Stephen Family Pastoral Pty Ltd v Logan City Council

[2024] QPEC 43

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Stephen Family Pastoral Pty Ltd v Logan City Council & Ors [2024] QPEC 43

PARTIES:

STEPHEN FAMILY PASTORAL PTY LTD

ACN 087 776 369

(Appellant)

AND

LOGAN CITY COUNCIL

(Respondent)

AND

FABCOT PTY LTD

ACN 002 960 983

(First Co-Respondent by Election)

AND

LOGANVIEW ROAD NORTH PTY LTD

ACN 616 370 597

(Second Co-Respondent by Election)

FILE NO/S:

4590 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 October 2024, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

8 – 9 October 2024

JUDGE:

Everson DCJ

ORDER:

APPLICATION DISMISSED

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – application in pending proceeding seeking to make changes to a development application – lack of certainty in scope of application

CASES:

LEGISLATION:

Planning Act 2016 (Qld)

COUNSEL:

D Gore KC and W Macintosh for the Appellant

J Lyons for the Respondent

C Hughes KC and B Rix for the First Co-Respondent by Election

M Batty and M Rodgers for the Second Co-Respondent by Election

SOLICITORS:

HWL Ebsworth for the Appellant

Colin Biggers & Paisley for the Respondent

Mills Oakley for the First Co-Respondent by Election

Connor O’Meara for the Second Co-Respondent by Election

1. This is an application in pending proceeding seeking to make changes to the development application giving rise to the appeal. The basis for the application is set out in the following terms: 

   HWL Ebsworth Lawyers...applies to the Planning and Environment Court at Brisbane at its next sittings for the following orders: 

   (1)  An order that the development application the subject of the appeal (Development Application) be changed to include the proposed changes described in the affidavit of Natalie June Rayment, sworn 21 August 2024 (Proposed Changes).

2. The affidavit in question extends to 38 paragraphs. Ms Rayment deals with the proposed changes in paragraphs 18 to 24 inclusive. In paragraph 20 she states: 

   In particular, I’m instructed that the Appellant wishes to change the Development Application so that (Proposed Changes):-

   (a) the maximum GFA of any District Centre that can be established on the Land as code assessment is limited to 6212 m²;

   (b) the site access along School Road is separated a minimum of 120 metres from the Chambers Flat Road/School Road intersection;

   (c) the future left-in access from Chambers Flat Road is removed; and

   (d) the Proposed Development takes account of the extent of the Road Resumption Area.

3. Written outlines were filed and relied upon by each of the parties. The applicant initially provided a written outline which extended to 18 pages and annexed three plans of development. These were described as annexures 1, 2 and 3. Annexure 1 is the plan which was lodged with the development application. Annexure 2 is a plan that was the subject of a previous minor change order by her Honour Judge Kefford, pursuant to a previous application. Annexure 3 was the plan of development, which I was told at the time was the subject of the application before me. 

4. The difficulty is that each of these plans is said to be indicative only in the context of the application being one for a preliminary approval for a material change of use, including a variation request, to enable the creation of a District Shopping Centre precinct.

5. Unfortunately, while the plan the subject of the order of Judge Kefford was incorporated into the minor change order, it is still stated by the applicant to be indicative only. 

6. Similarly, the plan the subject of this application, which provides a basis for significant amounts of detailed traffic engineering evidence that has been placed before me, is said to be indicative only. 

7. After the hearing, which included oral evidence from the applicant’s traffic engineer, Mr Rytenskild, and the applicant’s town planner, Ms Rayment, today it is submitted that the scope of the application may well not extend to any of the matters referred to in paragraph 20 of Ms Rayment’s affidavit, other than subparagraph (a). I am told that I could still have regard to the plans in determining whether or not the changes the subject of this application come within the definition of a minor change in the Planning Act 2016. 

8. It is common ground between the parties that the only relevant part of the definition in Schedule 2 of the Planning Act called up by the application is whether the changes result in a substantially different development.  Each of the respondents has raised issues relating to a lack of certainty with respect to the scope of the application. This is only confirmed by the unclear position adopted by the applicant in its submissions this morning. 

9. I am simply not in a position to exercise my discretion, as I do not know what the scope of the application is and I do not know what the status of the plans which have been placed before the court are, with the apparent exception of the plan which was the subject of the order of Judge Kefford which authorised the making of a previous minor change to the development application. 

10. It is not appropriate that I am left in a state of considerable uncertainty at the conclusion of the hearing as to what the scope of the changes are, what the scope of the proposed development is and what I am supposed to exercise my discretion in respect of. 

11. I dismiss the application.