Meehan v Brisbane City Council

[2012] QPEC 26

[2012] QPEC 26

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3364 of 2011

PETER ROBERT MEEHAN	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 22/03/2012

ORDER

CATCHWORDS
Integrated Planning Act 1997 s 3.2.1(5)
Sustainable Planning Act 2009 s 350, s 820

Conditions appeal - parkland a small part of which was to be used as a road to serve a new subdivision was Crown land of which the Council was the trustee, in which capacity it signed an owner's consent - concern arose that the park should be regarded as State resource, that the development application was not properly made - appellant developer acted throughout in good faith - Department of Resource Management has now provided evidence of entitlement to State resource - relief granted - changes to the proposal adjudged minor change
HIS HONOUR:  The court makes an order in terms of an initialled draft which resolves a developer's conditions appeal in respect of the negotiated decision notice which emanated from the Council consequent upon a development application, essentially for a reconfiguration of a large site in Thiesfield Street and Ramada Place, Fig Tree Pocket.

The only parties in the proceeding are the appellant and the respondent Council.  There were some 35 submissions against the development proposal but no submitter elected to become a party. 

The court was asked to consider two issues today. The first concerns the original development application’s failing to comply with section 3.2.1(5) of the Integrated Planning Act 1997 (IPA) in respect of a State resource. In that regard, the court has been asked to - and is prepared to exercise its discretion now found in section 820 of the Sustainable Planning Act 2009 (SPA) favourably to the appellant developer.

The court is also asked to declare its satisfaction that changes to the development proposal constitute minor change according to section 350 of the SPA and is prepared to do that.

The court, in circumstances such as the present, ought to be cognisant of the submissions that were made against the development proposal.  I'm satisfied to proceed on Ms Nutley's summary of them.  None raised the State resource point although she confirms that one complained of the use of an existing park to accommodate part of a road giving access to some of the new lots proposed in the reconfiguration.  That park is owned by the Crown but the Council, under arrangements commonly encountered, is trustee of it for management purposes.

The appellant took the approach that the Council was an appropriate signatory for the requisite owner's consent - being aware that his proposed road used some parkland.  The Council provided the necessary signature. 

Further consideration [_] apparently has led those involved to the view that the Council, as trustee, could not give an owner's consent and that the park involved a State resource, the consequence of which, one discovers on consulting the IPA section mentioned and the relevant parts of the Integrated Planning Regulation, was that evidence of an allocation of the State resource or some equivalent was necessary for the application to be a properly made one which the Council could assess.

Unlike circumstances in some other situations, here, the appellant has been able to secure full cooperation from the State.  Exhibited to Mr Mann's affidavit is a letter of 30th of January 2012 from the Department of Environment and Resource Management which advises, "that the proposed development is consistent with an allocation of, or entitlement to, the State resource identified in schedule 14 of the Sustainable Planning Regulation 2009, as listed in the table below." 

The table refers the relevant land which is lot 900 on
SP 169042, 60 Ramada Place, Fig Tree Pocket.  There are precedents in the court for the retrospective validation of development applications in such circumstances.

Section 820, in subsection (3) specifically, contemplates that this may occur and it's relatively easy for the court to assist when the cooperation of the State authorities, as encountered here, is forthcoming.

Tidying things up has required the taking of additional steps to authorise the use of Lot 900, which is presently held on trust for park, to be used for road purposes.  An easement in gross has been granted and registered in that regard.

The appellant can be regarded as acting bona fide throughout. He has taken appropriate steps to regularise matters expeditiously. I agree with Ms Nutley's submission that no rights or entitlements of members of the public have been limited or adversely affected by reason of noncompliance with section 3.2.1(5) notwithstanding that as a theoretical matter if, in the IDAS checklist, the involvement of a State resource had been flagged rather than denied that may have been a signal to potential submitters to raise an argument that the Council could not assess the development application, being one not properly made.

It would bring discredit upon the system if court didn't regularise the development application, [_] forcing all involved back to the application stage. In those circumstances, it's appropriate for the court to declare that "for the purposes of section 3.2.1(5) of the IPA, the letter from the Department of Environment and Resource Management dated 30 January 2012 constitutes sufficient evidence of the appellant's resource entitlement in relation to the inclusion of lot 900 on SP 169042 in the development application” and to formally excuse the appellant for its failure to comply in full with the requirements of section 3.2.1.

The next aspect concerns changes to the proposal which, at the end of the day, the court declares are minor change within the meaning of section 350 of SPA. The proposal has existed in four different versions, all significant, the first being the plans which formed part of the development application; the second, the plans publicly notified; the third, the plans as approved by the Council in the negotiated decision notice and the fourth, plans now proposed.

Whether or not it's necessary for the court to consider the detail of all four, that's what has occurred.  The outcome of that exercise is that the series of revisions either singly or in any combination or collectively constitute minor change.

From the first version to the second, the change was to provide a new road at what might be called the back of the subdivision, which increased from 14 lots to 15, the road also providing access to a large expanse of parkland which will be added to the existing park.  The land is flood prone, at least in severe events such as those of January last year and it's been a concern of the Council to ensure that the plans for the reconfiguration provide for appropriate access.

The changes that have been made typically involve adjustment downwards of the size of the proposed lots.  The area of parkland has been substantially increased.  The provision of a road to provide an interface with the park for owners of a number of the lots and also for members of the public who'll have access to it seems to me a matter of detail, not something that changes the development.

In the approved plans, the arrangements thus settled upon were changed by the inclusion of easements which the Council required as part of ensuring access in times of emergency.  Those easements in a series constituted a kind of laneway running parallel to the new road I've just been referring to and there was a single one providing access to Sandringham Place for lot 1 over lot 2.

Once again, those matters of detail seemed to me not to disqualify the changes from being seen as minor nor would the inclusion in these approved plans of covenant areas for purposes of preserving vegetation considered valuable on three of the lots.

The final version follows a degree of success the appellant has had in discussing the easement conditions, which were ones appealed against, among others, with the Council.  The consequence is that two of those easements have been dispensed with, given that the new road proposed in version 2 provides the necessary access to the outside world for lots that might come under threat; also, the width of those easements has been reduced.  To balance the removal of two of them of the easements, one of them has been slightly enlarged to truncate a corner and accommodate movement which once would have been to the west and now will be to the east.

Only two of the covenant areas, another aspect of the conditions at the heart of the appeal, will remain.  Those appear to be documented in a more precise way in the currently proposed plans.

...

HIS HONOUR:  It hasn't been necessary to say anything about additional use of parkland for detention basins for storm water run off.  Such use, it seems, is made of the land already and, in any event, any evidence regarding State resources has now been provided. 

It shouldn't be thought that the court, in reaching its conclusions, has overlooked that aspect which was covered by Ms Nutley in her helpful submissions.  So, order as per initialled draft. 

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