ASG Queensland (Indooroopilly) Pty Ltd v Brisbane City Council

[2016] QPEC 16

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

ASG Queensland (Indooroopilly) Pty Ltd v Brisbane City Council [2016] QPEC 16

PARTIES:

ASG QUEENSLAND (INDOOROOPILLY) PTY LTD
(Applicant)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

2043/15

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2016

JUDGE:

Rackemann DCJ

ORDER:

The court is satisfied that the proposed change is a permissible change and it is appropriate to grant that change.

CATCHWORDS:

PLANNING AND ENVIRONMENT – PERMISSIBLE CHANGE – submitter/appellants in previous appeal not notified – where court will carefully scrutinize the change – whether change likely to provoke an objection relating to car parking or otherwise

COUNSEL:

D P Kevin for the applicant

J A Langham for the respondent

SOLICITORS:

King & Company solicitors for the applicant
Brisbane City Legal Practice for the respondent

1. This is an application for a permissible change to a development approval given by the Court.  The approval was granted in the context of a submitter appeal.  The submitters who were parties to that appeal have not been given notice of this application.  There is nothing in the Act which requires them to be made parties, however, it is often the case, in such circumstances, that notice would be given. 

1. The definition of a permissible change in section 367 requires consideration, relevantly, of whether the approval as sought to be changed, would be a substantially different development and whether it would be likely to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed.

1. The changes to the development have been set out in the material and in submissions.  Two of the important changes for consideration relate to the change in the number of units (and the configuration of those units) and the change to the car parking arrangements.  In short, what has happened is that the person carrying out the development has discovered that sub-surface conditions are difficult, such as to create economic problems for the development of one of the basement car parking levels.  One of those levels is to be deleted and there are to be changes to the car parking layout otherwise.  The result is that the number of car parks to be provided will be 178 if the change is allowed. This compares with 197 car parks at the time of the original approval and 201 car parks at the time of an earlier permissible change which was made with respect to the development.

1. The reduction in the number of car parks obviously needs to be considered when considering the likelihood of a person making a properly made submission objecting to the proposed change of the circumstances allowed.  In circumstances like this, where the development was controversial and where those who were parties to an earlier case have not been given notification of the proposed change, the Court will obviously scrutinise carefully the changes to ensure it can be comfortably satisfied in relation to the criterion in section 367. It is obviously easier for the Court to come to the conclusion that that criterion is satisfied where relevant people have been consulted and indicated a non-objection than where they have not.

1. I do note, in this case, that the submissions that were before the council when the development application was made included submissions in relation to the impact of the proposal in terms of car parking demand.  It is apparent that this is an area where there is significant demand for on-street car parking.  So the topic is one which may draw submissions depending on the circumstances.  The proposed reduction in the number of car parks, however, has to be seen in the context of the proposed change to the number and configuration of the units.  The number of units is to be reduced to 128.  This compares to 148 in the proposal as initially approved, and 136 units in the proposal as it was changed pursuant to an earlier permissible change application.

1. The configuration of the units is also to change in an endeavour to meet what is the perceived market. That change is to decrease the number of one bedroom units and to increase the number of two and three bedroom units.  It should be noted that there is one four bedroom unit which was added at the time of the previous permissible change.  Because of the change of configuration, the total number of bedrooms is to increase to 232, compared with 217 when the original approval was given and when the previous permissible change was made.

1. As the applicant’s traffic engineer deposes, and as is reflected in the council’s current policy on car parking requirements, the car parking demand which is generated by a particular unit does rise somewhat as the number of bedrooms increase, but the increase is not a lineal increase.  That is, a two bedroom unit for example does not produce twice the car parking demand of a one bedroom unit.  The current policy has a car parking requirement of 0.9 resident spaces and 0.15 visitor spaces per one bedroom unit, but 1.1 resident spaces and 0.15 business visitor spaces per two bedroom unit.  The consequence is that notwithstanding the increase in the number of bedrooms, the reduction in the total number of units means that there would not be any significant impact on car parking demand as a result of the change, when one compares it to the original approval.

1. The table which is exhibited to the traffic engineer’s report shows that the proposal as approved, had in excess of 27 car parks relative to the council’s current car parking requirements.  The 2014 permissible change increased that surplus and the net effect of the changes here would be to reduce that surplus down to 23, which is insignificantly different to the 27, and is pretty much in the same order of surplus.  Similarly, when one compares the provision to the car parking policy in force at the time of the original approval, there would remain an excess, although less of an excess than was previously the case.

1. In the circumstances, whilst those who were concerned about the impact of the proposal on car parking might still be concerned about it, it is not likely that the change which is proposed would cause a person to make a properly made submission about the change on the car parking grounds. 

1. Having considered the changes otherwise, I do not consider that any of the changes that are proposal would likely provoke a submission objecting to the proposed change if the circumstances allowed.  I am satisfied that the change would not produce a substantially different development.  I am satisfied that the proposed changes is a permissible change, and it would be appropriate to grant that change.