Jack's Property Development Pty Ltd v Ipswich City Council

[2010] QPEC 25

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Jack’s Property Development Pty Ltd v Ipswich City Council [2010] QPEC 25

PARTIES:

JACK’S PROPERTY DEVELOPMENT PTY LTD
(Appellant)

v

IPSWICH CITY COUNCIL
(Respondent)

FILE NO/S:

BD 1497 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2010

JUDGE:

Robin QC DCJ

ORDER:

Order as per initialled draft (made 17 March)

CATCHWORDS:

Sustainable Planning Act 2009 s 347(1)(d), s 350, s 819, s 440
Integrated Planning Act 1997 s 3.2, s 3.5.32, s 4.1.5A, s 4.1.52(2)

Developer’s non-compliance with mandatory parts requirement of forum of development application – omission of 4 square metre parcel (a one link wide “access restriction strip” – omission excused – changes to proposal determined to be “minor change”

COUNSEL:

W Cochrane for appellant

P Chadwick (solicitor) for the respondent

SOLICITORS:

Mallesons Stephens Jacques for the appellant

King & Co for respondent

1. On 17 March 2010 when the Court made an order in terms of an initialled draft, it was indicated that reasons would be published at some future date for the court’s indulging the appellant developer by excusing non-compliance by it in the original development application by the omission of a small parcel of land which technically had been part of the land to which the development application related and by the court’s allowing the appeal to proceed to determination on the basis of a changed development proposal.  I had the advantage of a rather detailed explanation of the background when the matter came before the court on 18 August 2009 for hearing from Mr O’Brien, the appellant’s solicitor and one of its deponents.  On that date the appeal was adjourned for mention in the expectation that the parties might be able to resolve it.  That has occurred. The development application was for a relocatable home park or caravan park on a problematic site at Blackstone where concerns existed regarding possible subsidence attributable to mining in former times.  It is convenient to set out as an appendix to these reasons Mr Cochrane’s helpful submissions on behalf of the appellant, which may be prefaced with some observations. 

1. It is not likely that the omission of land intended to be affected by the development proposal from the development application is going to be excused, an accurate description of the land being a mandatory requirement of the form.  Here, the parcel whose inclusion was overlooked was a “one link” strip in a separate parcel owned by the appellant.   This is a de minimis matter and, if the court has jurisdiction to excuse it, the case is a sympathetic one.  It is not the first occasion on which there has been a similar indulgence.  In Queensland Investment Corporation v Gold Coast City Council [2000] QPE 050; [2001] QPELR 83, a “road” in respect of which there was a registered freehold title in the name of the State of Queensland represented by the Department of Main Roads had been omitted. Similarly in Calvisi v Brisbane City Council [2008] QPEC 45 there was a redundant road reservation to be amalgamated with the development site at some stage and form part of the curtilege of the proposed building. For what it is worth, for purposes of s 3.2.1 of the Integrated Planning Act 1997, the Council has accepted the application of which (in a changed form) it is now supportive.

1. A feature of the changed plans not appearing from the written submission set out below but canvassed during the hearing is the alteration of the street pattern within the proposed development so that it runs diagonally to the site boundaries rather than parallel and perpendicular. The change by the new orientation of the relocatable homes (which will contain features enabling them to accommodate subsidence that might occur) will allow residents to take advantage of prevailing climate and weather conditions. That a development proposal may look rather different from the air if changed may in some cases mean it is a “substantially different development” for purposes of s 350 of the Sustainable Planning Act 2009 (SPA).  By way of example, if residences on large sites originally proposed to be remote from each other were brought close together to establish a kind of hamlet, to give one example which recently came to my attention, the considerations might be different; the present is not such a case.  Cf. Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386; Barooga Projects Investments Pty Ltd v Redcliffe City Council [2008] QPELR 95.

1. The court was made aware that there were more changes than are specifically mentioned in the written outline;  there is a relocation of some features within the development and omission from the recreation facilities originally proposed of a bowling facility.

1. Subject to the comments above, the Court endorses Mr Cochrane’s submissions; s 440 of the SPA is not reproduced, but the Explanatory Memorandum discussion of it is. The section provides:

“440    How a court may deal with matters involving non-compliance

(1)Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.

(2)       The court may deal with the matter in the way the court considers

appropriate.

(3)To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”

1. Gaven Developments Pty Ltd v Scenic Rim Regional Council, referred to by him, is now available at [2010] QPEC 007.  K Page Main Beach v Gold Coast City Council [2010] QPEC 006 ventured the prediction that “substantially” in s 350 may be productive of difficulty in some contexts in the future; it is not productive of difficulty here in my view.

Appendix

Overview

1. This is an appeal against a refusal by the Ipswich City Council of an application for a Development Permit for a Material Change of Use for Multiple Residential (Caravan Park, Re-Locatable Home Park) on land located at 54 Emma Street, Blackstone in the Ipswich City Council area and otherwise described as Lot 2 on RP 163917, Parish of Goodna.

2. The subject land has an area of 7.22 hectares and in the Planning Scheme extant at the relevant time was located in the SA41 Special Opportunities Zone and within the urban footprint of the South East Queensland Regional Plan.

3. The subject site is generally vacant with the exception of an existing dwelling and some vegetation scattered around the site. 

4. The original application was made in April 2005 and not decided by the Respondent until April 2006.  From that decision the Appellant appealed.  No significant steps were taken in the appeal until 2008 when orders and directions establishing the giving of public notice of the application and compliance with the requirement to give notice of the appeal were made by this Court.

5. Since that time there have been protracted negotiations between the parties until, recently, agreement has been reached between the parties with respect to resolving the appeal on the basis of allowing the application subject to conditions.

6. There is now a proposal by the Appellant to resolve the appeal in reliance upon plans of development which are slightly altered from those initially proposed to the Respondent Local Government and accordingly two issues arise for determination. 

The Issues

1. The negotiations and the revised proposal now result in there being two issues with which the Court must deal and in respect of which determinations must be made.

2. The first of those issues is that in the course of the proceedings, it has emerged that there is an existing access strip (Lot 27 on RP 22445 Parish of Goodna) in the ownership of the Appellant.  (See exhibit DRBOB-1 to the affidavit of O’Brien filed 23 February 2010).

3. The lot which constitutes the access restriction strip was not identified in the application material. 

4. The second issue which the Court must be address is whether the changes which are now proposed are such as to be found to be a minor change as that terms if used in the Sustainable Planning Act 2009 having regard to the provisions of Section 821(2) of the Act and the provisions of Section 4.1.52(2)(b) of the Integrated Planning Act 1997.

5. The access restriction strip, the land the subject of the application (ie Lot 27), is at the northern end of George Street adjacent to the site and has an area of only 4 sq metres. 

The Access Restriction Strip issue

1. As can be seen from the affidavit of O’Brien that very small area of land was not included in the application as a consequence of an oversight.  It was the belief of the developer that at the time the application was lodged all land should properly have been the subject that the application had been included.

2. The Integrated Planning Act 1997 at Section 3.2.1 sets out the requirements for making an application. Section 3.2.1(2) requires:-

   “Section 3.2.1

   (2) The approved form—

   (a) must contain a mandatory requirements part including a requirement for an accurate description of the land; and

   (b) may contain a supporting information part.”

3. Section 3.2.1 applied at the time the application was made.

4. By omitting to identify the access restriction strip land (ie Lot 27 on RP 22445 Parish of Goodna) the Appellant has clearly failed to comply with the requirements of Section 3.2.1.

5. Since the application was refused and the appeal brought, the Integrated Planning Act has been repealed and replaced by the Sustainable Planning Act 2009.

6. Section 819 of the Sustainable Planning Act applies to appeals to the Court generally and Section 819(1) and (2) contain the relevant operative provisions. Those provisions are as follows:-

   “Section 819 Appeals to court—generally

   (1) Subsection (2) applies if—

   (a) a person has appealed to the court under repealed IPA, or repealed IPA as applied under another Act, before the commencement; and

   (b) the appeal has not been decided before the commencement.

   (2) The court must hear, or continue to hear, and decide the appeal under repealed IPA, or repealed IPA as applied under the other Act, as if this Act had not commenced.”

7. Accordingly consideration of whether the failure to include the access restriction strip land falls to be determined having regard to the provisions of the Integrated Planning Act and, in particular, the discretion available to the Court pursuant to Section 4.1.5A.

8. Given the very small area of the land it is submitted that nothing really turns upon the failure to identify it in the application. It has no effect on the nature of the application nor on any of the people who made submissions in respect of the application. It is respectfully submitted that this is a good example of the circumstances in which the Court would be prepared to exercise the discretion granted to it by Section 4.1.5A of the Integrated Planning Act.

9. The Court would be aware that access restriction strips are relics of a previous practice adopted by some Local Governments in order to prevent access to land from particular roads.

10. While they were common in the 1970s and 80s there has been a move away from utilising that device because of the inconvenience of having many identified lots of land with very very small areas.  Each such lot requires the issuing of a separate certificate of title.

11. Indeed the intention of the Integrated Planning Act 1997 at Section 3.5.32(1)(d) is to prevent Local Governments imposing conditions requiring access restriction strips. That Section provides:-

    “3.5.32 Conditions that cannot be imposed

    (1) A condition must not—

    (d) require an access restriction strip; or”

12. That approach has been maintained in the Sustainable Planning Act 2009 in Section 347(1)(d).

13. The affidavit of Mr O’Brien (paragraph 7) confirms that the Appellant would consent to a condition requiring the access strip to be amalgamated into the land which is to be dedicated to the Respondent as road for the extension of George Street to the wharf.

The “Minor Change” point

1. This was an appeal against a refusal of the application by the Ipswich City Council. 

2. In his affidavit Mr Reynolds categorises the reasons for refusal.  The changes which are proposed relate to the reasons for refusal which are categorised in the Reynolds affidavit as falling into six areas namely:-

   a)Mining subsidence;

   b)Character/Amenity of area;

   c)Vegetation Management (including the preservation of “bushland character”);

   d)Town Planning – Development Density;

   e)Stormwater Management; and

   f)Traffic.

3. The key change which is made is a change to the density of development so that the proposal is now for 131 Re-Locatable Homes reduced by 17% from the original proposal which contemplated 158 Re-Locatable Homes, accordingly the development is reduced in density.

4. Further, the current design including changes to the layout, ensures the retention of a significant amount of existing vegetation to be supplemented by further planting in accordance with a landscape plan.  This change is to satisfy the “bushland sensitive” design principles espoused in the Ipswich Town Plan and is intended to enhance the visual amenity of the development.

5. The layout has been altered in an attempt to limit the exposure of the dwellings to areas that are suspected to be affected by historical mine work.

6. The vehicular access arrangements have changed and now include a second formal entry to the north east corner of the site via Emma Street.

7. Consistent with the desire to reduce the density of development the number of car parking bays has been reduced from 80 bays plus 7 trailer storage bays to 45 bays plus 7 trailer storage bays.

8. Other changes which have occurred include stormwater, bio retention basins and swales which are located in about a dozen small areas across the site and which can be seen from the drawing SK02(Rev 4).

Legislative Framework and Relevant Authorities

1. The Sustainable Planning Act 2009 (SPA) sets up an exception to the general rule contained in s.819(2) that where an Appeal has been made under the IPA, and has not been decided prior to the commencement of SPA, the Court must hear or continue to hear and decide the Appeal under the IPA as if the SPA had not commenced.

2. The exception is contained in s.821(2) and provides that for deciding the Appeal s.4.1.52(2)(b) applies as if the reference to a “minor change” were a reference to a “minor change” as defined under the SPA.

3. Section 821(2) provides as follows:-

   “821 Application of repealed IPA, s 4.1.52

   (2) For deciding the appeal, repealed IPA, section 4.1.52(2) applies—

   (a) as if the reference in repealed IPA, section 4.1.52(2)(a) to new laws and policies included any laws and policies coming into effect after the commencement; and

   (b) as if the reference in repealed IPA, section 4.1.52(2)(b) to a minor change were a reference to a minor change as defined under this Act.”

1. Accordingly the Court is required to have regard to the provisions of the Sustainable Planning Act.

2. The dictionary within the Sustainable Planning Act (Schedule 3) provides:-

   “Minor change, in relation to a Development Application, see Section 350.

3. Section 350 provides:-

   Section 350 relevantly refers to:

   “(d)   a change that—

   (i)        does not result in a substantially different

   development; and

   (ii)       does not require the application to be referred to

   any additional referral agencies; and

   (iii)      does not change the type of development approval

   sought; and

   (iv)      does not require impact assessment for any part of

   the changed application, if the original application

   did not involve impact assessment.”

4. It is not understood by the Appellant that any party contends that the changes which have been made either:-

   a)Require the application to be referred to an additional Referral Agency; or

   b)Changes the type of Development Approval sought; or

   c)Requires impact assessment for any part of the changed application not having originally involved impact assessment.

5. Accordingly the primary consideration is whether the change will result in a “substantially different development”. 

6. That the test is intended to be more flexible than that of “only a minor change” under the IPA is confirmed by the Explanatory Note to the SPA. 

7. The Explanatory Notes provide that the section is intended to set out:

   “… a simpler, clearer and more flexible process for changing development applications than the process in the current IPA.  This new process allows a broader category of minor changes to be made …” [1]

   [1]Explanatory Note, page 184.

8. Notwithstanding the “broader category” of minor changes which are contemplated as being able to be made under the SPA than under the IPA, some guidance in the circumstances of this case may be obtained from the principles established under IPA, and conveniently summarised in Parcel One Pty Ltd v Ipswich City Council 2007 QPELR 474 at 476. See also Gaven Developments Pty Ltd v Scenic Rim Regional Council, Unreported, Robin QC DCJ, 1 December 2009.

9. These submissions have been prepared with an awareness of Your Honour’s recent decision in K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2010] QPEC 006.

Conclusion

Principles with Respect to “Minor Change”

1. To assist the Court a number of the principles from relatively recent authorities have been summarised in this part of the submissions.

2. An analysis of the authorities relevant to determining whether a change to an application is a minor change reveals the following general principles:

   (a)     when considering whether a proposal modification is of a minor nature, the Court is required to assess whether or not the application would result in a materially different proposal[2]. The application of the test ultimately involves questions of fact and degree.[3]

   (b) for the purpose of questions arising under Section 4.1.52(2)(b), matters of degree and scale, referable to the usual meaning of the words “minor change” will be the primary ones and usually involve a comparison of what is proposed, with the application in its original form[4].

   (c)     in considering the nature of a proposed amendment or variation, the proposal ought to be looked at broadly and fairly.[5]

   (d) in some instances, assistance can be gained by considering the criteria referred to in the definition of minor change in Schedule 10 of IPA. Whilst the definition is not specifically applicable to development approvals it has some relevance in the interpretation of Section 4.1.52(2)(b) as it would be reasonable to suppose that the legislature would intend a consistent approach to changes to any proposal during the approval process. [6]

   (e)     the determinative question is whether the change to the proposal “would be likely to attract an adverse submission that was not provoked by the proposal in its original form?” [7]

   (f)     the answer to the above question requires an examination of the matter not from the perspective of an experienced town planner, or a person of any particular level of prudence or awareness in these matters, but from that of the members of the community to whom the right of objection extends (“the hypothetical objector”);  and

   (g)    the hypothetical objector is taken to be an average representative of the community who is both objective and rational.

   [2] Westfield Limited v Gold Coast City Council & Ors [2000] QPELR 121 at 128

   [3] Ibid

   [4] Ryan v Brisbane City Council & Anor [2005] QPEC 017 at paragraph [11]

   [5]Westfield (Supra) at 128

   [6] Carillon Development Limited v Maroochy Shire Council & Birch Carroll & Coyle Limited & Ors [2000] QPELR 216 and 217/Ryan (supra) at paragraph [8[

   [7] Carillon (supra) at 218, para [14]/Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 at 410, para [10]/Colman & Ors v Brisbane City Council & Anor [2002] QPELR 288 at 290, para [14]/Sinnamon v Miriam Vale Shire Council (2003) QPELR 195 at 198

   “How court may deal with matters involving non-compliance

   Clause 440 provides the court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill.

   This clause enables the court to give relief in response to proceedings commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any other provision of the Bill, including provisions which would otherwise provide that an application had lapsed.

   The purpose of this clause is to ensure a person’s rights to hearings are not compromised on the basis of technicalities concerning processes. The term “provision” is intended to be interpreted broadly and is not limited to circumstances where there is a positive obligation to take a particular action.

   The court’s power is not restricted to proceedings before it. This allows access to the court for declarations and orders about procedural disputes which do not form part of wider proceedings.

   Subclause (3) makes it clear that the clause applies in relation to a development application which has lapsed or is not a properly made application.”

1. In the Parcel One decision His Honour Judge Alan Wilson SC DCJ (at paragraphs 14 and 15) observed as follows:-

   “[14] The parties provided copies of 12 decisions of this court touching s 4.1.52, and it predecessor. Recently, 17 decisions were cited to his Honour Judge Brabazon QC in Butler v Kingaroy Shire Council [2006] QPEC 093. Reference was also made before me, to two subsequent decisions: Macquarie Leisure Operations Limited  Gold Coast City Council & Ors [2007] QPEC 020, and Lascorp Development Group v Burnett Shire Council & Anor [2007] QPEC 024. Certain principles can be distilled from those cases:

   (a)     it is important not to adopt a test other than that stipulated in the statute The phrase ‘only a minor change’ is a simple and straightforward on which should be construed principally by reference to matters of scale an degree, and broadly and fairly;

   (b)     it is attractive to adopt a generous approach to the interpretation of the limits within which an application may be changed6;

   (c)     it must, however, be remembered that the matter comes before the court by way of an appeal and the court must not deprive the proceedings of that character by usurping the function of the decision-maker at first instance;

   (d)     the question may be determined with some assistance from the criteria referred to in Schedule 10 of IPA;

   (e)     the possibility that the changes proposed are beneficial or ameliorative may be relevant to the third arm of the definition of minor change in Schedule 10, (c) of IPA; but the fact that the changes proposed may be characterised in that way does not automatically overcome the jurisdictional hurdle that the changes must be limited to ones which are only minor;

   (f)      for the purpose of the exercise it will be useful in some cases to distinguish between the salient, and incidental, features of the original proposal Modification of a salient feature, if small or inessential, may amount to n more than a minor change. On the other hand, modification of a salient feature which cannot reasonably be seen as small or inessential is likely t be more than a minor change;

   (g)     the dictionary definition of ‘minor’ includes unimportant, or insignificant.  The use of the word ‘only’ in s 4.1.52(2)(b) of IPA might be taken as a indication that what is contemplated is something relatively unimportant.

   [15] There is nothing novel in the notion that a development application may, and indeed (as recent developments in this jurisdiction suggest) probably will change in the course of assessment, or when subjected to the intense scrutiny of an appeal process. All of the experts appear to agree that the changes here have served to enhance the original proposal, and improved the manner in which it will be performed. That is a not uncommon product of both the IDAS process under Integrated Planning Act 1997 and of the meetings of experts conducted in the course of appeal proceedings heard pursuant to Practice Direction 1 of 2006.”

2. In this case applying principles set out by His Honour in the Parcel One decision but, at the same time, having regard to the now much broader description of “Minor Change” provided for in the Sustainable Planning Act, it is respectfully submitted that the Court would have little difficulty finding that permitting the changes which are contemplated and set out above in paragraph 25 through to paragraph 31 the resulting form of development is one which is not substantially different from what was originally proposed.

3. The changes proposed can be seen in the plans exhibited to the affidavit of Stephen Robert Reynolds filed 23 February 2010.  In particular paragraph 7 and exhibit SRR-1.

4. Specifically the current form of the application:-

   a)Retains the proposal to develop relocatable homes but now proposes 131 compared with the original contention for 158;

   b)Has changed the layout to retain increased areas of vegetation consistent with “bushland sensitive” design principles;

   c)Has changed the Access arrangements;

   d)Has reduced the number of car parking bays; and

   e)Has addressed the stormwater drainage issues by spreading various devices across the whole site.

5. The Appellant understands that the other party to the appeal namely the Ipswich City Council supports the contention of the Appellant that the changes proposed constitute minor changes.