Leighton Properties Pty Ltd v Brisbane City Council

[2011] QPEC 38

[2011] QPEC 38

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2424 of 2010

LEIGHTON PROPERTIES PTY LIMITED	Appellant
and
BRISBANE CITY COUNCIL & ORS	Respondents

BRISBANE

..DATE 11/03/2011

ORDER

CATCHWORDS

Sustainable Planning act 2009 s 350
Integrated Planning Act 1997 s 4.1.52(2)(b)

"Minor change" where redesign of (unchanged) building allowed - modest increase in GFA - proportions of retail, commercial, hotel and apartment components adjusted

HIS HONOUR:  The court makes an order in terms of the initialled draft, which is judgment allowing an appeal against a deemed refusal of a development application for a mixed used development at Church and East Streets, Fortitude Valley, including commercial retail components, also residential apartments and a hotel.

The application was impact assessable, attracting some support from the two co-respondents-by-election.  The Council now support the proposal, and perhaps in consequence of the changes which the court is asked to recognise as a minor change only, so that the appeal can proceed to determination.

There is little difficulty in the court reaching the relevant degree of satisfaction.  The order is helpful in identifying by inclusion of a list of plans the changes to the development application from that publicly notified.  Externally 18 levels will be unchanged.  Greater efficiency in the design has permitted the creation of additional useable space so that there's an increase in GFA from 22,225.5 square metres to 22,563 square metres, a relatively modest percentage increase.

That is essentially being achieved in the retail and commercial areas which will increase by almost a quarter in the former and by a similar proportion in the latter.  The hotel component is to be increased by something like 40 per cent.  The apartment component reduces more significantly by more than 1,000 square metres.

The only part of section 350 of the Sustainable Planning Act which provides the relevant definition of minor change, for the purposes of section 4.1.52(2)(b) of the repealed Act is that in subsection (1)(d)(i) which requires the change not to result in a substantially different development. The changes here do not.

There's no occasion for reference to additional referral agencies, no change to the type of development approval sought and so far as (iv) is concerned the original application involved impact assessment.

There's been some judicial recognition of the guidelines established to assist judgments to be made, at least administratively, as to whether a change is minor.  Mr Nicholls has taken the court through them.  Any theoretical concern that the changes made might increase demands on public infrastructure and the like, which would seem unlikely, are alleviated, in my opinion, by the Council's support for what the appellant wishes to do.  Order as per initialled draft.

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