Pro-active Developments Pty Ltd v Ipswich City Council

[2011] QPEC 52

[2011] QPEC 52

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3170 of 2008

PRO-ACTIVE DEVELOPMENTS PTY LTD	Appellant
and
IPSWICH CITY COUNCIL & ANOTHER	Respondents

BRISBANE

..DATE 25/02/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350, s 819
Integrated Planning Act 1997 s 4.1.52(2)(b)

Minor change where reduction in lot yield and some redesign of a subdivision introducing a park following resumption of parts of the site

HIS HONOUR:  The Court makes an order in terms of the initialled draft which has the effect of allowing this developer appeal against the deemed refusal of a residential subdivision.

The development application which had been made as long ago as the 25th of January 2005 was at that stage for a material change of use but for various reasons turned into one for reconfiguration of a lot.

That change wasn't picked up in the appeal documents at the time the appeal was commenced and orders have been made to regularise that.

The development proposal has changed and the Court's agreement to allow the appeal to proceed is dependant on the Court determining that the change is a minor change from the proposal as notified to the public.

Section 819(2) of the Sustainable Planning Act 2009 (SPA) requires the appeal instituted under the former legislation to proceed under it given that the appeal hadn't been decided by commencement of SPA on the 18th of December 2009.

In arrangements reminiscent of table tennis section 4.1.52(2)(b) of the Integrated Planning Act 1997 is said to apply in respect of a minor change but the definition of minor change is that in section 350 of the SPA.

The present arrangements for purposes of paragraphs (ii), (iii) and (iv) of subsection (1)(d) don’t require reference to any additional referral agencies or change the type of development approval sought or require impact assessment in any respect in which the original application didn't.

The potential argument revolves around paragraph (i) which requires that a minor change "not result in a substantially different development."  There's been some judicial recognition of statutory guideline 06/2009 which sets out factors which may result in a change being seen as creating a substantially different development.

There is a reduction in yield of residential lots from 35 to 22 which, from some points of view, might be seen as a change which, in terms of one of the guideline factors, "dramatically changes the built form in terms of scale, bulk and appearance."

What occurs here is a reduction in all of those features, although the 22 lots now to be produced for the market are all to be located within the same footprint as 19 lots in the original design.

That strikes me as an insignificant change in intensity, assuming that that's got something to do with scale, bulk and appearance.  The appellant has been driven to make changes by the resumption of the higher northern boundary of its site which abuts the Warrego Highway.  The resumption consists of two tranches, one in the northwest, one in the northeast.

A "balance lot", lot 23, is now proposed for the northern quarter or thereabouts of the remaining lot.  Ms Kelson took up my suggestion that the developer may be waiting to see what happens in the market and whether a demand for lots closer to the highway eventuates.

In addition lot 24, which is surrounded on three sides by the "balance lot" on the the western boundary of the site, there is a new park of 2,350 square metres, reflecting a useful open space facility not incorporated in the original proposal.

Reading the guidelines one is given a clear impression that a substantially different development has been approached on the basis that it is features which make it a development more intensive rather than those that reduce impacts and, for example, create more open space, which are of concern.

In recent days I've made clear my view, after thinking about it in numerous proceedings that reductions in impacts are unlikely to be assessed as producing a substantially different development although there's obviously still room for cases where what is taken out of a development was an important feature of it from the point of view of the community in general or those who might be interested in the development, in any event.  Order as per initialled draft.

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