Smits v Moreton Bay Regional Council
[2010] QPEC 31
•9 April 2010
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
| CITATION: | Smits & Anor v Moreton Bay Regional Council & Ors [2010] QPEC 31 |
| PARTIES: | Leonardus Gerardus Smits and Tendiris Pty Ltd v Moreton Bay Regional Council and State of Queensland and Clifford Allen Willmett and Pamela Annette Olson and Darryl Thomas Honor and Samford and District Progress and Protection Association and Peter James Edmiston and Susan Louise Edmiston |
| FILE NO’S: | BD1313/03 |
| PROCEEDING: | Application |
| ORIGINATING COURT: | Brisbane |
| DELIVERED ON: | 9 April 2010 |
| DELIVERED AT: | Southport |
| HEARING DATES: | 8, 10, 11 and 12 March 2010 |
| JUDGE: | Newton DCJ |
| ORDER: | It is declared that the proposed changes to the application the subject of this appeal are not a minor change for the purpose of section 4.1.52(2) of the Integrated Planning Act 1997 having regard to sections 350, 759 and 821(2)(b) of the Sustainable Planning Act 2009. |
| CATCHWORDS: | Change of application – whether minor – appeal under Integrated Planning Act – effect of transitional provisions of Sustainable Planning Act |
| COUNSEL: | Dr A J Greinke for the appellants Mr C L Hughes SC, with Mr A N S Skoien, for the respondent Ms E Azimi (solicitor advocate) for the co-respondent Mr D T Honor, third co-respondent by election (self-represented) |
| SOLICITORS: | Morgan Conley for the appellants Moreton Bay Regional Council Legal Services for the respondents Crown Law for co-respondent |
The land the subject of this interlocutory application comprises some 400.21 hectares of steeply sloping land located on the foothills of Mount Glorious.[1] The site is heavily vegetated with dense, wet forest and was, at the time of the lodgement of the development application[2], designated Rural in the Strategic Plan of the Transitional Planning Scheme for the Shire of Pine Rivers and located in the Rural Zone under the Transitional Planning Scheme.
[1] Lot 3 on RP208443 situated at Mount Glorious, Highvale.
[2] 12 July 2002.
The development application[3] sought a development permit for material change of use to enable a special residential development of the subject land involving:
[3] The development application identified D G Ogle as the development applicant.
(a) the creation of 207 residential allotments, with a minimum lot area of 4000m2, over approximately 148 hectares (comprising some 34 per cent of the subject site);
(b) a balance area of open space of approximately 292 hectares, including a link through the subject land from north to south;
(c) access for the residential development from Mount Glorious Road (at the south-east corner of the subject land);
(d) emergency access for the residential development via a track connecting to Harland Road (on the western boundary of the subject land).
The form of residential development originally proposed under the development application was the creation of residential allotments, access roads, and parkland generally in accordance with the concept plan prepared by Birt and Associates Pty Ltd dated June 2002 (the “Birt Proposal”).
There has been a history of protracted disputes between Mr Ogle and the current appellants, Tendiris Pty Ltd (“Tendiris”) and Mr Smits (“Smits”). The proceedings in this Court commenced with an appeal by Mr Ogle against the respondent’s refusal of the development application. Since then disputes have arisen as to the proper identification of the development applicant in respect of the development application. Those disputes arose from the circumstances of various dealings with the subject land and various dealings in interests in the subject land and the development application, both before and after the date of lodgement of the development application. Thus, a dispute between Mr Ogle and Tendiris resulted in Tendiris commencing its own (second) appeal against the respondent’s refusal of the development application. An attempt by Tendiris to substitute itself for Mr Ogle as the appellant in the original appeal ultimately resulted in Smits (a director of Tendiris) replacing Mr Ogle as the appellant in the original appeal.[4] On 15 July 2009 Robin QC DCJ allowed the respondent’s application for consolidation of proceedings. Thus the current appellants have now been finally identified as the proponents of the development application.
[4] That substitution resulted from an order made by the Court of Appeal following a successful appeal by Tendiris (in which Smits joined) against an order of this Court refusing leave to substitute Tendiris for Mr Ogle.
The current application was bought by Tendiris in 2006 seeking confirmation that a proposed change to the development application is a “minor change” within the meaning of that expression in section 4.1.52(2)(b) of the Integrated Planning Act 1997 (“IPA”), which was then in force. Tendiris has proposed that the development application be changed so that the subject land is developed by:
(a) the creation of a body corporate arrangement involving:
(i) the creation of 160 residential allotments, with a minimum lot area of 1,250m2 totally approximately 137 hectares;
(ii) four areas of common property totalling approximately 49 hectares, including a “community precinct”, a “conservation precinct”, fire management areas and access road;
(b) three balance open space allotments totalling approximately 255 hectares;
(c) access for the residential development from Mount Glorious Road (at the south-east corner of the subject land); and
(d) emergency access for the residential development via an access road connecting to Harland Road (on the western boundary of the subject land).
The changed proposal put forward by Tendiris involves development generally in accordance with the concept plan prepared by LandPartners dated 28 September 2006 (the “Tendiris proposal”).
The present Application requires the Court to determine:
(a) Whether the Tendiris proposal is a proposal (involving changes to the Birt proposal) which the Court has jurisdiction to hear and determine; and
(b) If the Court has jurisdiction to hear and determine the Tendiris proposal, whether any hearing in respect of the development application should proceed:
(i) on the basis of a single proposal (being either the Birt proposal or the Tendiris proposal); or
(ii) on the basis of alternative proposals (being either the Tendiris proposal or the Birt proposal).
The present application arises out of section 4.1.52(2)(b) of IPA which provides that the Court in hearing an appeal in relation to a development application:
“must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”
Both the proceedings in respect of the development application and this interlocutory application were brought during the currency of IPA. Accordingly, pursuant to section 819(2) of the Sustainable Planning Act 2009 (“SPA”), despite the repeal of IPA by SPA on 18 December 2009, both the appeal against the respondent’s refusal of the development application and this interlocutory application are to be heard as if IPA had not been repealed. However, with regard to an appeal under IPA, section 821 of SPA provides that section 4.1.52(2)(b) of IPA applies “as if the reference… to a minor change were a reference to a minor change as defined under [SPA]”.
Section 350 of SPA contains the definition of “minor change” in relation to development applications and provides as follows:
“350 Meaning of minor change
(1) A minor change in relation to an application, is any of the following changes to the application—
(a)a change that merely corrects a mistake about the name or address of the applicant or owner, or the address or other property details of the land to which the application applies, if the assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application;
(b)a change of applicant, if the assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application;
(c)a change that merely corrects a spelling or grammatical error;
(d)a change that—
(i) does not result in a substantially different development; and
(ii) does not require the application to be referred to any additional referral agencies; and
(iii) does not change the type of development approval sought; and
(iv) does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment.
(2) In deciding whether a change is a minor change under subsection (1)(d), the planning instruments or law in force at the time the change was made apply (the applicable law).
(3) Application of the applicable law does not stop a change mentioned in subsection (1)(d)(ii) or (iv) from being a minor change only because the applicable law, if applied to the application as originally made, would require referral to any additional referral agencies or involve impact assessment.”
In the circumstances of this interlocutory application is it necessary, then, for the Court to determine whether the Tendiris proposal is “a substantially different development” from the Birt proposal.
The explanatory notes to the Sustainable Planning Bill 2009 relevantly state:[5]
“In general terms, it is considered that this term should be given its ordinary common-sense meaning and will need to be considered on the facts of each case. It is difficult to establish black-and-white criteria, otherwise the test for whether an application can be changed becomes arbitrary and inflexible.”
[5]Sustainable Planning Bill 2009 Explanatory Notes p185.
Pursuant to section 759(1)(c) of SPA, the Minister has power to make guidelines as to the matters to be considered when deciding whether or not a change to a development application would result in a substantially different development. On 18 December 2009 the Minister issued Statutory Guideline 06/09 “Substantially different development when changing applications”. Under the Statutory Guideline a change may result in a substantially different development if the proposed change:
(i) involves a new use with different or additional impacts;
(ii) results in the application applying to a new parcel of land;
(iii) dramatically changes the built form in terms of scale, bulk and appearance;
(iv) changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity for the complex to service the intended catchment;
(v) removes a component that is integral to the operation of the development;
(vi) significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;
(vii) introduces new impacts or increases the severity of known impacts;
(viii) removes an incentive or offset component that would have balanced a negative impact of the development;
(ix) impacts on infrastructure provision, location or demand.
The respondent submits that relevant considerations in deciding whether or not a changed development proposal constitutes substantially different development will include:
(a) a comparison of location, size and intensity of both the individual components of the proposed development and the proposed development as a whole, as shown by the two proposals;
(b) identification of any additional potential impacts (and the consequent need for additional assessment) arising from the changes to the form of the proposed development;
(c) consideration of any additions to, or deletions from, the original form of the proposed development as a result of the proposed changes;
(d) contemplation of the likelihood that the change to the development proposal would have attracted a submission;
(e) consideration of whether or not the changes are such that members of the public ought to be given an opportunity to consider them and, if desired, make submissions about them; and
(f) the particular circumstances of a given development and the infrastructure associated with it (in this case the change from a more standard reconfiguration to a body corporate format with road infrastructure to be private rather than public).
In general terms the relevance of these considerations should be accepted although I note that the original application was for a material change of use only from rural zone to special residential zone and did not include an application to reconfigure the lot. To the extent, then, that consideration (f) above may imply that the application included an application for a reconfiguration of a lot, rather than merely a change of use, that implication should be disregarded. Furthermore, it should be noted that neither the definition in section 350 of SPA nor the matters in the Statutory Guideline require any consideration to be given as to whether or not the proposed change would be likely to prompt the hypothetical objector to make a submission.
The proposed changes to the development application were identified in the evidence of Mr Kay, a town planning consultant.[6] The total number of residential lots proposed has been reduced from 207 to 160. Whereas the Birt proposal had some 156 lots located in the central eastern sector of the subject land with the residue of the proposed lots located in the north-western sector, the Tendiris proposal locates all but five lots in the central eastern sector of the subject land. The lots not located in this sector are all in excess of 16 hectares. The Birt proposal included 207 lots with a minimum lot area of 4,000m2 and a maximum lot area of 1.8570 hectares, with the average lot size being 5,738m2. The Tendiris modification seeks a minimum lot size of 1,250m2 with the largest lot being 16.82 hectares. The average lot size will be 8,542m2. Whilst the minimum lot size has decreased the overall average lot size has increased and the overall number of lots has decreased. Mr Kay observes that the original application sought from the respondent development of the land as if it were in the Special Residential Zone which had a minimum lot size of 1,250m2. The decrease in lot sizes under the Tendiris modification still maintains that minimum.
[6] Exhibit 1, pp9-16.
The Ogle application had public open space located in large parcels in the southern, western and northern sectors of the subject site. These areas of Public Open Space amounted to 66.4 per cent of the total site area. This allocation, observes Mr Kay, is consistent with the requirements of clause 12(d) of Division 2 of Part 2 – Zoning of the Transitional Town Planning Scheme for the Shire of Pine Rivers. The Tendiris modification locates the open space in the southern half and the northern sector of the subject land. The southern and western sections of the open space have been enlarged due to the re-arranged layout of lots. The northern section of open space has been reduced as a result of locating the large allotments (all over 16 hectares) instead of the 51 lots proposed by the Ogle application for the north western sector of the subject site. Overall there is a reduction in the area of land to be dedicated as Public Open Space when the Ogle application is compared to the Tendiris application (66.36% to 57.89%).
The Birt plan identifies two rainforest communities on the subject site. Both are located in the central eastern section of the site and both were included partially in an open space designation on the Birt plan and partially covered by proposed residential lots. The Tendiris modification includes the entire southern rainforest community in the Community Purpose lot. The northern rainforest community is located at the rear of lots ranging in size from one hectare to 6.8 hectares.
The report of Mr Simonic, a consultant town planner, confirms the changes contained in the amended Tendiris plan. He notes that the reduction in the number of lots has not resulted in a substantial reduction of development area in that a number of larger lots have been provided that were not in the original application. The density of lots has, consequently, increased in the central portion resulting in greater visual impact and less space between the houses in that area.[7]
[7] Exhibit 9, p3, paragraph 2.1.1.
Mr Simonic considers that the Tendiris proposal results in a higher intensity of use within the central area of the site. It proposes 140 lots with areas less than the previously proposed minimum lot size of 4,000m2 This equates to 87.5% of the total number of proposed lots now being of a size smaller than 4,000m2.This higher intensity of use is seen by Mr Simonic as being contrary to the Conservation Areas intent of having any residential development less intense than Rural Residential, which traditionally has a minimum lot size of two hectares. In Mr Simonic’s view this will result in a higher concentration of houses and related structure in close proximity to each other further increasing the visual impact and loss of rural character.[8]
[8] Ibid, paragraph 2.1.1.
The reduction in open space by just over 37 hectares is seen by Mr Simonic as a significant change involving a reduction in the order of 12.7%. Connectivity of the open space is reduced with the residential lots separating the open space to the northern and southern portions of the site. Loss of connectivity is seen as reducing the effectiveness of the open space.[9]
[9] Ibid, pp3-4.
In relation to the Tendiris proposal including the creation of a body corporate titling arrangement, Mr Simonic considers that this would change the nature of the proposal from a residential development freely accessible to the general public to that of a private development.[10] Whilst I accept the observations made by Mr Simonic in relation to the changes to the layout plan, I am of the view that his comments in relation to the impact of the proposed development are particularly apposite. Mr Simonic considers that while the proposed Tendiris has fewer lots, and the average lot sizes are greater, the impact of the proposed development is still high, particularly in the central portion of the site where a higher density is proposed than was the case with the original application. Mr Simonic considers that the provision of smaller lots with a lower percentage of protected vegetation per lot will result in a change in character to that closer to a convention subdivision than was the case with the original application.[11] Mr Simonic contends that the average lot size as depicted on the Tendiris revised plans is misleading in that a number of larger lots (in excess of 16 hectares could be seen as rural lots) increase the average size. The average lot size of the residential character lots (those less than 16 hectares in size) is only approximately 3,503m2. Mr Simonic notes that this is substantially less than the average size of 5,738m2 in the original application and will change the character of the area from that originally proposed. In my respectful opinion the observations made by Mr Simonic as to the alteration of the character of the area as a result of the Tendiris proposal are most pertinent.
[10] Ibid, p4.
[11] Ibid.
The reduction in open space and connectivity between the open spaces and the more intense development together with the higher visual impact within the residential component as a result of smaller lot sizes and the relatively close proximity of houses will have the effect of changing the character of the area from that originally proposed under the Ogle application. I have formed the view that this alteration in the character of the area from what was originally proposed makes the proposal under the Tendiris plan a substantially different form of development. In coming to this view I acknowledge that the development in the Tendiris proposal remains a form of residential development and further that the number of allotments has decreased in that proposal while the average area of residential allotments has increased. However, I accept that the inclusion of the larger allotments in the Tendiris proposal means that comparisons of the average lot size and the total lot numbers do not accurately reflect change in the size and intensity of the proposed development. This is a product of a number of features of the Tendiris proposal:
(i) the minimum lot size has decreased in the Tendiris proposal from 4,000m2 to 1,250 m2;
(ii) the bulk of the development in the Tendiris proposal occurs by way of the smaller blocks being concentrated in the center of the subject land; and
(iii) the area remaining in public open space under the Tendiris proposal has decreased by some 40 hectares.
In addition to the matters discussed above, changes to the location of the proposed main access road in the Tendiris proposal also contribute to the conclusion that the Tendiris proposal is a substantially different development from the Birt proposal. In this regard I note that the location of the main access road in the Tendiris proposal is to be further to the southwest which involves additional stability and drainage issues. Because the proposed new location of the main access road involves construction through steeper terrain there will, in my view, be additional erosion and pollution risks in adjacent waterways. Furthermore connection of the main access road to the emergency access road closer to the Harland Road connection under the Tendiris proposal is likely to make the use of Harland Road by occupants of the proposed development far more likely.
In the result then I accept that the Tendiris proposal is a substantially different development from the Birt proposal. Accordingly, pursuant to section 4.1.52(2)(b) of IPA (as altered by section 821(2)(b) of SPA), the Court does not have jurisdiction to hear and determine an appeal concerning the merits of the Tendiris proposal. In these circumstances I order that the hearing of the appeal proceed on the basis of the Birt proposal.
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