Transequator Pty Ltd v Brisbane City Council

[2007] QPEC 37

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Transequator Pty Ltd v Brisbane City Council & Ors [2007] QPEC 037

PARTIES:

TRANSEQUATOR PTY LTD

Appellant/applicant

V

BRISBANE CITY COUNCIL

Respondent

And

ALEXANDER SNEYD

First Co-Respondent by Election

And

RAY PUNTER

Second Co-Respondent by Election

FILE NO/S:

3446/2004

DIVISION:

Planning and Environment

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

24 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 Declare the changes to the development application proposed by the appellant 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

2 Order that the appeal be allowed to proceed on the basis of the amended plans included in exhibit DS-1 to the affidavit of Daphne Stephens filed 5 April 2007

CATCHWORDS:

PLANNING – PLANNING LAW – change to development application subject to appeal – whether ‘minor change’ within meaning of s 4.1.52(2)(b) of Integrated Planning Act 1997 – factors relevant to discretion

Integrated Planning Act 1997, s 4.1.52(2)(b)

Cases considered:
Grant v Pine Rivers Shire Council & Ors [2006] QPELR 112
Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386
Lascorp Development Group v Burnett Shire Council [2007] QPEC 024
Macquarie Leisure Operations [2007] QPEC 020
Simmons v Esk Shire Council [2006] QPELR 570
Studio Tekton Pty Ltd v Redland Shire Council [2007] QPELR 174

COUNSEL:

M Williamson of Counsel for appellant/applicant
K Johnston, Solicitor, for respondent
Co-respondents by election in person

SOLICITORS:

MacDonnells Law for appellant/applicant
Brisbane City Legal Practice for respondent
Co-Respondents self-represented

[1]      The appellant seeks to alter the original development proposal which is already the subject of the appeal, without prejudicing its rights to continue that appeal.  The outcome of the application hinges on whether the changes are “minor” within the meaning of that word in s 4.1.52 of the Integrated Planning Act 1997 (IPA).  The section, and its predecessor, has been extensively considered by the Court.  It 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 the applicant or a submitter for a 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.

[2]      Certain principles of general application in matters of this kind may be distilled from the extensive case law which has now grown around the provision:

(a)   it is important not to adopt a test other than that stipulated in the statute. The phrase ‘only a minor change’ is a simple and straightforward one which should be construed principally by reference to matters of scale and degree, and broadly and fairly[1];

[1]Grant v Pine Rivers Shire Council & Ors [2006] QPELR 112; Simmons v Esk Shire Council [2006] QPELR 570; Macquarie Leisure Operations [2007] QPEC 020

(b)   it is attractive to adopt a generous approach to the interpretation of the limits within which an application may be changed[2];

[2]Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386, at para [22]

(c)   it must, however, be remembered that the matter comes before the court by way of an appeal and the court must not deprive the proceedings of that character by usurping the function of the decision-maker at first instance[3];

[3]Macquarie Leisure (supra) at para [25]

(d)  the question may be determined with some assistance from the criteria referred to in Schedule 10 of IPA[4];

[4]Macquarie Leisure (supra) at paras [21] and [22]

(e)   the possibility that the changes proposed are beneficial or ameliorative may be relevant to the third arm of the definition of minor change in Schedule 10, (c) of IPA[5]; but the fact that the changes proposed may be characterised in that way does not automatically overcome the jurisdictional hurdle that the changes must be limited to ones which are only minor[6];

(f)   for the purpose of the exercise it will be useful in some cases to distinguish between the salient, and incidental, features of the original proposal.  Modification of a salient feature, if small or inessential, may amount to no more than a minor change.  On the other hand, modification of a salient feature which cannot reasonably be seen as small or inessential is likely to be more than a minor change[7];

(g) the dictionary definition of ‘minor’ includes unimportant, or insignificant. The use of the word ‘only’ in s 4.1.52(2)(b) of IPA might be taken as an indication that what is contemplated is something relatively unimportant[8].

[5]Macquarie Leisure (supra) at para [28]

[6]Macquarie Leisure (supra) at para [33]; Studio Tekton Pty Ltd v Redland Shire Council [2007] QPELR 174, at p177, para [17]

[7]Lascorp Development Group v Burnett Shire Council [2007] QPEC 024, at para [4]

[8]Lascorp (supra) at para [5]

[3]      Here, the original development application involved land at 46 Bleasby Road, Eight Mile Plains containing a little over 4,000 m².  It sought a development permit for a material change of use for a multi-unit dwelling containing 16 units; another permit for reconfiguring a lot (a community title sub-division dividing 1 into 16 lots, with common property under a community management scheme); and, a preliminary approval to carry out relevant building works.  The 16 dwelling units were to be constructed in a way which would produce 12 two storey, 3 bedroom detached dwellings, and a block of 4 attached dwellings containing 2 and 3 bedroom units.  The proposed structures did not exceed 8.5 m in height.

[4]      Relevantly, vehicle and pedestrian access was to be obtained from Bleasby Road by way of a single, private, centrally located internal access road forming part of the common property.  Thirty-seven car parking spaces would be provided.  The total gross floor area was 1,577.2 m², or 39% of the total site area.

[5]      As part of the application process the appellant was required to prepare a Neighbourhood Structure Plan, demonstrating how the land could be developed within the overall context of the larger parcel bounded by Bleasby Road, and Warrigal, Logan and Padstow Roads which are described in the relevant planning documents as an Emerging Community Area. 

[6]      It is fair to say that in large part the success or failure of the application turned on Council’s view of the Neighbourhood Structure Plan.  It was an important feature of Council’s subsequent Information Request[9], which sought more information and detail as to how the development would integrate with the potential development in adjoining sites; and, that the applicant show how the future local road network would provide good pedestrian access and connectivity with adjacent established residential areas, and existing and future residential development.

[9]23 April 2004

[7]      Council subsequently refused the application.  Its Decision Notice of 7 September 2004 gave reasons which included assertions that the proposal was contrary to a number of Desired Environmental Outcomes, and Strategies for the city; that Council did not support the proposed Neighbourhood Structure Plan and, as a consequence, the proposal was contrary to the provisions of Desired Environmental Outcomes for the Emerging Community Areas; and, other grounds referrable to its Structure Planning, Residential Design/Low Density, Character, Low-medium Density, and Sub-division Codes.

[8]      The principal changes now proposed involve provision of a public road (in contrast to the original, internal, private access road) which, it is said[10], will better contribute to the orderly development of the surrounding Emerging Community area; an increase in the number of dwellings from 16 to 18; and, an increased gross floor area from 39% to 44% (i.e., 203 m²).

[10]Affidavit of Daphne Stephens sworn 5 April 2007

[9]      As illustrated[11], changes to the physical layout have been made to accommodate the altered lot shape after the provision of the public road.  They involve, then, an additional benefit to the public generally (a new public road) without, the evidence indicates, any additional or unacceptable impacts.  Indeed, the new layout has the added advantage of delivering a benefit to adjoining properties to the east, and west, through increased setbacks.

[11]Affidavit of Daphne Stephens sworn 5 April 2007

1. Those properties to the east and west are owned by each of the Co-respondents by Election.  The other property potentially affected, to the south, is a shop and plant nursery.  The owner or operator did not make an adverse submission in response to the application when it was originally advertised and no potential impact from the changes is discernible.

1. Council did not oppose the application.  The first Co-respondent drew attention to a particular drawing dated 16 November 2006 to suggest the changes were more swingeing than the appellant’s submissions suggest but the drawing is not,  in fact, identified as one of the amended plans relied upon by the applicant (although, relevantly, it identifies the increase in the number of units).  The second co-respondent took, as I understood him, a position of neither consenting to nor opposing the application.

1. It is said, for the applicant, that the proposed changes are intended to meet, in part, issues raised by Council and each of the Co-respondents by election in their respective submissions.  That is not a matter of great moment or materiality but it is relevant that the alterations do not seem likely to effect impacts vis a vis adjoining properties and, indeed, are more likely to reduce them.

1. In Lascorp Development Group v Burnett Shire Council [2007] QPEC 024 his Honour Judge McLauchlan QC suggested that, in some cases, it would be relevant to consider whether the changes were to salient, rather than incidental, elements of the original proposal. Plainly, aspects of the changes here are salient in that they relate to the primary purpose of the proposed development but, by reference to matters of scale and degree, they are nevertheless relatively insignificant. When considered in light of the matters of general principle set out earlier including, in particular, the ordinary meaning of the word “minor”, only one conclusion is reasonably open: that they comfortably fall within the ordinary meaning of the term as it is used in the statute.

1. For these reasons, the application is allowed.