Ryan v Brisbane City Council

[2005] QPEC 17

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ryan & Anor v Brisbane City Council & Ors [2005] QPEC 017

PARTIES:

SEAN RYAN and JULIA ANNE RYAN
Appellants
v
BRISBANE CITY COUNCIL
Respondent
And
SAM TORNATORE, MAUREEN ANDERSON and PAMELA ANDERSON
Co-Respondents

SAM TORNATORE
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
SEAN RYAN and JULIA ANNE RYAN
Co-Respondents

MAUREEN ANDERSON
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
SEAN RYAN and JULIA ANNE RYAN
Co-Respondents

PAMELA HANSEN
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
SEAN RYAN and JULIA ANNE RYAN
Co-Respondents

FILE NO/S:

951 of 2003
851 of 2003
885 of 2003
902 of 2003

DIVISION:

Planning& Environment

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2005

JUDGE:

Alan Wilson SC,DCJ

ORDER:

Declare that the proposed changes to the development application of the Appellants in Appeal No BD 951/2003 appearing in Ex SJC-2 to the Affidavit of Stephen Joseph Craven filed on 11 March 2005 are minor changes pursuant to s 4.1.52 of the Integrated Planning Act 1997

CATCHWORDS:

PLANNING LAW – CONSTRUCTION OF STATUTE – construction of Integrated Planning Act 1997, s 4.1.52 – whether changes to development application are minor changes

Integrated Planning Act 1997

Cases considered:
Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409
Baptist Union of Queensland v Brisbane City Council [2002] QPELR 523
Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61
Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216
Sinnamon v Miriam Vale Shire Council (2003 QPELR 195

COUNSEL:

Mr W Cochrane of Council for the Appellants in BD 951/2003, and the Co-Respondents in Nos BD 851/2003, 885/2003 and 902/2003
Mr T Trotter for the Brisbane City Council in all matters
Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters

SOLICITORS:

MacDonnells for the Appellants in No BD951/2003 and the Co-Respondents in Nos BD 851/2003, 885/2003 and 902/2003
Brisbane City Legal Practice for the Brisbane City Council in all matters
Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters

1. These applications concern a backpacker’s hostel at 55 Annie Street, New Farm.  In 2001 the proprietors, Mr and Mrs Ryan, sought approval to modify the existing premises.  That application was later altered but eventually, on 5 March 2003, Council issued a Negotiated Decision Notice granting partial approval.  Mr and Mrs Ryan have appealed against certain conditions attached to that Notice including, relevantly, some relating to the use and parking of a minibus. Mr Tornatore, Ms Anderson and Ms Hansen have appealed against the whole of the approval.

1. Earlier this year the Ryans presented the other parties with an amended car parking layout. Council accepts the changes in it are minor and that they can be considered in the appeal pursuant to s 4.1.52 of the Integrated Planning Act 1997 (IPA) which provides:

Appeal by way of hearing anew
4.1.52(1)  An appeal is by way of hearing anew

(2)  However, if the appellant is the applicant or a submitter for a   development application the court –
               …

(b)must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.

All of the co-respondents contend the changes are not minor. 

1. The IPA Dictionary, Sch 10 defines “minor change” (for purposes associated with development approvals, and not with specific reference to s 4.1.52):

“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 concurrent agency; 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 allow”.

1. The co-respondents identified the changes which, they asserted, were not minor as relating to proposed changes to the car parking layout at the front of the building, facing Annie Street; the introduction of parking spaces in a driveway running into the allotment, towards the rear; the removal of a car parking space near the rear, between two buildings; and, a consequential increase in the gross floor area (GFA), as a proportion of the area of the whole parcel, of about 1.5%, related to an outdoor recreation area which was increased by the removal of the lastmentioned car parking space.  During oral submissions the co-respondents also raised a matter concerning access to an area at the rear of the premises where rubbish bins are stored.

1. Particulars of the proposed changes are contained in the Affidavit of Mr Craven, a planning consultant[1] and, I accept, involve the substitution of five onsite car parking spaces, in place of three; the deletion of a disabled car parking space; variations in the amount of open space on the front apron, near the street, and an increase in the recreation area in the carport.  In accepting the changes are minor, Council[2] acknowledged they were the product of attempts to refine and improve the application, and did not introduce any new element likely to provoke an adverse submission from any other rational, potential objectors.

   [1] Filed 11 March 2005.

   [2]Through the written submissions of Mr Trotter of Counsel.

1. Written submissions were provided by Ms Anderson and Ms Hansen[3].  Many of their concerns were, however, directed towards issues which already arise in their appeals against the original development approval, and the submissions did not focus either upon the criteria mentioned in the Schedule 10 definition, or matters of scale and magnitude ordinarily raised by the use of a word like ‘minor’. 

   [3]Mr Tornatore made oral submissions

1. Ms Anderson showed a video film taken, it appeared, on various dates in 2000 and 2001 which showed activity in and around the hostel involving considerable levels of noise.  The only evidence relating to possible activity and effects which might have attracted additional submissions involved the stopping and parking of vehicles including minibuses in the street and, as Ms Anderson said in her written submission: concerning the change in parking arrangements on site:

…  This gives rise to unacceptable impacts on particular neighbours due to much activity in a small area of car parking.  The increased manoeuvring due to the difficulty associated with tandem parking and the high concentration of traffic on the driveway results in unreasonable impacts of noise on neighbours and will lead to greater on street parking.  It will increase “waiting time” on the street since there is no driveway left.

1. Although the definition in Sch 10 is specifically applicable to development approvals it has been accepted that it has some relevance in the interpretation of s 4.1.52: Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216, per Quirk DCJ at 217, where his Honour found support for that approach in IPA ss 3.2.9 and 3.2.10, dealing with changes that may be made to an application before it is decided by the planning authority.  As he said:

It would be reasonable to suppose that the legislature would intend a consistent approach to changes to any proposal during the approval process.

1. In Baptist Union of Queensland v Brisbane City Council [2002] QPELR 523 Brabazon QC, DCJ, after considering the judgments in Carillon Development (supra) and Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409 said, at 526:

I am content to accept that, by analogy the schedule 10 definition of “minor change” may often be a helpful one in considering a change at this stage of the application process; that is when the matter reaches this court. However, it is unlikely to be the only criterion. The court should not readily accept a limitation not imposed by Parliament. The test simply is, after all, that set down in section 4.1.52(2)(b); is the change only a minor change?

1. In Sinnamon v Miriam Vale Shire Council (2003 QPELR 195 Skoien SJDC said, at 198:

[21] Although the definition of the term “minor change” in Schedule 10 relates to development approvals, it is appropriate to take a comparable view of the concept of “minor change” in the interpretation of section 4.1.52; (Carillon Development Ltd v Maroochy Shire Council & Anor [2000] QPELR 216 at para [9]). The determinative question is whether the change to the proposal “would be likely to attract an adverse submission that was not provoked by the proposal in its original form”; (Carillon at para [14]), that is, whether a person who would not have objected to the original proposal would object to the changed application; (Colman & Ors v Brisbane City Council & Anor [2002] QPEC 003 at para [14]).

[22]  The matter is to be determined from the perspective of the members of the community to whom the right of objection extends; (Carillon at para [18]). It is fair to assume that the hypothetical potential objector would take a rational view of the matter; (Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 at para [11]). Recently it has been held that the Schedule 10 definition is unlikely to be the only criterion and that the test is simply whether the change is only a minor change (Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61, at [11]. Although a determination of the issue depends upon the merits of each case, the test is more likely to be satisfied if the change constitutes a “lessening in intensity” …

[23]  It is unlikely that any person who was interested in the development proposal in its original form but concluded that it was acceptable and so did not object, would consider that the two sets of changes to the proposal are such as to render it unacceptable and accordingly warrant an objection.  Thus, the effect of both alternations of the proposal is a minor modification only.

1. I respectfully adopt these conclusions. For the purpose of questions arising under s 4.1.52(2)(b) matters of degree and scale, referrable to the usual meaning of the words ‘minor change’ will be the primary ones and usually involve a comparison of what is now proposed, with the development application in the form in which it originally appeared before the court; and, in some instances, assistance can be gained, in that exercise, by considering the criteria referred to in the definition in Schedule 10.

1. Mr Craven’s evidence is that:

(a)   The addition of more car parking spaces on site is more likely to reduce, rather than increase potential objectors and grounds for objection (noting that original submissions included protests about the inadequacy of the parking layout in that it did not provide on-site turnaround facilities, and would increase the possibility of cars being parked in the street).

(b)   A disabled car parking space was not required under the Planning Scheme and its deletion allows for additional parking facilities (noting, again, that the lack of a disabled space did not attract a submission at the time of advertising).

(c)   The reduction of open space in the front area near the street, and increased parking there addresses a concern already raised by submitters (that guests could gather and create disturbance there).

(d)  Otherwise, the changed traffic layout at the front and in the driveway is more likely to have a beneficial effect in reducing on street parking;.

(e)   The deletion of one car parking space in the carport flanked by a recreation space does not add a new element to the proposal (which already shows a recreation space in the carport, albeit a smaller area).  The use of outdoor recreation areas is already a substantial issue in the appeals.

1. Although the evidence was, initially, unclear, nothing suggested an adverse impact on arrangements for the collection of rubbish or, certainly, any which would affect local residents.

1. A comparison of the changes sought in the development application and what is now proposed supports the conclusions put forward by Mr Craven.  In the scheme of things, the alterations present as ‘minor[4]’ within the usual meaning of the word. 

   [4]The word ‘minor’ is defined in the New Shorter Oxford Dictionary to mean, relevantly, “… comparatively unimportant or insignificant… small scale”.

1. This is also a case where by reason of the nature of the use, the history of the development application, the nature of the approval and the active involvement of submitters it is material to import and consider the Schedule 10 matters.

1. Nothing in the evidence presented by the co-respondents, or their submissions, suggested there is any likelihood the changes would be likely to cause a person to make a properly made submission; and, indeed, the opposite conclusion seems more probable.  A potential submitter would conclude that increased parking on the site will help alleviate potential congestion in the street.  The internal changes have some potential for altering uses at some parts of the site, but in ways which are quite unlikely to excite further submissions.

1. The proposed changes involve what might be described as tinkering with the development approval in a way which, whether measured by reference to the development approval itself, or its impacts on local residents, is in the scale of things minor. I am satisfied it is appropriate to declare the proposed changes are minor for the purposes of s 4.1.52.