Buckler and Anor v Gold Coast City Council and Anor

[2013] QPEC 48

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Buckler & Anor v Gold Coast City Council & Anor [2013] QPEC 48

PARTIES:

PATRICK BUCKLER, PATRICIA DAWN BUCKLER

(appellants)

v

GOLD COAST CITY COUNCIL

(respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

(co-respondent)  

FILE NO/S:

1856/2007

DIVISION:

Planning and Environment

PROCEEDING:

Application for final judgment

ORIGINATING COURT:

Brisbane

DELIVERED ON:

12 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2013

JUDGE:

Rackemann DCJ

ORDER:

The Court is satisfied that the change is minor. Order as per draft

CATCHWORDS:

Planning and environment – Preliminary approval overriding Planning Scheme – Change to proposal level of assessment table – Whether minor change

Sustainable Planning Act Qld (2009) s 350

Wolter Group Holdings Pty Ltd v Brisbane City Council [2012] QPEC 42

COUNSEL:

Cronin, BG for the appellants

McCracker, G for the respondent

Buckley, TC for the co-respondent

SOLICITORS:

Thomsons Lawyers for the appellants

Minter Ellison Gold Coast for the respondent

HopgoodGanim for the co-respondent

1. In this case, the issues between the parties have been resolved and they propose an order which would give a final approval in respect of a development application which sought a preliminary approval overriding the planning scheme. 

1. The proposal is to develop a sizeable area of land which has been divided for the purposes of the application into three precincts, being a north precinct, a central precinct and a southern precinct.  The development overall is for future residential development of that large lot, subject to the obtaining of relevant development permits.

1. There have been some changes to the overall layout and to some of the details of the development parameters.  It is unnecessary for me to delay upon those matters.  They have been dealt with in the affidavit material, particularly the affidavit of Mr Ransom and, in my view, comfortably within the meaning of a minor change.

1. The somewhat more difficult issue in this case is that there is now a proposed change to the level of assessment table which would be applied by reason of the preliminary approval so as to change the level of assessment in the future for reconfiguration of a lot within the southern precinct.  The proposal is to make reconfiguration to a minimum lot size of 400 square metres code assessable in the future, rather than impact assessable.

1. Under the provisions of the planning scheme as it currently exists, other parts of the subject land fall within an area in which reconfiguration to 400 square metres is code assessable.  The proposed change to the southern precinct would bring the southern precinct into line with the rest of the development insofar as the level of assessment for future reconfigurations are concerned.

1. None of the parties oppose an order being made to permit that change as a minor change, but quite properly drew my attention to the decision of Judge Jones in Wolter Group Holdings Pty Ltd v Brisbane City Council [2012] QPEC 42. That case considered the meaning of section 350(1)(d)(iii) which refers to a change that “does not change the type of development approval sought”. In the Wolter Group Holdings case, Judge Jones concluded that a change which changes the “type” of development approval sought is not limited simply to a change which would convert, for example, an application for preliminary approval into an application for a development permit.  Rather, he had regard to the substantive characteristics of the application and whether they so differed from that initially sought as to amount to a change of the type of development approval sought as a matter of substance.  I respectfully agree with that approach.

1. In the Wolter Group Holdings case, his Honour found that a change to the proposed table of development which would have converted assessable development to self assessable development constituted, in the context of that case, a materially different assessment regime and, in the circumstances, made the application for a different type of development approval, had the change been permitted .  Whether a change to a proposed table of development would constitute a change to the type of development approval sought is one which should be determined having regard to the particular context in which that change is sought to be made.  The context in this case differs from the context which applied in the Wolter Group Holdings case. 

1. Here, it is not proposed to change development from assessable development to self assessable development.  A reconfiguration of a lot will, even after the change is made, remain assessable development, albeit that the type of assessment to which it will be subject will change from impact to code.  Looking at the significance of that in the context of the particular application, it is relevant to note that the proposal itself is for development, namely residential development, which would envisage residential subdivision.

1. The proposal, as it was initially formulated, was for development in the southern precinct of a range of different residential accommodation types, including detached dwellings, duplexes, townhouses and apartments at a density of 9.55 units per hectare.  It must have been evident from anybody who was familiar with the application that what was being sought, in essence, was an approval which confirmed the general suitability of the site, including the southern precinct, for uses of that kind and that if approval was granted it could be expected that there would be subdivision of the southern precinct in order to facilitate that kind of development, subject to obtaining subsequent development permits. 

1. It would be odd if, having gone through the impact assessment process in order to obtain a preliminary approval for development of that kind in this precinct, the question of the suitability of the southern precinct for residential subdivision had to go through yet another impact assessable process.  As Mr Cronin who appeared for the developer said, it would appear likely that the failure to include reconfiguration to 400 square metre lots as code assessable in the proposed table of development was an oversight in the application process.

1. In the particular context of the subject development application, it seems to me that the change to what is proposed for the level of assessment for future applications for reconfiguration of a lot does not cause any significant departure from the substance of the application and, in particular, does not, in my view, in this circumstance, amount to change to the type of development approval sought.  In the circumstances therefore, I am satisfied that the change is a minor change.