Ken Ryan and Associates v Brisbane City Council

[2005] QPEC 100

[2005] QPEC 100

PLANNING AND ENVIRONMENT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

Appeal No BD2454 of 2004

KEN RYAN & ASSOCIATES AS AGENTS
FOR MELTHORN PTY LTD
ABN 08 788 604 780  Appellant

and

BRISBANE CITY COUNCIL  Respondent

BRISBANE

..DATE 16/09/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.1.52(2)(b) - a "minor change" where an application was changed to reduce from 3 to 2 the number of detached residential sites to be accessed by a shared easement strip - whether Schedule 10 definition applied, considered.

HIS HONOUR:  The Court makes an order in terms of the initialled draft, which incorporates the conditions package settled on by the parties in respect of a reconfiguration application.

The land is accessed, but with some difficulty, from Maundrell Terrace, Aspley.  The difficulty the Council felt about the original proposal lay in the number of residential allotments which would be accessed via a narrow easement from Maundrell Terrace.

The proposed easement on the northern alignment of the development site, represents a narrowed extension of an existing access, the site which contains an existing two storey brick house already being a hatchet block.  The original proposal was that the eastern half of the site be reconfigured to produce three residential allotments behind that (closer to Maundrell Terrace) containing the existing house.

The balance of the site was to be left for later development.  It was called stage 2.  The resolution come to reduces the three new home sites to two larger ones.  There is also a condition which precludes development of stage 2 until alternative access to that discussed above, which has given rise to the Council's concerns about congestion, becomes available.

Mr Connor has explained that his client accepts the necessity to wait until other development in the area offers a useful opportunity.

His written submissions note differing views among judges of the court, as to whether the Integrated Planning Act schedule 10 definition of "minor change" is applicable.

In the present circumstances which come under section 4.1.52, subsection (2)(b) precludes the court's considering the change to the appellant's application "unless the change is only a minor change".

The schedule 10 definition by replication of language found in section 3.5.24(1) clearly applies in respect of that section.

It was held in Papas v Brisbane City Council [2003] QPEC 6 and in Zarb v Brisbane City Council [2005] QPEC 4, that the schedule 10 definition did not apply in respect of section 4.1.52, Judge Newton in the latter saying it would have been a simple matter for the legislature to clearly express any intention it held that the definition did apply for section 4.1.52 purposes. Subsection (2)(b) was held to be unavailable where a new element (of a second driveway of excessive dimensions) was added to a development proposal. Likewise, in Papas, where, despite some redesign of a dwelling house to reduce exceedence over the benchmark of 8.5 m in height, the area of such exceedence was increased.

Judge Quirk took a different view, which appeals as a practical approach, in Carillon Development Limited v. Maroochy Shire Council [2000] QPELR 216, that it would be "incongruous not to take a comparable view of the concept of 'minor change' in the interpretation of section 4.1.52". Again, the outcome was that there was no mere "minor change" in the omission from a proposal of a cinema whose presence his Honour thought may have led some potential objectors not to make submissions.

It would certainly be useful to have some guidelines for determining what is a minor change, a question which arises in the Court very often.

In the present situation, it seems to me that nothing turns on which approach to the schedule 10 definition is correct. As a general rule, what Senior Judge Skoien said in Sinnamon v Miriam Vale Shire Council [2003] QPELR 195 and I quote:

"Although a determination of the issue depends upon the merits of each case, the test is more likely to be satisfied if the change constitutes a 'lessening in intensity'"

is plainly correct.  The facts in Carillon were unusual.  The removal of one house from the current proposal clearly amounts to a lessening in intensity; in particular, bodes to reduce congestion on the easement.

It is impossible to imagine that there could be anyone who did not complain about the original proposal, who would have concerns about the changed one.
The development application here was and remains subject to code assessment.  The proposed changes do not require referral to any concurrence agency, nor represent any concerning or "material" change in the intensity and scale of the use.

In the circumstances, order as per initialled draft.

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