King of Gifts (Qld) Pty Ltd v Redland City Council
[2017] QPEC 15
•24 March 2017
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
King of Gifts (Qld) Pty Ltd & Anor v Redland City Council & Anor [2017] QPEC 15
PARTIES:
KING OF GIFTS (QLD) PTY LTD and
HTC CONSULTING PTY LTD
(appellants)v
REDLAND CITY COUNCIL
(respondent)and
DEPARTMENT OF TRANSPORT AND MAIN ROADS
(co-respondent by election)FILE NO/S:
3641/2015
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment
DELIVERED ON:
24 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
10 March 2017
JUDGE:
Everson DCJ
ORDER:
I declare that the proposed changes are a minor change
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – Whether changes to a development application are a minor change – Whether changes to a development application result in a substantially different development
COUNSEL:
P A Beehre for the appellant
K W Wylie for the respondentSOLICITORS:
Introduction
This is an appeal against the decision of the respondent dated 20 August 2014 refusing a development application for a development permit for a material change of use for a Combined Service Station (including ancillary Carwash facility) and Drive Through Restaurant (“the development application”) in respect of land at 604-612 Redland Bay Road, Alexandra Hills (“the site”).
In the proceeding before me the appellant seeks a declaration that changes it proposes to make to the development application are a minor change as that term is defined in s 350 of the Sustainable Planning Act2009 (Qld) (“SPA”).
The proposed changes
The proposed changes are set out in Exhibit 2. Most of them are indicated in Drawing No. 3310074E-SP01 Rev I (“the proposed plan”).[1] They may be summarised as follows:
1.the removal of the above ground sewerage effluent treatment area and the chain-linked fencing surrounding it marked on Drawing No. 3310074E-SP01 Rev G (“the current plan”);[2]
2.that onsite effluent treatment is to be undertaken in accordance with the report of Simmonds & Bristow Pty Ltd dated March 2017[3] which includes utilising the sub-surface irrigation area indicated in the proposed plan and makes provision for emergency removal of treated effluent by tanker when there are periods of excessively high rainfall;[4] and
3.the inclusion of fauna exclusion fencing adjacent to the developed area of the proposed development as indicated in the proposed plan.
[1]Affidavit of David Joseph Bristow, filed 8 March 2017, Ex. DJB-3.
[2]Ibid, Ex. DJB-2.
[3]Ibid, Ex. DJB-4.
[4]Ibid, [24].
The legislative framework
Pursuant to s 495 of SPA the court “must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”.[5] The term “minor change” is relevantly defined in s 350 of SPA in the following terms:
[5]Sustainable Planning Act 2009 (Qld) s 495(2)(b).
“350 Meaning of minor change
(1)A minor change in relation to an application, is any of the following changes to the application—
(a)a change that merely corrects a mistake about the name or address of the applicant or owner, or the address or other property details of the land to which the application applies, if the assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application;
(b)a change of applicant, if the assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application;
(c)a change that merely corrects a spelling or grammatical error;
(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.”
An application can also be changed before it is decided by the assessment manager “by giving the assessment manager written notice of the change”.[6] There are limitations to this procedure and it does not permit an applicant to change an application if the change would result in the application not being a properly made application or involving prohibited development.[7]
[6]Ibid s 351(1).
[7]Ibid s 351(2).
Not surprisingly, given the numerous technical requirements of SPA, complying with the IDAS process can be difficult. There is therefore a general power to excuse non-compliance. Section 440 states:
“440 How 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.”
The relevant factual matrix
From lodgement of the development application, it was always contemplated that the proposed development would include a complying onsite sewerage treatment plant.[8] It is uncontroversial that the effluent discharge area of 2,100m² shown in the current plan was only nominated following an information request of the Department of Environment and Heritage Protection which was a concurrence agency for the proposed development.[9] The current plan was not the subject of a formal request to change the application pursuant to s 351 of SPA, however, it was certainly before the respondent at the time the decision to refuse the proposed development was made. Indeed, it is annexed to the assessment report prepared in respect of the proposed development.[10] I am content that the current plan was part of the application on which the decision being appealed was made pursuant to s 495(2)(b) of SPA.
[8]Affidavit of Christopher John Schomburgk, filed 14 March 2017, Exhibit CJS-2.
[9]Affidavit of Anca Butcher, filed 3 February 2017 [3]-[4].
[10]Affidavit of Mr Schomburgk, filed 14 March 2017, Exhibit CJS-9.
To complicate matters further, the current plan was also the subject of an order of Bowskill QC DCJ on 12 October 2016 relating to a previous minor change application. In circumstances where the respondent considered the current plan in refusing the development application and did not oppose the previous minor change application resulting in the order of 12 October 2016 which attaches the current plan, I find it bizarre that the respondent now takes the point that it is not appropriate for me to have regard to the current plan because no formal application was made pursuant to s 351 of SPA. Furthermore, upon becoming aware of the respondent’s contention in this regard, the appellant has not requested an order pursuant to s 440 to address any such technical non-compliance. In the event that it were necessary, I would have no hesitation in utilising the excusatory power pursuant to s 440 and deeming the current plan to have been part of the application on which the decision being appealed was made.
Do the proposed changes result in a substantially different development?
The only issue before the court is whether or not the proposed changes result in a substantially different development and are therefore outside the definition of a minor change pursuant to s 350 of SPA.
In considering this issue it is important to note the observations of Rackemann DCJ in Heritage Properties Pty Ltd v Redland City Council:[11]
“The sole consideration which falls for determination today is whether the changes are minor in the relevant sense, so as to permit the Court to consider them. The question is not whether the proposal, as changed, is acceptable or not. That is something for debate at a later merits hearing, in the event that the changes are held to be minor.”
[11][2010] QPELR 510, 512.
As to what constitutes “a substantially different development” the observations of the court in Jimboomba Lakes Pty Ltd v Logan City Council & Anor are instructive:[12]
“It is not the role of the court to undertake a comprehensive investigation and analysis of any change sought to be made to a development application. This is expressly provided for in the IDAS process. The limitation in s 350 of SPA that the change not result in a substantially different development means that the proposed change must not be essential, material or important in the context of the development application.”
[12][2015] QPELR 1044, 1049.
Of the proposed changes, the only change of significance is that the onsite effluent disposal area has been revised to comply with the concurrence agency irrigation requirements and in particular, the proposed condition that the maximum irrigation rate not exceed 2mm per day. In order to achieve this, the appellant intends to replace the above ground effluent disposal area measuring 2,100m² on the current plan with an effluent disposal area of 5,060m² utilising subsurface irrigation as indicated in the proposed plan.[13] A comparison of the current plan with the proposed plan shows the subsurface irrigation area will be contained within the same general area of open space on the site. This change represents a further refinement of the onsite sewerage treatment regime which always formed part of the proposed development. The attempts of the respondent to descend into the merits of this change in the course of the hearing before me were misguided and of no consequence in any event.[14]
[13]Affidavit of Mr Bristo filed 8 March 2017, [22]-[23].
[14]The respondent called evidence from both Mr Overden, a planner and Mr Chenoweth, an ecologist, which addressed the merits of the proposed changes.
Even a substantial change to the design of an incidental component of a proposed use does not necessarily result in a substantially different development from the perspective of what is contemplated by the development application. The test pursuant to s 350(1)(d)(i) of SPA is that the change not result in “a substantially different development” not merely that it not result in some substantially different development. Therefore, as stated in Jimboomba Lakes,[15] the test must be applied “in the context of the development application”, that is the development application as a whole. To do otherwise would render the test overly restrictive given the broad definition of “development” in s 7 of SPA.
[15]Jimboomba Lakes Pty Ltd v Logan City Council & Anor [2015] QPELR 1044, 1049.
This change is merely a design solution to an incidental aspect of the proposed use which is for a Service Station, Carwash facility and Drive Through Restaurant. It does not give rise to a substantially different development. Neither do the other changes which relate to some fencing and the proposed removal of treated effluent from the site during wet weather conditions.
I therefore declare that the proposed changes are a minor change pursuant to s 350 of SPA.
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