Studio Tekton Pty Ltd v Redland Shire Council
[2006] QPEC 107
•10 October 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Studio Tekton Pty Ltd v Redland Shire Council & Ors [2006] QPEC 107
PARTIES:
STUDIO TEKTON PTY LTD ACN 083 220 437
Appellant/applicant
V
REDLAND SHIRE COUNCIL
Respondent
And
BETTY FOUNTAIN AND HERBERT FOUNTAIN, CLOVER TUCKER AND LEN TUCKER, TERESA KNAPP AND TIM KNAPP, GRAHAM JOSEFSKI AND MARGARET JOSEFSKI, MICHAEL PARSELL AND ROSEANNE PARCELL, GARRY BRELL AND LESLEY BRELL, RABY BAY RATEPAYERS ASSOCIATION AND JIM AND JULIE BETTS AND RAY POOLE, JOHN SNELL, PETER ROSS AND SUSAN ROSS, D COX
Co-respondents by Election
FILE NO/S:
BD 4057/2004
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
10 October 2006
DELIVERED AT:
Brisbane
HEARING DATE:
29 August 2006; written submissions received 5 September 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Declare that the changes to the development application contained in exhibit ACD-1 to the affidavit of Andrew Davis sworn 21 August 2006 are minor changes within the meaning of that term as it is used in s 4.1.52(2)(b) of the Integrated Planning Act 1997
CATCHWORDS:
PLANNING – PLANNING AND ENVIRONMENT – CHANGES TO DEVELOPMENT APPLICATION SUBJECT OF APPEAL – WHETHER MINOR CHANGES – relevant principles – meaning and effect of s 4.1.52, Integrated Planning Act 1997
Integrated Planning Act 1997, s 4.1.52
Butler v Kingaroy [2006] QPEC 093
Carillon Development Ltd v Maroochy [2000] QPELR 216
Cooroy Golf Club Inc & Anor v Noosa Shire Council (2001) QPELR 431
Grant v Pine Rivers Shire Council & Ors [2006] QPELR 112
Heilbronn & Partners & Ors v Gold Coast City Council [2005] QPELR 386COUNSEL:
M Williamson of Counsel for the appellant/applicant
Y Weber, Solicitor, for the respondent
G Brell, a co-respondent in person (for all co-respondents)
D Cox, a co-respondent in person (provided written submissions for all co-respondents)
SOLICITORS:
IPA Law for the appellant/applicant
Clayton Utz for the respondent
Co-respondents self-represented
This application concerns a proposed unit development at Raby Bay, and some changes the developer wishes to make to the original plans after the commencement of its appeal against Council’s refusal of the original development application. The developer asserts the changes are, overall, minor and should not prevent it proceeding with the appeal. Council takes a neutral position but the co-respondents, who opposed the original application and are active in the appeal, contend the changes are more than minor and should not be permitted.
The contest revolves around the nature of the changes themselves, and the meaning and effect of s 4.1.52(2)(b) of the Integrated Planning Act 1997, which relevantly provides:
4.1.52 Appeal by way of hearing anew
(1) An appeal is by way of hearing anew.
(2) However, if the appellant is an applicant… for the 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.
The expression “minor change” is not defined for the purpose of the section.
The development proposal involves the construction of a five storey building at Raby Bay Marina. Affidavits filed for Studio Tekton show Council’s original concerns focussed on matters of height, scale and bulk and although significant changes were made, those issues remained paramount in the eventual grounds for Council’s refusal, which included:
…
.the development is excessive in height and bulk in the context of the surrounding development
.the design of the proposal, in terms of its interface with Masthead Drive, is considered unacceptable from an urban design perspective
.the height and scale of the building is not in keeping with the established character of the locality and will have a negative impact on the character and visual amenity of the area.
A useful summary of the changes is found in an affidavit of John Loneragan, an architect and director of Studio Tekton. Those which were relevant to the argument here are:
.height remains at five storeys but has been reduced by 3.72 metres (save for a ‘lift overrun’)
. the roof structure has been ‘flattened’ and sun awnings added to add ‘architectural interest’.
I am satisfied that all of the other changes are plainly minor and these are the only ones which might be open to debate. At the time this appeal began the building showed a peaked, albeit relatively low, roofline atop a five storey building with some additional angled features creating interest and breaking the line of the roof. The proposed new plans delete these ‘architectural’ features.
The co-respondents submit that the flatter roof form does little to reduce the height and bulk of the building and, in fact, diminishes its ‘…acceptability in terms of blending in with the surrounding buildings’[1]. The submission is partly supported by an opinion from Mr Brown, a town planner. Although he does not specifically adopt the first argument, his views emphasise the second:
…
(f) The amended plans result in the deletion of an important architectural component of the development proposal which provides design benefits that balance negative aspects of the development. In this regard, deletion of the roof form creates an almost flat roofed architecture and is inconsistent with the character and appearance of the existing development on adjoining sites and in the vicinity of the subject site[2];
(g) The proposed changes result in a materially different development outcome to that refused by the Respondent. In this regard, the changes in building height, geometry and floor to ceiling heights of the building have the net affect of creating a building of a more squat appearance which adversely detracts from its visual relationship with adjoining three storey buildings and diminishes the streetscape amenity and character of the locality.
[1] Submissions on behalf of the co-respondents at 6.2
[2] Mr Brown’s affidavit p 4, para 9(f)
The court was able to conduct a simple comparison of the former, and new plans[3]. The inescapable conclusion is that the building now appears smaller and slightly less intrusive, albeit also more squat. Unsurprisingly Mr Loneregan held different views from Mr Brown and, during cross-examination, asserted that ‘…Council at the moment has actually approved a number of buildings in the area that have flat roofs’. He also claimed that the previous pitch was not major – about 20 degrees[4]. He argued, cogently, that the new design is not necessarily discordant with its surrounds[5]:
Raby Bay Harbour has a combination of roofs but if you have a look at that there’s a very strong parapet line with flat roofs behind that. Now, there are roofs that are added to the front which are not particularly steep pitches, 5 degrees or less if you have a look at it. If we talk about the adjoining development I think the roofs in that are approximately 15 degrees so in the immediate context you have a variety of ways of addressing roofs.
[3] Attached as Exhibits to Mr Brown’s affidavit
[4] T 25
[5] T 26
Other answers he gave in cross-examination made it clear the change in roof-line was directed towards the overall goal of reducing the height and bulk of the building[6].
[6] T 28
In Heilbronn & Partners & Ors v Gold Coast City Council[7] Rackemann DCJ observed:
[21] The power to modify is beneficial. The nature of town planning and, more specifically, the application assessment process, (including the appellate process) requires flexibility to respond to facts, circumstances and issues as they emerge and the discovery of new or better ways to implement a proposal. It is through the flexibility to modify proposals that a great many planning disputes are resolved in ways which are not only satisfactory to the parties but result in better development for the benefit of the wider community.
[7] [2005] QPELR 386 at 392
In Cooroy Golf Club Inc & Anor v Noosa Shire Council (2001) QPELR 431 Robin QC, DCJ (albeit while considering previous legislation) outlined the following principles in relation to a modification of the original application:
(a) a reduction or scaling down of a proposal is not necessarily a minor modification; it may remove benefits of a proposed development or otherwise change its impact in a way that could attract objections;
(b) a modification is of a minor nature if, looking at the new proposal broadly and fairly, the Court can conclude that it was not materially different from the original one;
(c) in determining whether a proposed amendment is minor, it is reasonable to ask whether it produced a materially different application from that which was advertised; and,
(d) whether an amendment was minor is a relative term. It must be addressed against the application in its unmodified state.
I was reminded that I said, in Grant v Pine Rivers Shire Council & Ors [2006] QPELR 112, at 116:
[19] The question arising here must of course be determined subject to an acknowledgment that this Court has no power to modify development to any greater extent than the Council, or an applicant seeking to change an application. As the legislative parameters operate, all are subject to the constraint that the change to an application is limited to one which can be characterised as a minor change: see, in relation to the Court, IPA s4.1.52(2)(b).
[20] Analysis of the authorities touching that question reveals a number of accepted principles. Matters of degree and scale will be the primary issues, considered in the context of the usual meaning of the words “minor change” with, perhaps, some assistance from the criteria referred to in the definition of that phrase in IPA, Schedule 10. The Court is required to assess whether or not the application will result in a materially different proposal, but will consider that question broadly, and fairly. An important question is whether the change would be likely to attract an adverse submission that was not provoked by the proposal in its original form. All of these questions are to be considered from the view point of ordinary members of the community to whom the right of objection extends.”
Judge Brabazon QC had occasion to consider the legislation very recently, in Butler v Kingaroy [2006] QPEC 093:
[18] S 4.1.52 speaks about ‘only a minor change’. That deceptively simple expression has given rise to some difficulties in application. Mr Hayden’s very helpful collection of the authorities on the point reveals that there are at least 17 decisions of this court. Each depends on its own facts. Two influential circumstances are identifiable in the cases. Are the changes likely to make the proposal more acceptable, or beneficial, to those who have objected? Are the changes such that they would be likely to cause a person to make an objection to the proposal, if the circumstances allowed? It can also be accepted that the court can often be generous in considering the application for change. (emphasis added)
The co-respondents’ continued opposition here means the first question postulated by His Honour in Butler must be answered in the negative, but that opposition must be considered from various aspects: is it advanced on acceptable basis, referrable to the proposed changes? What is the likely answer to the second question? Is the opposition reasonable and realistic, in light of the probable answer to that question?
Opposition, on new grounds, from parties who were submitters against the original proposal has the capacity to ignite doubt whether it can be said that the amended proposal would not provoke a new submission, but is not determinative. As Judge Quirk said in Carillon Development Ltd v Maroochy [2000] QPELR 216:
[18] Importantly, it is whether any further (and adverse) submissions at all might have been provoked by the removal of the cinema complex. Whether such submissions would involve objection sustainable in town planning terms is beside the point.
Objection was taken to some of the co-respondents’ affidavit material. Mr Brown’s affidavit, surprisingly for an experienced planner, actually advances an opinion about the issue to be determined, and I have had no regard to most of paragraph 9. More troubling is the attempt, through affidavits filed by the co-respondents, to present a form of petition from persons who say, on the face of the document, that they now object to the new form of the building and would make a submission about if the opportunity arose. None of this is sworn and the views expressed by the petitioners, while said on the face of the document to spring from plans they were shown, cannot be said to be informed. It the circumstances, this material is both objectionable and cannot be fairly categorised as evidence directly relevant to the second question posed by Brabazon QC, DCJ in Butler v Kingaroy.
The court must be careful in its consideration of what constitutes a minor change. When design issues have arisen in this forum, the cases have concerned both changes which attempt to ameliorate impacts, and those which are intended to improve a design. (An occasional irony is that a significant alteration to a proposal may make it more acceptable to submitters, but simply because of its scale expose itself to categorisation as a major, not a minor change.)
The changes under discussion here are, I am satisfied, intended to address issues previously raised by Council, and submitters – building height, bulk and scale. It is clear from the plans and drawings that both before and after the changes, this building presents as a large structure. The changes in roof form make no measurable difference to that perception. While it is conceivable changes of this kind could have that effect, they would need to be much more dramatic; that is not a fair description of the changes here, which are noticeable, but no more.
Notwithstanding Mr Brown’s views, I am not persuaded the redesigned building creates a materially different impact. It was, and remains, a large building – since the changes, it merely looks a little different. The impacts remain those a large building would have, and to say the changes have a significant effect on the level of its impact on amenity, streetscape and other factors of that ilk is an exaggeration.
Once that conclusion is reached, the notion that the changes might have provoked further submissions becomes improbable. In reaching that conclusion I am mindful of the efforts the co-respondents made to advance evidence to the contrary effect but it has to be said that, even if admitted, that evidence would not have encouraged a different conclusion. Ultimately it defies common sense to suggest that, in the context of a large building, a reduction in height and a change in roof line is likely, on the balance of probabilities, to bring forth further objections.
Finally, it is important not to lose sight of the wording of the section itself, which does no more than raise a question of degree: and here, in the scale of things, these changes can only reasonably be described as small. The alterations to roof form are not visually striking and do not dramatically affect the built form of what is, at all times, intended to be a large building. They cannot fairly be described, then, as changes involving deletion of an element which might have been perceived, by a rational objector, as ameliorating negative aspects[8]; rather, this is simply a case in which the changes affect the overall size and scale of the original proposal, to a comparatively minor degree. Once that is understood, they are entitled to attract the benefit of the subsection.
[8] As arose in Grant, and Carillon (supra)
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