Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council

[2011] QPEC 27

[2011] QPEC 27

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3276 of 2008

INDIGO (PALM BEACH) LAND OWNER PTY LTD

Appellant

and

GOLD COAST CITY COUNCIL

and

APGL(PALM BEACH) PTY LTD

and

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS

Respondent

Respondent

Co-Respondent

BRISBANE

..DATE 18/02/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 3, s 4, s 5, s 350

Whether deletion of six of 13 levels was a "substantially different development" for purposes of the definition of "minor change”

HIS HONOUR:  The effect of the order is to allow the appeal, and approve a changed development application for material change of use of the site on the corner on the beach side of the Gold Coast Highway at the corner of Palm Beach Avenue for a mixed use development comprising commercial areas on the ground floor and the one above, and residential apartments above that.

What is of concern to the court today is the change in the development from that which was originally presented to Council. There is a relatively unusual feature of the change presented as a minor change by all parties for the purposes of section 350 of the Sustainable Planning Act 2009 which provides the relevant test. It is a marked reduction in height of the building which was originally to have 13 levels. That has been reduced to seven, which is standard for the location for code assessable applications.

Mr Ransom's affidavit identifies the changes as the reduction in the number of storey from 13 to seven, with a resultant reduction in GFA from 6,932 sq metres to 5,468 sq metres, and a reduction in plot ratio 3.99:1 down to 3.15:1.  There's reduction in the number of residential units from 57, containing 97 bedrooms, to 52 containing 81 bedrooms.

There is a reduction in communal open space as a result of the changes from 428 sq metres to 330 sq metres, and a reduction in setback distance to the western boundary of the subject site, where there will now be a 7.5 metre average set back as opposed to 9.5 metres as was proposed originally.

As Mr Ransom says in his paragraph 20, the land uses intended for the development site are not altered, nor is the GFA associated with the non-residential tenancies.

There's no change in maximum site coverage, nor in setbacks from the roads in question.

There's no change to vehicular access points or the extent of car parking allowed or any change to ground level landscaping.

Mr Ransom expresses his view that this is a minor change by reference to the factors to be found in the statutory guideline 06/2009 issued on the 11th of December, 2009.  That guideline has received a certain amount judicial recognition in the court.  Running through the features enumerated there, this does not present as a substantially different development.  I refer to factors in the guideline relating to any new use with different or additional impacts, additional land being brought in, changes to the ability of the proposal to operate as intended or to remove a component "that is integral to the operation of the development".

There's nothing of relevance in respect of impacts on traffic flow and the transport network, except by way of a slight reduction - which contrasts with the guidelines concerned with any increase in traffic.  There are no new impacts being produced, there's no increase in severity of known impacts.
There's no removal of any incentive or offset component that would have balanced some negative impact of the development.  Any impacts on infrastructure provision, location or demand, are simply going to be by way of reducing them.

The dot point which has not been covered in the above discussion suggests that a change may result in a substantially different development if it "dramatically changes the built form in terms of scale, bulk and appearance."

Mr Ransom opines that there's no dramatic change.  Minds may differ about that.  At street level, and the seven levels from street level, there is no appreciable change at all, but some may take the view that the removal of an additional six levels is a dramatic change, albeit by way of reduction, which has obvious benefits in producing a more open amenity in a strategic location quite close to the beach.

There is a tradition in the court of accepting as minor change changes that reduce the impact of developments.  It's clear if one reads the guidelines that the changes which cause concern are those which increase the bulk and scale of developments or increase their impacts.

I think it is appropriate to construe and apply section 350 in that way, particularly if one bears in mind the injunctions at the beginning of the Act in sections 3, 4, and 5 as to how the court and other entities performing functions For the purpose of the Act ought to act to advance its purposes. It would be highly inconvenient if the court refused to accept this change as a minor one for section 350 purposes. That would force the parties to persist with an appeal that none of them wish to persist with. The consequence would seem to be that the appeal must fail and the developer be forced to start all over again. There’s no conceivable advantage in that scenario.

Summarising, what the court decides today is that in this context, where essentially what is happening is a reduction in the number of floors of residential units to be created, the reduction in scale of the proposal and its impacts, consistently with the traditional approach, can be accepted as a minor change, even if from the point of view of building height one could understand the change being characterised as dramatic.

The order is as per initialled draft. 

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