Lormax Pty Ltd v Cairns Regional Council

[2012] QPEC 3

PLANNING AND ENVIRONMENT COURT

JUDGE EVERSON

P & E Appeal No 236 of 2010

LORMAX PTY LTD	Appellant
and
CAIRNS REGIONAL COUNCIL	Respondent
and
TERRENCE RICHARD DAVIDSON, IAN MACLEOD-CAREY, SAVE WHITFIELD HILL COMMUNITY ACTION GROUP INC, LORRAINE LAWSON, KRISTINE MCDONOUGH, TERENCE MCDONOUGH and PATRICIA MCINTYRE	Co-Respondents

CAIRNS

..DATE 06/02/2012

..JUDGMENT

CATCHWORDS

ENVIRONMENT AND PLANNING – Sustainable Planning Act 2009 - Minor change to development application – Whether substantially different development

HIS HONOUR: This is an application seeking an order that changes proposed to the development application, the subject of the appeal, are a minor change pursuant to section 350 of the Sustainable Planning Act 2009 ("SPA").

Essentially, to address concerns raised about the bulkiness of the proposed multiple dwellings on the site, the appellant proposes internal changes to the design of the multiple dwellings which break up their built form. Whereas once there were 2 buildings containing a total of 15 units, there are now to be 3 distinct buildings. Changes to the elevations of the buildings further break up the bulkiness by removing roofs over pedestrian accesses between certain units.

The consequences which are relevant to my consideration of the application are firstly that there is a substantial increase in ground level car parks. Whereas once there was a considerable underground car park component, now all car parks are to be at ground level. The effect of this is that where once there were 8 car parks above ground, now there are 26 car parks above ground. The other consequence is that the building which has now been split into two distinct buildings is closer to the alignments of two adjoining residences.

It is submitted that in both respects the changes result in a substantially different development and are, therefore, not a minor change pursuant to section 350 of SPA. In the Macquarie Concise Dictionary, fourth edition, the term "substantial", is defined as, inter alia, "of or relating to the essence of a thing; essential, material, or important."

Whilst it is clear that the internal changes, the subject of this application, will result in different amenity impacts, I am not of the view that they result in a substantially different development. The essence of the development remains the same. It is still a 15 unit multiple dwelling development and I, therefore, conclude that the changes are something less than substantial. I, therefore, allow the application.

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CaseChat Overview and Summary

Lormax Pty Ltd sought an order declaring that the changes proposed to their development application were a minor change under the Sustainable Planning Act 2009. The original proposal involved two buildings with a total of 15 units. The proposed changes included internal alterations to break up the built form, resulting in three distinct buildings. Additionally, the elevations of the buildings were altered to remove roofs over pedestrian accesses between certain units. These changes aimed to address concerns about the bulkiness of the proposed multiple dwellings. However, the changes also resulted in a substantial increase in ground-level car parks and brought one of the buildings closer to adjoining residences.

The court was required to determine whether the proposed changes amounted to a substantially different development, as defined by the Sustainable Planning Act 2009. The court considered whether the essence of the development had changed and whether the alterations were significant enough to constitute a different development. The court also had to assess whether the proposed changes resulted in a substantially different impact on the amenity of the surrounding area.

The court concluded that although the proposed changes would result in different amenity impacts, they did not amount to a substantially different development. The essence of the development remained the same, as it was still a 15-unit multiple dwelling development. The court found that the changes were less than substantial and allowed the application. Consequently, the court determined that the changes proposed to the development application were a minor change under the Sustainable Planning Act 2009.

CaseChat Overview and Summary

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Background to the litigation

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