Martin v Whitsunday Shire Council

[2001] QPEC 12

State Reporting Bureau

Transcript of Proceedings

Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.

REVISED COPIES ISSUED State Reporting Bureau

PLANNING AND ENVIRONMENT COURT

Date: 8 / 3 / 01

JUDGE C F WALL QC

No 374 of 2000

MICHELLE MARTIN and REX KERGER and
EVELYN KERGER and GLENABBEY PARK PTY LTD
and TOM RIDEOUT and MARIE ABRAHAMS
and ADRIAN ABRAHAMS and FAY DWYER
and CHARLES DWYER and GEORGE TERRY WELLS
and BRIAN PRICE and JILLIAN PRICE And
FRANK COVINO and FILOMENA COVINO and
JOHN ROBERT WALFORD and JUDITH ANN WALFORD
and DEAN SCHUTZ and KAREN SCHUTZ and
KEVIN CURTIS and ANNE CURTIS and
KATE IRVING and JAMES GRAHAM BUTLER and

MAURICE LONG and JAN LONG and GREG BROWN and DOROTHY McALLISTER and ROBERT JEWELL and ELENOR JEWELL and JOHN DANIEL TANNOCH	Applicants
and
WHITSUNDAY SHIRE COUNCIL	First Respondent
and
BILL SHARPE and SHARPE DEVELOPMENT
GROUP PTY LTD	Second Respondent
TOWNSVILLE ..DATE 07/03/2001
JUDGMENT
07032001 T2-3/DLD M/T TSVDC8840 (Wall DCJ)	1
HIS HONOUR: In these proceedings, the applicants challenge the validity of the Council's approval of an application by the Second Respondent to change a condition of a development
approval under section 3.5.33 of the Integrated Planning Act.

The applicants contend that the Second Respondent's

application to the Council gave rise to assessable
development.

The relevant development approval is contained in a negotiated decision notice dated 15 December 1999. The approval was for a material change of use of premises for 49 units and a cafe at 6 Harper Street, Airlie Beach. Condition 1.1 required development to be undertaken in accordance with specified plans as modified by the approval. Condition 1.1(f) was as follows:

"1.1(f) The building shall be lowered in height by about
one metre, the maximum building height shall be as

follows:

(i) the eastern building RL43.6 metres AHD
(ii) the western building RL49.5 metres AHD."

On 28 January 2000 the Second Respondent made application to the Council "to modify the requirement imposed by the condition 1.1(f)" to increase the maximum height of each building. On 2 October 2000 the Council, acting under section 3.5.33 of the Integrated Planning Act, approved the application and changed condition 1.1(f) so that it now reads:

2  JUDGMENT

07032001 T2-3/DLD M/T TSVDC8840 (Wall DCJ) 1

"1.1(f) The maximum building height shall be as follows:

(i) the eastern building RL44.83 metres AHD (ii) the western building RL44.45 metres AHD in accordance with revised Elevation Plan GA09 North

Elevation."

The height changes do not involve any increase in floor area, storeys or the number of units in the approved development. The maximum building height is a reference to the highest point on the roof of each building. The effect, on average, is to slightly lower the height of the eastern building and increase the height of the western building by 1.1 metres. The change was necessitated by "structural engineering requirements". The effect of the increased heights on the view from five units in Toscana Village Resort, situated behind the subject development, is shown in the photographic exhibits to the second affidavit of Timothy Brazier. There will be a greater loss of view from those units.

All parties effectively agreed that if the changed condition effected "a material change in the intensity or scale of the use of the premises" (see paragraph (c) of the definition of "material change of use of premises" in section 1.3.5 of the Integrated Planning Act) that would give rise to an

"assessable development" for the purposes of section
3.5.33(1)(b). It is clearly not the "start of a new use of
the premises" within paragraph (a) of the definition or within
paragraph (b).

3  JUDGMENT

07032001 T2-3/DLD M/T TSVDC8840 (Wall DCJ)	1
The applicants submit that the height changes increase at least the scale of the building and cause "a materially higher development introducing an enlarged factor which may cause interference with residential amenity and which would prompt new or different or further objections". Reliance was placed on a decision I gave on 1 March 2000 in Rose Bay Developments Proprietary Limited v. Bowen Shire Council and Another, unreported, Townsville.
In considering the application, the Council had regard to the matters specified in section 3.5.33(7). Two original submitters, who are also present applicants, have sworn affidavits filed on the present application, effectively relying on previous submissions made by each objecting to loss of views and other matters. The majority of their loss is the result of the original approval.
The Second Respondent submits that there is no material change in intensity or scale of the originally approved development.

It was conceded in the application for the change of

condition, that "the position would be different if the
increase in height was to add dwelling units. The addition of
further units is capable of constituting a material change in
the intensity or scale of multi-unit use, but the proposed
change to the condition 1.1(f) seems to be incapable of being
so characterised".

4  JUDGMENT

07032001 T2-3/DLD M/T TSVDC8840 (Wall DCJ)	1
Mr Hinson SC conceded that an increase in height could result in an "assessable development", but submitted that it did not do so in the present case. He conceded that where one draws
the line is "a difficult question" but submitted that in the present case, it is not to be drawn at 1.95 metres which is the maximum building height increase for the western building, "but at some point over that height the line would be drawn".
Whether a change involves a "material change in the intensity or scale of the use of the premises", is a question of fact and degree, depending on the circumstances of each case. All parties agreed that a "useful guide" in considering this issue, is whether the proposed change "would be likely to attract an adverse submission that was not provoked by the proposal in its original form" (Carillon Development Limited v. Maroochy Shire Council and Others [2000] QPELR216 at 218) notwithstanding that such a consideration is not, in such terms, imported into section 3.5.33 as it is, for example, in sections 3.5.24 and 3.2.10. I agree that this factor may be a relevant consideration in particular cases, depending on the nature and extent of the proposed change of condition, but it should not be conclusively determinative of the issue because that issue, in the end, involves a consideration of the materiality of the change in the intensity or scale of the use originally approved. Like the position in the Rose Bay case, it is but one of a number of considerations one may have regard to in considering this issue.

5  JUDGMENT

07032001 T2-3/DLD M/T TSVDC8840 (Wall DCJ)	1
Mr Hinson submitted, relying on Pearson and Another v. Leichhardt Municipal Council [1997] 93LGERA206, that the test should be whether a person would be affected to an extent that they would make a reasonable submission which would have a reasonable prospect of being upheld. I am not sure that the test should be so restricted. Pearson was determined on different legislation, involving a consideration of possible prejudice to an initial objector. In any event, it is not necessary for present purposes to decide whether that is the approach which should be taken in Queensland to an initial submission or objection. In the present case, I agree with Mr Hinson, that no more or different adverse submissions would have resulted, had the proposed change been included in the original proposal.
Mr Hinson agreed that another relevant consideration is "whether the form is so different as to require separate assessment". This involves a consideration of the degree and extent to which the use of the premises is or would be changed by the new proposal. See Rhema Management Services Proprietary Limited and Another v. Noosa Shire Council [2000] QPELR15 and Rose Bay Developments Proprietary Limited v. Bowen Shire Council and Another, supra.
In the present case, the height only of the approved development is increased by the changed condition, everything else remains the same. There is no substantial difference,

6  JUDGMENT

07032001 T2-3/DLD M/T TSVDC8840 (Wall DCJ)	1
character. It is not a substantially different development.
the concept is the same and the building is of the same units behind the development, will be further adversely affected with a consequent interference in residential amenity, but in the present circumstances, that is not, in my opinion, sufficient to warrant categorisation of the change as assessable development. Basically, the development is the same, except that it is slightly higher.
The proposed change does not, in my view, materially change the intensity or scale of the development. It is within section 3.5.33 and does not result in an assessable development. In my view, the approach taken by the Council has not been shown to be wrong. Considering the proposed change in terms of its measurable relativity with the approved development, taking into account matters such as size, dimension, degree and opposition, I do not think the Council was in error in concluding that the change fell within section 3.5.33. In these circumstances, I decline to make the declarations sought. The application will be dismissed.

-----

7  JUDGMENT