Minamarc Pty Ltd v Gold Coast City Council

[2010] QPEC 146

[2010] QPEC 146

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3542 of 2009

MINAMARC PTY LTD	Appellant
and
GOLD COAST CITY COUNCIL	Respondent
and
THE DEPARTMENT OF MAIN ROADS	Co-respondent

BRISBANE

..DATE 17/11/2010

ORDER

CATCHWORDS

Sustainable Planning Act 2009, s 350

Minor change, because not "a substantially different development" where within a reduced development footprint a proposal expanded from 96 dwellings to 125 (30% increase) - number of bedrooms increases by 17% - although some construction increased from 3 levels to 4 in context, this did not "dramatically change the built form"

HIS HONOUR:  The parties join in approaching the court with an invitation to resolve this developer appeal against the council's refusal of its original development application by allowing the appeal and granting an approval on conditions.

The issue for the court today is whether changes to the proposal which are no doubt what has led to the change in attitude of the council, and perhaps the co-respondent by election as well, although that is uncertain, represent minor change.

I think Mr Ure, for the appellant, accepts that under the former test in section 4.1.52.2(b) of the Integrated Planning Act 1997 (IPA), it might have been difficult to support a contention that what is happening represents minor change.

The Sustainable Planning Act 2009 (SPA) in section 819 and following sections regulates the conduct of the appeal. Section 819(2) requires the court to decide the appeal as if the SPA had not commenced. However, by section 821, relevantly, minor change issues are now dealt with by reference to a definition in section 350 of the SPA.

The only relevant consideration is that referred to in section 350(1)(d) and, in particular, in paragraph (i) which lets in as minor a change that "does not result in a substantially different development."

There has been some discussion this morning about paragraph (iv) and whether anything about the change requires impact assessment.  If the original application did not involve impact assessment, it is of some comfort in a context like this to note that the most significant change, which is the addition of a third level of residential to the original proposal for two levels above parking in a series of buildings proposed, does not take the proposal out of compliance with standards in the local area plan in which the relevant benchmark is four storeys.

The material presented by the appellant today goes to some trouble to indicate that although that extra level of construction is proposed, the visual impact, so far as one's appreciation of bulk and scale is concerned, will be much attenuated, given that those taller buildings are to be constructed in very low lying parts of the site.

It is of some assistance to me today to have recently decided Auspacific Engineers v. Scenic Rim Regional Council [2010] QPEC 117 which, in many respects, involved circumstances reflected in today's appeal. In particular, in that case there was a one-third increase in the number of residential lots proposed, albeit on a reduced development footprint. Those factors are present here.

The site is located between the M1 Highway and the railway line, just to the north of All Saints Private School.  It is what might be described as an icicle-shaped block, gaining access at its point in the north.  In the impact assessment process which has occurred, there were supporting submissions from the neighbours on both sides, doubtless with the thought that success of the application would enhance their own development prospects.  There were no adverse submissions.

The land is low lying and flood prone, particularly in the south-east.  Consistently with that, the development footprint is withdrawn a considerable distance towards the north-west.  As indicated, the density within the reduced development footprint will be significantly increased.

Summarising, the original proposal of 96 dwellings which were to be 83 three–bedroom ones and 16 two-bedroom ones is now replaced with a proposal for 125 dwellings, being 69 three-bedroom ones and 56 two-bedroom ones.  The appellant's material focuses on the increase in bedroom numbers (which is a fair indicator of increasing impacts of the development on local services and infrastructure) as producing a less alarming increase in intensity of 17 per cent compared with something like 30 per cent on a more conventional measure of dwelling numbers.

The new arrangements have led to a reduction in the space which is required for parking.  In light of Auspacific Engineers the appellant need not have had the concern which was harboured about the 30 percent level.  This is no occasion to canvass again matters that have been examined in the reasons for judgment in Auspacific Engineers. 

What Mr Ure has picked out is the observation that nothing in the legislation or the guidelines which have been produced by the authorities for the assistance of practitioners makes intensification, which traditionally might have been a factor in a context such as this, relevant on its own.

Reference to the dot points in the guidelines raises the potential that the changes increase the severity of known impacts and they may have "impacts on infrastructure provision from a location or demand."  It is appropriate to use the 17 per cent measure there.

Nothing suggests that, in this context where the development is close to the Robina Town Centre, that there need be any concerns harboured in this respect.  The other dot point for consideration refers to a variation to a proposal which, "dramatically changes the built form in terms of scale, bulk and appearance."  The key term is "dramatically".  Mr Chenoweth's analysis amply establishes that such changes as will be observable from the general location could reasonably, will be categorised as dramatic. 

...

I will conclude by noting the gravamen of Mr Ransom's summary of the changes which increase the number of dwellings from 96 to 125. Those originally consisted of 64 attached dwellings and medium density detached dwellings (townhouses or duplexes) and 32 apartments.  The 125 will be 13 attached dwellings and medium density detached dwellings (townhouses or duplexes) and 112 apartments.

The number of bedrooms increases from 272 to 319 and the maximum building height from two storeys to four storeys being three storeys with parking below on a podium.  The increase in maximum RL achieved is 2.66 metres.  Site coverage accounted for by the buildings reduces from 19.9 percent to 13.1 percent; communal open space increases from .1818 hectares to .128 hectares; public open space remains the same at about 1.3 hectares; car parking spaces are reduced from 260 to 243.  The setbacks remain the same except for the "rear boundary" setback which increases from 81.4 metres to 185 metres.

The court is satisfied that the changes proposed do not result in a substantially different development and, accordingly, makes the order it's invited to make by initialling the proffered draft.

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