Schutz Holdings Pty Ltd v. Gladstone Regional Council

[2011] QPEC 51

[2011] QPEC 51

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 58 of 2011

SCHUTZ HOLDINGS PTY LTD (ACN 008 006 835)	Applicant
and
GLADSTONE REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 25/02/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 367, s 369, s 374, s 376

"Permissible change" in earlier court approval of a reconfiguration - increase in lot yield from 131 to 141 on reduced footprint - sole submitters were immediate neighbours - they were not made parties and had not joined in the appeal that culminated in the approval, which was taken to have considered their expressed concerns - the changes now sought would tend to address some of their concerns

HIS HONOUR:  On the 9th of June 2010 in Appeal 2606 of 2009 Judge Rackemann effectively brought about the issue of a development approval for reconfiguring a lot and operational work for clearing native vegetation for a site at the corner of Kirkwood Road and Glenlyon Road, Glen Eden, Gladstone.

...

HIS HONOUR: The developer is now the applicant in an originating application seeking a change to the development approval. As the court was the entity which issued the approval section 369 of the Sustainable Planning Act 2009 provides the authority that is needed for the approval to be changed.

It can be changed provided the circumstances come within section 367 which defines a permissible change. In particular, in subsection (1), the paragraph which is likely to be of most significance calls for enquiry as to whether the change would "result in a substantially different development."

The subsection is also concerned that the changed application wouldn't require referral to additional concurrence agencies or render impact assessable a proposal in a respect in which the proposal previously was not.  And it's concerned whether the change might, in the "responsible entity's" opinion cause someone to make a submission who had not before - or perhaps cause someone to make a different submission and also concerned whether any prohibited development would arise.

The only concerns here really relate to the potential submission aspect. There was a single submission from Helen and Pierre Fermier against the original development application. The provisions I've referred to may be seen as requiring the court to consider their submission and section 374(1)(c) expressly does so.

The changes, the court understands, are brought about by the resumption of a large swathe of the site along the north-eastern boundary which has a south-easterly to north-westerly orientation.  That will permit the widening of Kirkwood Road but may well have been rendered appropriate chiefly by drainage considerations.

The Council and the applicant are in agreement that it is possible and suitable to increase the lot yield in the subdivision from 131 under the arrangements approved by the court to 141 now, a 7.6 per cent increase.

That will be achieved by a slight reduction in the areas of the lots which will range now from 681 square metres to 11074 square metres which happens to be almost a quarter of an acre.

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HIS HONOUR:  There's also been a redesign of the internal road system.  Instead of exhibiting a heart shaped loop pierced by three long cul de sacs there'll now be a double loop, the two loops sharing the road at the top of the heart and but one smaller cul de sac from outside the site.  The change would not be noticeable.  The other change in respect of the road is to extend the road running parallel to the western boundary of the site to the south so that it provides a connection with the private land to the south which happens to be the Fermiers.

Their area is about a tenth of the area of the site.  It was a Council requirement to provide for that connection which necessitated the sacrifice of one lot.

The Fermiers' submission reveals unhappiness at the loss of rural amenity.  There appears to be an acceptance of quarter acre blocks by the Fermiers on the site.  They expressed unwillingness or unhappiness at having a large number of the new 134 houses anticipated begin against their boundary and, in particular, close to their own house.

They expressed a desire to have an eight foot fence along the boundary to preserve their privacy against 14 new properties which "stare into our back yard with six or more having a view directly inside our house.  Our complaint is about suburban type noises, of loud music, barking dogs, lawnmowers, et cetera, traffic fumes, dust and other nuisances occasioned by construction of housing."

Traffic issues were complained about and also a threat to the quality of water and, perhaps, the quality of water entering the dam on their property.

As it happens, the loss of one residential allotment from the proposal along the boundary produces some change the Fermiers might welcome but I accept an insignificant one.  Although I've read carefully what they have to say, it has no relevance today.  Judge Rackemann's decision has, effectively, disposed of the submitter's points and, presumably, after appropriate consideration.  They didn't elect to become parties in the appeal which his Honour determined.

What matters today is that nothing is sought which would worsen their situation.  Another aspect brought to the court's attention is that the Chief Executive, required to be served with notice of the appeal under section 456(8) of the SPA, was not served in time.  Section 497 allows the court to extend time.  The court could comfortably do that in the knowledge that the Chief Executive has been served late and not elected to join in the appeal within the statutory period allowed after there was notice.

Exhibit 3 today is the notice which the applicant has prepared for the purpose of assisting the court to carry out the unusual obligation cast on it by section 376 of giving written notice of its decision. A practice has developed of the Registrar undertaking that responsibility. It's of assistance to have a document provided such as Exhibit 3.

The court makes an order in terms of the initialled draft. 
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HIS HONOUR: I've added in Paragraph 4, "The Court approves Exhibit 3 as a form of notice to be sent out by the Registrar for purposes of section 376 of the SPA.

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