K Page Main Beach Pty Ltd v Gold Coast City Council

[2010] QPEC 6

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

K Page Main Beach Pty Ltd v. Gold Coast City Council & Ors [2010] QPEC 6

PARTIES:

FILE NO/S:

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

3 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

JUDGE:

Robin QC DCJ

ORDER:

CATCHWORDS:

Sustainable Planning Act 2009 s 350(1)(d)(i)
Integrated Planning Act s 4.1.52(2)(b)

Whether changes to appellant developer's proposal are "minor change" - no "substantially different development"

COUNSEL:

SOLICITORS:

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 996 of 2009

K PAGE MAIN BEACH PTY LIMITED	Appellant
and
GOLD COAST CITY COUNCIL AND OTHERS	Respondent

BRISBANE

..DATE 03/02/2010

ORDER

HIS HONOUR: The Court has made an order declaring its satisfaction that changes proposed to the appellant's development represent only minor change for the purposes of section 4.1.52(2)(b) of the Integrated Planning Act 1997. That conclusion permits the appeal to proceed on the basis of the revised proposal. The regime in respect of minor change considered by the Court in cases such as Parcel One Pty Ltd v. Ipswich City Council [2007] QPEC 33 at paragraph 14 and Gaven Developments v. Scenic Rim Regional Council [2009] QPEC 119 at paragraph 20 no longer applies thanks to the coming into force of the Sustainable Planning Act 2009, although section 819(2) of that Act might indicate that the appeal proceeds under the "Repealed IPA" by section 821.

So far as section 4.1.52(2)(b) is concerned, "minor change" is to be construed in accordance with the definition under the Sustainable Planning Act 2009. That definition is found in section 350, and relevantly {see subsection (1)(d)(i)) refers to a change in relation to an application which "does not result in a substantially different development".

Mr Gore QC for the appellant has referred the Court to a statement in the explanatory memorandum to the effect that the relevant part of the new Act "sets 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 without having to stop the IDAS process.  It also provides for changes to be made in response to submissions and information requests without significantly delaying the IDAS process and allows a single process for making all other changes."

One might venture a prediction that there will be many contexts in which there is much room for argument as to whether a development is "substantially different", 'substantial' being a notoriously problematic expression.  From some points of view, something which can be measured at all might be considered substantial. 

There's no such difficulty at present, given that for the most part the changes reduce the bulk and scale of the proposal, ameliorating impacts which might be of concern to neighbours and the like.  The proposal is for a residential building in a salubrious part of the Gold Coast.  Mr Reynolds' affidavit helpfully summarises the changes which appear from the plans.  The large-scale copies which have been tendered as Exhibit 1 do assist the Court to appreciate what the changes are.

Under the heading 'Building Height', Mr Reynolds refers to a thickening of the ground floor slab by 150 millimetres.  That will doubtless improve the structural soundness of the building, but on the material before the Court will not increase its measured height at all.  In respect of gross floor area there is a reduction from 2,588 square metres to 2,049.37 square metres.  Changes of that kind have traditionally been regarded as minor under whatever definition fell to be applied.

The same observation refers to an increase in the southern setback from 1.5 metres to 3.5 metres.  That is to be "paid for" to an extent by a reduction of the northern setback from 4.28 metres to 3.78 metres.  As Mr Gore says, those changes in combination may be welcome to neighbours of the proposal on the south side, but not to neighbours on the north side. 

There are a very large number of adverse submitters represented in this appeal, nearly all of whom are represented by Ms Malone.  As to those not represented by her, none of whom appeared when the matter was called outside the Court, although I accept from Mr Gore were made aware of today's hearing and the details of the minor change to be placed before the Court for its consideration.

There will be merits issues, as they were described, bearing on those changes which the Court will very likely have to confront in due course.  They don't affect its task of determining on the presently applicable basis where there's a minor change. 

There are proposed changes to the external appearance of the building on all four elevations.  Those relate to details of fenestration, balconies, arrangements of pillars and the like.  On the northern elevation there is a change to the form of roof from flat to slightly concave.  None of those matters substantially changes the proposal.

The remaining changes are of less concern, being internal changes such as enlargement of plant room and internal layout changes both within and outside individual apartments.  There is also a series of changes which Mr Reynolds discusses under the heading "Ecologically Sustainable Development", which relate to provision of double-glazing, motion sensors for the common area, lighting, bicycle lockers, provision of sub‑metres to record energy use and the like.

That review of the changes leaves me comfortably persuaded that the order sought by the appellant ought be made and it has been.

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