Butler v Kingaroy Shire Council

[2006] QPEC 93

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Butler v Kingaroy Shire Council [2006] QPEC 093

PARTIES:

FREDERICK DAVID BUTLER

Appellant

v

KINGAROY SHIRE COUNCIL

Respondent

FILE NO:

BD 2790 OF 2005

PROCEEDING:

Application under s 4.1.52 of Integrated Planning Act 1997

DELIVERED ON:

25 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2006

JUDGE:

Judge Brabazon QC

ORDER:

Application Dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATION – AMENDMENT TO PROPOSAL – MINOR CHANGE – Integrated Planning Act1997, Section 4.1.52.

COUNSEL:

Mr J Haydon for the Appellant

Mr S Ure for the Respondent

SOLICITORS:

Irish Bentley, Lawyers for the Appellant

King & Company, Solicitors for the Respondent

The Issue

1. Mr Butler made an application to the Kingaroy Shire Council, to develop a project on a block of rural land.  The Council refused his application.

1. He appealed to this Court, against that refusal.  He then notified the Council of an amendment to his application.  He says that this Court should be able to consider the amended application.  The Council says that the Court has no power to do so.

1. The dispute centres on a requirement of s 4.1.52 of the Integrated Planning Act [1997].  The provision which applies here is this:

“…If the appellant is the applicant for a development application, the Court must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”

1. So, the question is this – is the change only a minor one, or not?

The Application

1. In his application on September 2004, Mr Butler described his proposal as a “wine tourism facility and community management scheme sub-division”.  The land was 43.62 hectares, in the Rural A Zone.  The application was also one to reconfigure a lot.  The nature of the reconfiguration was described as “sub-division in a community management scheme” which would give rise to 74 lots plus common property.

1. The proposal was described at greater length in a report dated June 2004.  For present purposes, the key features of the report are these:

Para 1

“…The proposed development while a new concept for the South Burnett has successfully been established in other wine producing and vineyard areas of Australia …the proposal reinforces the strategic plan by keeping the land in rural production.  The establishment of vineyards is capital and labour intensive.  It is proposed to maximise this investment with the establishment of a cellar door, restaurant/function room, conference centre, an outdoor sound shell, a three hole golf course and tennis courts.  It is proposed to conduct the use under a community management scheme with a number of owners with the key features being established in the communal area….”

Para 1.1

“Application is made being a material change of use to establish a vineyard, cellar door, restaurant, conference centre, sporting facilities and sound shell in stages; and reconfiguring of a lot in 74 lots in a community management scheme in four stages in accordance with s 3.2.1 of IPA.  The development application is subject to impact assessment.”

Para 2

“…Once the vineyards are established it is proposed to create lots in a community management scheme.  An agreement will be put in place with the body corporate and the lot owners which will require a percentage of their land to be grown for grapes and allows access by the body corporate manager to the vines for maintenance and for harvesting.  The management contract or agreement will also form part of a caveat which will pass on to all future land owners of each lot.

The part of the lots not used for vineyards or tree crops will be available for the siting of a house. …It is proposed to use macadamia nut trees and olives as a theme as well as aiding in the agricultural production of tree crops for the body corporate.  While no land use conflicts are considered likely (given the majority of future lot owners will be absentee owners) the landscaping will assist providing a buffer to future drilling houses and adjoining agricultural activities.”

1. The proposal is illustrated by a plan at page 14 of Mr Taylor’s affidavit.  The average lot size is 4,000 metres square.  There are 74 lots, and common areas, in what looks like a sub-division plan.  Shading shows where the vines will be planted, on a part of each lot.

1. The application was notified to the public, by advertisement and signs on the land.  Mr Butler then asked Council to defer consideration of his application.  On 11 May 2005 he provided a revised site plan with several modifications.

●           The proposed lots were reduced from 74 to 73.

●A greater area of common property was provided along the southern and western boundaries.

●Tree crop buffers were removed from along the road frontages.

●The future sound shell was relocated to near the southern boundary.

●The internal layout was amended to accommodate the above changes.

1. The amended application can be seen in the plan at Appendix 2 to Mr Ovenden’s affidavit.  It was given to Council on 11 May 2005.

1. Council decided that such changes would not adversely affect the nature of the application, so there was no need for any more advertisement.  It is common ground here that Council was right to proceed to the assessment of the application.  That is the form of the application that was refused, on 31 May 2005.

1. Then, on 21 July 2006, Mr Butler’s solicitors gave notice of a further amendment to the application to the solicitors for the Council.  The solicitor’s letter attached a site plan, and particulars of the amended application. 

1. Mr Butler filed his appeal against that refusal on 28 July 2005.

The Changes

1. The new site plan appears at page 41 of Mr Taylor’s affidavit.  It is an architect’s sketch, rather than a draftsman’s plan.  It shows a much more intense planting of crops, said to be 56% of the site.  (The former plan showed grapes on 14.5% of the land).  Rather than a plan of sub-division, it shows “two bed villas approximately 100 square metres each in 18 buildings”.  There are a total of 55 villas.  The sketch plan shows that they are scattered about the land in groups of 3.  There is nothing to show any sub-division of the land.

1. The particulars of the amended application, relevantly, say this:

“…For ease of reference the amended development is described as a vineyard and a tourist facility.  The villas will be integrated into the vineyard because of the use of the contours of the land and their placement and design…. The amended proposal will be a working vineyard (rural production) with the added tourist facilities. … The town of Kingaroy will benefit from the broadening of the available tourist facilities.  The wine industry … has made a good start but more wine industry development is needed to be more attractive to tourists from South East Queensland including day trippers.  Overnight visits need to be encouraged and more accommodation options are required. … More vineyards are needed and more visitors are required to build up the economy. … Wine and tourism are interrelated. … The amended proposal makes the link between wine and tourism. … There is a need for more accommodation.  The attraction of the amended proposal is that it includes the two bedroom villas in the vineyard thereby adding to the tourist experience.  The villas will add a new dimension to the accommodation market available in Kingaroy.  … An environment engineering approach is proposed.  The project will be managed as one unit so that water collected from the roofs and the waste water will be used collectively for the whole development (for example, treated waste water will be used to trickle irrigate the vines).  A water management plan will be developed. … The main building will include a reception area for guests checking in and checking out of the villas.  It will also include the ability for guests to have meals provided.  As the market develops there will be an opportunity to cater for conferences and seminars by offering accommodation and facilities in the main building. … Visitors to the cellar door will also have the opportunity of dining.  The cellar door will be a tourist feature and be part of a wine trail for the South Burnett. …. When the Planning and Environment Court comes to consider conditions the framework will be able to be put into place so that future applications for operation, works and building approval will follow the theme set by the material change of use approval.  The development may be carried out in stages.  Titling will be considered as part of the staging process. … One essential aim is to increase the number of short term accommodation options available in the area. … A significant proportion of the proposed development is a long term sustainable and productive agricultural enterprise and use of the subject land but has the added advantage of developing a tourist element for day trippers and overnight stays and will also include regular weekend visitors. …”

1. It is apparent from the particulars that several changes have been made to the proposal which was refused.  No longer will there be a sub-division with a community titles scheme.  The proposed 73 individual houses are to be replaced with 55 villas, in groups of three.  Absentee land owners are to be replaced with tourists.

1. Mr Butler has sworn a further short affidavit.  He says this:

“The intention is to establish a wine tourism project on the land the subject of the appeal.  This includes accommodation.  The development concept remains a wine tourism project with accommodation in its amended form.

A sub-division using a community management scheme is still proposed.  There will be fewer lots in the community management scheme than originally proposed.  The lot owners own the vineyard through the body corporate.  Qualified people will be engaged to run the vineyard. …

The accommodation was to be available for use as holiday homes and to be available for bed and breakfast type renting as part of the wine tourism project.  Some owners may choose to live on site.  The accommodation concept has not changed. …”

1. Any development application, or approval by Council, is to be construed objectively.  That is to say, its meaning is that conveyed to the ordinary reader.  The subjective intentions of an applicant, (or the Council, for that matter) are beside the point, and cannot be taken into account.

1. S 4.1.52 speaks about “only a minor change”. That deceptively simple expression has given rise to some difficulties in application. Mr Hayden’s very helpful collection of authorities on the point reveals that there are at least 17 decisions of this court. Each depends on its own facts. Two influential circumstances are identifiable in the cases. Are the changes likely to make the proposal more acceptable, or beneficial, to those who have objected? Are the changes such that they would be likely to cause a person to make an objection to the proposal, if the circumstances allowed? It can also be accepted that the court can often be generous in considering an application for a change.

1. In this case, there have been a number of objections by submitters.  Ms P A Jensen, the owner of a neighbouring property, is one of them.  As she now puts it:

“I am of the opinion that the new proposal is very different from what was originally proposed by the appellant.  The developer no longer appears to be designed to accommodate residents that will live on site and operate the vineyard and is now aimed at accommodating people who are visiting the area for a short time.

I am still concerned about the effect that this new development will have on my property. …. It is difficult to predict whether tourists will be more troubled by the operations being carried out on our property than permanent residents.  I am concerned that there is the potential for tourists to be less understanding of our operations than residents who live permanently on site.  One minor benefit that I can see from the site being put to a tourist use is that it is unlikely that domestic pets will be accommodated on site, thereby lessening the potential for domestic pets to cause problems on my property. …”

1. In this case, the changes are substantial.  They are not necessarily beneficial.  The emphasis on tourism could provoke more objections.  By itself, the change from a community title sub-division of 73 lots to 55 villas is more than a minor change.  From a town planning point of view, the use will not be for dwelling houses on sub-divided land, but rather as a “host farm” which is defined in the transitional planning scheme:

“Any land, building or other structure or any part thereof used or intended for use as tourist accommodation in conjunction with use for agricultural, animal husbandry or forestry purposes. …”

That use means that an impact assessable application is required. 

Sewage

1. The threshold for an Environmentally Relevant Activity, with respect to sewage, is a plant to treat at least 21 “equivalent persons”.  See the Environmental Protection Reg 1998, Schedule 1, Item 15.

1. So far, Mr Butler’s project has been said not to amount to an ERA.  See the letter from The Planning Place to Council, dated 18 January 2005 (Ex GJ03).  That letter asserts that the restaurant, holding up to 75 persons, will not exceed 15 equivalent persons.  That may well be so.  It also appears to rest on the assumption that the sewage from the individual houses is not included.

1. If the present proposal for 55 villas is taken into account, then the position is different.  As the particulars say, the project and its waste water will have to be managed as one unit.  That would require an on-site treatment system with a capacity of 21 or more equivalent persons (an assertion by Mr Ovenden which was not contradicted).

1. That charge means that the EPA will become a concurrence agency.  It also means that a further material change of use will require Council’s approval.  (See the definitions of a “MCU” and “development” at 1.3.2(e) and 1.3.5 of IPA, including “the start of a new ERA on premises”; and Schedule 8 Part 1 Table 2 of IPA).

1. It was suggested that any such approval could be obtained later, as part of an application to carry out operational works.  That does not seem right as a MCU is involved.  It seems that an application to Council in Part G should be made.  In any event, another change will be made, to the earlier application.

Conclusion

1. The change to 55 villas, the emphasis on tourists, the absence of subdivision, and the need to seek approval for an ERA, mean that the changes just cannot be said to be “only minor”.

1. The application is dismissed.