Maher v. Hervey Bay City Council

[2007] QPEC 78

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Maher v Hervey Bay City Council [2007] QPEC 078

PARTIES:

PETER MAHER AND SOFIA MAHER

Appellant

v

HERVEY BAY CITY COUNCIL

Respondent

FILE NO/S:

3079/2006

DIVISION:

Appellate

PROCEEDING:

Application for determination that changes to the applicants’ development application was minor change

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

20 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2007

JUDGE:

Robin, DCJ

ORDER:

Application refused

CATCHWORDS:

Integrated Planning Act 1997, s 4.1.52(2)(b), Sch 1 definition of “minor change” – circumstances in which deletion of elements from a development proposal did not constitute minor change – deletion of (rooftop) terrace dividers created a large area on top of a six storey building of some 48 lots
- proposed for a low rise residential district - that area now to be generally accessible by internal stairs from all lots - privacy concerns were not a feature of the many adverse submissions made during public notification – court unpersuaded that knowledge of the changed proposal would not have been likely to provoke a submission 

COUNSEL:

Hinson SC for applicants

Connor (solicitor) for respondent

SOLICITORS:

Carswell and Company for applicant

Connor O’Meara for respondent

1. The underlying appeal is one against the respondent Council’s refusal of a development application lodged on or about 22 December 2004 for a material change of use in order to construct a six-storey apartment building on land at 233 Charlton Esplanade and Hythe Street, Pialba, in the City of Hervey Bay.  The Council’s submissions explain the refusal as a “deemed refusal” and the building as “effectively, a seven level building”.

1. The impact assessable application attracted much opposition during public notification which occurred in March 2005.  The Council’s planner Mr Macnee exhibits to his affidavit the 88 properly made submissions. Those have a tendency to be repetitive.  They are unsurprising submissions from residents of an area where all of the development is low rise, in which the proposed building (with some 48 units or lots according to the Application Planning Report) will be highly dominant.  Mr Macnee summarises the submitters’ points as follows: -

“(a)     the proposal is out of character with the locality in terms of:

(i)         design;

(ii)       density;

(iii)      height;

(b)        amenity concerns, in particular:

(i)         noise;

(ii)       overshadowing;

(iii)      loss of views;

(c)        traffic issues;

(d)        carparking issues;

(e)        concerns about the adequacy of sewerage and water infrastructure;

(f)        flooding and drainage issues”

and offers the following comments about the subject matter of the present application, which seeks that the court accept as “minor change” certain changes made to the plans submitted with the application which were prepared “in an attempt to address concerns that had been expressed by the Respondent [and] were sent to the Respondent in January 2006” (Mr Hinson SC’s written submissions for the applicant):

“(a)the removal of the terrace dividers from the level 6 terrace and the roof level terrace, and their designation as “common roof area”, has the real potential to create or exacerbate overlooking and noise issues.  Given that the terraces are no longer divided into separate areas for use in conjunction with individual units of the building, it seems reasonable to assume that there is a genuine potential for these areas to be used more frequently and by persons who reside in units on lower floors who may not enjoy a view (or as extensive a view);

(b)an element of the original proposal, the “Resort Shop”, is now proposed to be deleted;

(c)given that public notification of the development application occurred in March 2005, it is likely that there are some new residents in the locality that did not previously have an opportunity to voice their concerns about the proposed development.”

The level 6 terrace covers roughly half of the building’s “footprint” and in that part constitutes the roof.

1. Mr Hinson’s brief written submissions identify the changes: -

“3.        The floor changes are: -

(a)        Carpark / Basement: - The old plans incorporated a reference to a shop (intended to be a small convenience store).  It has been deleted.

(b)        Level 6: - The old plans showed two terrace dividers.  They have been deleted.

(c)        Roof level: - The old plans had a lightweight weather structure on top of the roof.  It has been deleted.”

4.   There have been minor, non-structural architectural changes made to the windows, stairwells, left wells and balconies of the proposed development.  These can be identified on the elevations.  They can be summarised briefly as follows: -

“(a)        Balconies: - the solid balcony walls on the old plans have been replaced with semi-solid balustrades, this can be best seen by comparing the Esplanade elevations on the old and new plans.

(b)       Stairwells: - the flat roofs on the old plans have been replaced with curved roofs in the new plans.

(c)Lift well       : - The Lift well in the centre of the structure has been partially covered with shutters in the new plans.

(d)      Windows: - Some of the square windows have been replaced with circular windows in the new plans.  Most of the new windows have been covered with shutters.  The remaining windows feature pelmets or awnings as added architectural elements.”

He relies on the decision in Studio Tekton Pty Ltd v Redland Shire Council [2007] QPELR 174 which is, he says, the closest decision “on the facts” available for the assistance of the court in respect of s 4.1.52(2)(b) of the Integrated Planning Act 199.  This which provides that the court must not consider in an appeal such as the present a change to the development application on which the decision under appeal was made unless the change is only a “minor change”.

1. Mr Hinson’s submissions might be accepted if he was correct, in the sense of presenting the whole picture, in his contention that: -

“The changes are architectural only.  They do not alter the nature or intensity of the material change of use applied for.  No new elements are introduced.  The changes are accordingly minor, and the appeal should be allowed to proceed on the basis of the changed plans.”

1. The contentious aspect which leads the Council to argue that no one can be confident that what the applicants seek is “minor change” as defined in schedule 10 of the Act: -

“Minor change, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change--

(a) require referral to additional concurrence agencies; or

(b) cause development previously requiring only code assessment to require impact assessment; or

(c) for a development requiring impact assessment--be likely, in the assessment manager's opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.”

centres on the removal of the “terrace dividers”.  This is likely to involve a change to the way in which the building will operate.  Originally, the level 6 terrace (and it may be the roof level as well) was to be divided into discrete areas accessible only from the lots below.  Under the new plans, these areas will be open, lacking any internal divisions, and will be accessible to occupants of the whole building and their guests via an internal staircase.  Deletion of elements in this instance creates an enlarged rooftop area to which general access is available.  There may be large gatherings occurring there, possibly noisy ones.  The submissions collected by Mr Macnee do not reveal concerns about privacy. 

1. It might be thought surprising that they do not extend to “overlooking”, and Mr Hinson suggests this may bespeak a lack of concern.  For those potential submitters living below in the relevant and other nearby streets, concern that their activities are not private may well be heightened by the sight of observers on the terrace and roof.  I think it clear that, with many more persons being entitled to access, and the more prominent location of the higher viewing platform when compared with the private balconies forming part of the separate lots, potential concerns for privacy, also disturbance from noisy gatherings and the like, would be heightened.

1. Mr Connor began his submission by noting (without attracting any correction) that:

“…in the old plans, both level 6 and the roof was assigned to particular units as a – an exclusive use area, but in the new plans it really seems to be a public access area for people who live within the units, or are staying within the units.”

It is obscure whether any change to the stairwells (in particular to the locations in the building accessible from them) is proposed.  The court’s conclusion is the same either way.

1. The court has in Ms Neale’s affidavit her prediction that the terrace and rooftop areas will not be used in ways or at levels to have much additional impact on surrounding residents or their privacy or amenity.  She is a practicing registered landscape architect.  She suggests for example, that lacking facilities such as shelter barbeques and toilets would make the terrace/rooftop unappealing to potential users, that they would congregate on the seaward side to enjoy views, rather than be looking towards north, south and west.

1. The Council take what I in the end conclude is the correct and reasonable position that members of the public ought to have the opportunity to advance a submission based on “privacy” or like considerations.  The applicants’ difficulty arises from paragraph (c) of the definition of “minor change” as it would on the ordinary understand of the expression.

1. During the hearing it was suggested that issues of that kind are already in the appeal, that the court could attend to proper concerns by imposition of conditions, which might preclude activities likely to produce nuisance by way of noise, light, etc at night.  In the end, I do not think that is an answer to the situation.  The changes go beyond mere “architectural” and similar ones.  Were it otherwise the court would proceed as Judge Wilson did in Studio Tekton Pty Ltd v Redland Shire Council.

1. The general public were never likely to enjoy access to the now deleted shop in the parking basement, so that the special situation in Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216, where a cinema was deleted from a development, is not replicated here.

1. It is not a determining consideration, but the court notes that two and half years have now elapsed since public notification, giving rise to the thought that there might be new local residents minded to make a submission, as well as some from early 2005 who had the opportunity to make submissions and did not do so, but might well have made one had they known what is now proposed for the terrace and roof levels.

1. The application ought to be dismissed, it appears.  However, I will withhold making any orders against the possibility that the applicants decide to proceed with the appeal on the basis of limiting changes to those which can properly be assessed as minor.