Hayday Pty Ltd v Brisbane City Council

[2005] QPEC 50

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hayday Pty Ltd v Brisbane City Council [2005] QPEC 050

PARTIES:

HAYDAY PTY LTD (ABN 64 010 652 703)
Applicant
v
BRISBANE CITY COUNCIL
Respondent

FILE NO/S:

BD 1138/2005

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

1 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2005

JUDGE:

Alan Wilson SC,DCJ

ORDER:

Application dismissed

CATCHWORDS:

PLANNING – PLANNING LAW – application for change of conditions – changes involve building work – whether changes also involve material change of use – Integrated Plannning Act 1997, s 3.5.33 – whether changes involve assessable development and are excluded from the operation of the section

Integrated Planning Act 1997

Brisbane City Plan 2000

Cases considered:
Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2003] QPELR 92
Maroochy Shire Council v Barnes (2001) QPELR 475
Martin v Whitsunday Shire Council (2001) QPELR 348
Rhema Management Services Pty Ltd v Noosa Shire Council (2000) QPELR 15
Rosebay Developments Pty Ltd v Bowen Shire Council (2001) QPELR 340

COUNSEL:

Mr W Cochrane for Applicant
Mr M D Hinson SC for the Respondent

SOLICITORS:

Gail Malone & Associates for the Applicant
Brisbane City Legal Practice for the Respondent

1. This application concerns a home units building the applicant is constructing at 33-35 Griffith Street, New Farm, for which it has a building permit, but which it now wishes to change by an increase in height, the addition of a sixth storey, and an increase of the gross floor area.  The issue is whether the changes give rise to assessable development as that term is used in s 3.5.33 of the Integrated Planning Act 1997 (IPA).

1. When the development was first mooted Council refused to issue a development permit for a Material Change of Use for it, or an associated preliminary approval for building work.  The applicant appealed to this Court and it appears the matter was resolved by negotiation between the parties.  In any event, an Order was made on 22 August 2003 allowing the appeal and approving the application subject to conditions in a development approval package attached to the Order.  Those conditions required that the development be carried out … generally in accordance with the approved drawing(s) and/or document(s) (Condition 2).  The approved plan, annexed to those conditions, included drawings numbered TP08E, TP09E, and TP010E which showed, in particular, the roof deck and the north-west and south-east elevations of the building, including its roof line.

1. The applicant now seeks to modify that approval so as to provide lightweight infill on the roof deck and further covered living space for Unit 5 in accordance with new plans TP08F, TP09F and TP10F which:

(a)     require additional building work over and above that contemplated in the original conditions;

(b)     increase the maximum height of the building from 24.6m AHD to 26.47m;

(c)     increase the gross floor area.

1. Affidavits from Ms Anderson, the architect who drew the changes and associated plans, and from a director of the applicant company, Mr Favell, show that in the overall scheme of things the appearance of the building is not greatly altered.  As those affidavits also show, the applicant’s desire to make these alterations springs from Council’s recent approval of proposed new buildings nearby, including one with seven storeys and a maximum height of 27.75m and a GFA ratio of 1:1.2 at 166-170 Oxlade Drive.

1. The applicant raises as a preliminary point the contention that these alterations may be dealt with as mere changes in the conditions attached to the applicant’s development permit, to which   s 3.5.33 applies.  It provides:

3.5.33 Request to change or cancel conditions

(1)      This section applies if—

(a)a person wants to change or cancel a condition; and

(b)no assessable development would arise from the change or cancellation.

(2)The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition.

(3)If the person is not the owner of the land to which the approval attaches, the request must contain the owner’s consent.

(3A)If the development approval is for building work or operational work for the supply of community infrastructureon land designated for the community infrastructure—

(a)subsection (1) applies only to a person who intends to supply, or is supplying, the infrastructure; and (b) subsection (3) does not apply.

(4)If the entity has a form for the request, the request must be in the form and be accompanied by the fee for the request—

(a)     if the entity is a local government—set by a resolution

of the local government; or

(b)if the assessment manager is another public sector entity—the fee prescribed under a regulation under this or another Act.

(5)The entity must decide the request within 20 business days after receiving the request.

(6)The entity and the person may agree to extend the period within which the entity must decide the request.

(7)To the extent relevant, the entity must assess and decide the request having regard to—

(a)the matters the entity would have regard to if the request were a development application; and

(b)     if submissions were made about the application under

which the condition was originally imposed—the submissions.

(7A)Also, if a building referral agency gave advice about an aspect of the application the subject of the request, the entity must have regard to the opinion of the agency about the change before deciding the request.

(8)The entity must give the person written notice of its decision.

(9)If the entity is a concurrence agency or the court, the entity must give the assessment manager written notice of any change or cancellation.

(10)The changed condition or cancellation takes effect from the day the notice is given to the person.

(11)Subsections (5) and (6) do not apply if the entity is the court.

1. The plain requirement of s 3.5.33(1)(b) is that no assessable development arises from the change.  The applicant says that where the changes and associated works do not involve any new use other than that arising from and associated with the purpose shown in the original development approval (in other words, where all that is sought is a variation in the nature and extent of the work originally approved) then there is no true “assessable development”.  At the outset it should be remarked that nothing in the section suggests it is, for example, confined to assessable development of the same kind as that originally approved and there is no necessary implication to be drawn from it to that effect.

1. It is also clear, however, that an approval under the section simply varies rights which remain legally sourced to the original development permit, and does not give rise to new development rights taking independent effect from the later date of approval[1].  Plainly, there is a distinction to be drawn between changes of that kind and those which would require an entirely new development permit.  The distinction does no more than highlight the purpose and intent of this section: to provide a process for changing or cancelling a condition in an identified circumstance: namely, where no assessable development arises[2].  The section does not provide a mechanism under which assessable development can be authorised without a development permit.

   [1]Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2003] QPELR 92.

   [2]     If a change or cancellation does not give rise to any development, no development permit is required: IPA s 3.1.4(2); if, however, assessable development arises, s 3.5.33 does not apply and that assessable development requires a development permit under s 3.1.4(1).

1. Building work is assessable development, as that term is defined in IPA, Sch 10. It is assessable under Sch 8, Pt 1 against the Standard Building Regulation: Table 1, Item 1.  It is also assessable under Brisbane City Plan: Ch 4, p 114.  When building work different from that originally approved is now proposed it is difficult to see how s 3.5.33(1)(b) can be read as anything other than a bar to the application of the balance of the section.

1. Even if it is not so construed[3] or has a meaning ascribed to it which focuses on the nature and degree of changes rather than the question whether building work is actually required[4], the alterations here must be considered in the context of the legislation and the applicable Planning Scheme.  The land is in the Medium Density Living Precinct and within the confines of the New Farm and Teneriffe Hill Local Plan, which contains levels of assessment tables under which a multi-unit dwelling is impact assessable (generally appropriate) where it complies with building heights and gross floor areas in the Local Plan Codes, but impact assessable (generally inappropriate) where it does not so comply.  The original development, as approved, complied with the Acceptable Solutions in the Codes but, if the conditions are changed in the manner proposed, will no longer do so.  The effect is to change intensity and scale in a way which the Local Plan treats as material by changing the level of assessment from ‘generally appropriate’ to ‘generally inappropriate’.

   [3]As appears to have occurred in Martin v Whitsunday Shire Council (2001) QPELR 348.

   [4]See Rhema Management Services Pty Ltd v Noosa Shire Council (2000) QPELR 15.

1. For the former, assessment will occur under the Local Plan Code but for the latter, because it involves development not specifically envisaged in the area, the appropriateness of the proposal would depend on location, design and impacts.

1. The materiality of the changes in intensity or scale of use is to be judged by reference to IPA, and these local planning instruments[5].  IPA s 1.3.5 defines a ‘material change of use’ to include ‘a material change in the intensity or scale of the use’.  While not visually dramatic, the proposed changes cannot, for the reasons set out, be described as anything other than significant and, for that reason, material.  Hence even if the tests applied in Martin (supra) or Rosebay Developments Pty Ltd vs Bowen Shire Council (2001) QPELR 340 are adopted, the changes are such as to constitute assessable development.

   [5]Maroochy Shire Council v Barnes (2001) QPELR 475, at 482.