Corfield Brothers Development Pty Ltd v Fitzroy Shire Council

[2008] QPEC 86

[2008] QPEC 86

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 741 of 2008

CORFIELD BROTHERS DEVELOPMENT PTY LTD (ACN 114 468 987)	Appellant
and
FITZROY SHIRE COUNCIL	Respondent

BRISBANE

..DATE 22/10/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s4.1.52(2)(b), minor change where proposal for 56 townhouses in 28 buildings becomes one for 46 in 23.

HIS HONOUR:  The appellant developer and the respondent

Council, now the Rockhampton Regional Council, in lieu of the

former Fitzroy Shire Council, have come to terms in this

applicant appeal.

The development proposal was for 56 townhouses in 28 separate

buildings in the town of Gracemere.  The site is in Lillypilly

Avenue although the actual development is to be set some

considerable distance back separated by what is described on

some plans as an "Overland flow path."

There were adverse submissions from residents of Donovan

Crescent whose properties backed on to the proposed

development.  Those have been summarised in discussions

between the Court and Bar table as expressing concerns that

the development was out of character with that in Donovan

Crescent, essentially too intense, and, to adopt my

expression, barracks-like.  Nonetheless, the development

application found favour with the Council planning officers

before being rejected by the then Council.

The changes subsequently made reduce the intensity of the

development and to that extent its visual impact.  The number

of units is reduced to 46 in 23 buildings.  There is variation

in the orientation of them to an extent which has been

described as, in part, attributable to dealing with the impact

of the hot western sun more effectively for the future

residents.  The buildings are no longer in the originally

proposed serried ranks, but, speaking generally, in smaller

aggregations of  only a couple, or indeed on their own, in the

external two rows of the three which constitute the

development.  Openings are thus created which give a more open

appearance to the whole.  The Court's given leave to read and

file an affidavit of the architect Jared Michael Poole, which

shows the changes that have been made. 

None of the adverse submitters elected to join in the appeal. 

They would, presumably, welcome the changes, assuming that the

proposal is to go ahead at all.  The risk to adverse

submitters of staying out of an appeal such as the present is

that the local government may change their attitude to the

proposal as has happened here.  There's nothing the Court can

do about that.

The draft order handed up is deficient in not reciting the

Court's satisfaction with issues to do with section

4.1.52(2)(b) of the Integrated Planning Act of 1997. That

omission should be fixed up.  So, I've added to the customary

declarations of satisfaction in relation to public

notification and advice of the institution of the appeal,

a third preamble paragraph in these terms, "And the Court

being satisfied that the changes to the development

application described in the affidavit of Jared Michael Poole

sworn 21 October 2008 read and filed by leave today are minor

changes within section 4.1.52(2)(b) of the Integrated Planning

Act 1997."   It is inconceivable that the changed application

would have provoked any adverse submission which the publicly

notified one did not.  In context, the change must be

accounted "minor".  With that alteration made to the draft

there is an order in terms of the initialled draft which

incorporates new plans and relevant development conditions.

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