhibit 2 the condition already formulated in relation to
effluent disposal, which is of special importance given the
watercourse aspect.
The Court is comfortably satisfied that the IPA provision I
mentioned at the outset is satisfied and that the order
dependent on it ought to be made.
The appeal is adjourned to 28 June 2006 when it is expected
that the conditions package will be ready.
(Mr Everson, for the Council, stated that its hydraulic/effluent concerns extend to heart of the development area, which has been quarried with potential adverse consequences for the watercourse from runoff, etc; importation of appropriate fill will alleviate such concerns. Also that the deleted shared driveway was opposed for safety reasons to do with sightlines. At least one other shared driveway remains. Experience in the courts suggests shared driveways have much potential to cause trouble, that it is an improvement to do away with even one. See Averono v Mbuzi [2005] QSC 006.)
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