The Royal Automobile Club of Queensland Limited v. Brisbane City Council & Anor

[2002] QPEC 5

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

The Royal Automobile Club of Queensland Limited v. Brisbane City Council & Anor [2002] QPEC 005

PARTIES:

THE ROYAL AUTOMOBILE CLUB OF QUEENSLAND LIMITED   

Appellant

And

BRISBANE CITY COUNCIL   Respondent

And

KEN DREW TOWN PLANNING PTY LTD
  Co-Respondent

FILE NO/S:

4544 of 2001

DIVISION:

Planning and Environment Court

PROCEEDING:

Preliminary Point

ORIGINATING COURT:

Brisbane

DELIVERED ON:

13 February 2002

DELIVERED AT:

Brisbane

HEARING DATE:

24 January 2002

JUDGE:

Judge Quirk

ORDER:

I rule that the co-respondent should be able to proceed to the hearing of the appeal on the basis of the amended application

CATCHWORDS:

Carillon Development Ltd v. Maroochy Shire Council (2000) QPELR 216

Integrated Planning Act s.4.1.52(2)(b)

COUNSEL:

Mr J Haydon for the appellant 
Mr M Rackemann for the respondent
Mr R Litster for the co-respondent  

SOLICITORS:

Clayton Utz for the appellant
Brisbane City Legal Practice for the respondent
Connor O’Meara for the co-respondent

1. This appeal is by an adverse submitter against the respondent’s planning approval of a proposal by the co-respondent for a golf driving range.  The matter comes before the court on this occasion for a ruling that the co-respondent should be able to have the appeal heard and determined on the basis of a proposal to which certain amendments have been made.

1. The relevant statutory provision is s.4.1.52(2)(b) of the Integrated Planning Act, the essence of which is that the court

“Must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”

1. For the purposes of this provision, “minor change” is not defined but, as was pointed out in Carillon Development Ltd v. Maroochy Shire Council 2000 QPELR 216, a sensible reading of the Act would suggest that the term “minor change” should be interpreted in a way comparable to the definition which appears in schedule 10 and which relates specifically to changes to a development approval. The thrust of this definition is, in the context of this matter, whether the change would:-

“Be likely … to cause of person to make a properly made submission objecting to the proposal if the circumstances allowed.”

1. Essentially, the changes which are to be considered here fall into the following categories:-

·     measures to avoid expressed concerns about the possibility of golf balls crossing the property boundary

·     some re-arrangement of the internal elements of the proposal which involve an increase in on-site car parking and the movement of the vehicular entry point some 30 metres to the south.  A relatively inconsequential re-location of a storage shed is also intended.

1. Counsel for the respondent correctly pointed out that, for the purposes of s.4.1.52(2), the impact of proposed changes must be judged by reference to “the application on which the decision being appealed was made”.  In other words, what is relevant in this sense is the form of the application as it was when the Council made its decision.

1. Some complexities have arisen in this case in that the proposal, as originally submitted, did not contain a great of detail about the fence.  It was described only as a “high fence”.  By way of a request for “further information” the Council sought to have this fence re-positioned a further 5 metres away from the appellant’s boundary and sought more detail of the height and sectional design of the fence. 

1. These details were provided in plan form and there appears to have been some confusion as to whether this material (while there was no doubt that it was provided to the Council) was, at all material times during the public notification period, present on the file for public perusal.

1. There is always a good deal of difficulty in situations of this kind.  While I do not for a moment suggest that anything of the kind happened here, it is obvious that it would not be difficult for a determined opponent of a proposal to contrive a situation where material on such a file “goes missing”.  I would be very reluctant in the absence of clear proof of some omission on the Council’s part and serious public disadvantage, to substantially prejudice a proponent (in no way responsible for the situation) by ruling that the public notification procedures were a nullity on that score.  I am not satisfied that this is such a case.

1. What is important here is that the fundamental nature of the proposal has in no way changed.  Alterations to the height of the fence are not only intended to help adjoining land-owners in regard to errant golf balls, but, in my opinion, are relatively minor.  Such fences are a common component of proposals of this kind and a difference in fence height of the order relevant here+ would be hardly discernible to someone not armed with surveying apparatus.

1. The internal re-arrangements would, in my view of the matter, be highly unlikely to interest any person not already opposed to the development and would have little if any impact on the areas amenity.  Residents to the east and south (and they would be affected if anyone was) have made it clear in material before me that they have experienced no concern in respect of these matters.

1. On the whole of the evidence I rule that the co-respondent should be able to proceed to the hearing of the appeal on the basis of the amended application.