Wildlife Preservation Society of Queensland, Logan Branch v Logan City Council

[2005] QPEC 92

[2005] QPEC 092

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1993 of 2005

WILDLIFE PRESERVATION SOCIETY OF QUEENSLAND,
LOGAN BRANCH INCORPORATED  Appellant

and

LOGAN CITY COUNCIL  Respondent

and

NOR SECURITIES PTY LTD  Co-respondent

BRISBANE

..DATE 07/09/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.2.1(3)(a),
s 4.1.5A, s 4.1.52 - changes to a development application agreed to by the parties in a compromised adverse submitter appeal held a "minor change" - relocation of access roads left intact more of the site and a presently unconstructed road forming one frontage - late inclusion of a narrow strip of
land to be acquired from the owners of a parcel surrounded on 3 sides by the development site allowed favourable relocation of another access - to the extent necessary, the applicant should be relieved under s 4.1.5A

HIS HONOUR:  The parties have, so far as they can, resolved this adverse submitted appeal against the Council's decision to approve a large scale subdivision on a site at the corner of Chatswood Road and Daisy Hill Road, where name changes to Callistemon Road towards the east.  There are changes made to the original application, the current proposal being in terms of Exhibit DWP4 to Mr Perkins' affidavit filed on the 5th of September 2005.  Exhibit DWP1 shows the original proposal which was the approved one.

...

HIS HONOUR:  At a cursory glance there are no changes at all, but closer inspection reveals some changes.  They include road design and in particular a relocated connection from stage 1 to stage 2, a relocated connection to Chatswood Road much further to the north than that originally proposed and a relocated connection (this time involving only a slight relocation of the connection) to Daisy Hill Road, which makes use of a strip of land only recently made available by the owner of the relevant parcel, who otherwise has had nothing to do with the development.

The Court is told that at the moment Chatswood Road is not constructed.  The relocation of the access much closer to the intersection with Daisy Hill Road will leave unaffected, at least for the present, terrain there.

An additional area of open space south of the six blocks which will have a frontage to Chatswood Road will increase the area of open space.  There is no reduction in lot numbers, which remain at 180, there being some reduction in the size of the lots. 

So far as the relocation of access to Daisy Hill Road in the centre of the development is concerned, that change I would think is going to be barely detectable.  It is impossible to think that anyone might have been moved to make a submission about the changed application who would not have become aware of and taken up the opportunity to do so in respect of the original application.  Indeed, the potential causes of concern would appear to have been reduced, if one follows the axiom that more open space is better than less.

I am in no doubt that for purposes of section 4.1.52 of the Integrated Planning Act the changes here in location of accesses to the main roads and between the stages are minor and do not stand in the way of the Court's approving the changed application. That observation applies even more strongly to the very minor redesign of internal roads.

There is a further potential concern relating to the late addition to the land contained in the development of the strip being made available by Mr J M Shailer. This is described as Lot 1 on SP168264. Had the land been involved when the development application was originally made to the Council, it ought to have been referred to and the consent of Mr Shailer ought to have been provided. See section 3.2.1(3)(a). It is an afterthought to include Lot 1. Mr Shailer's consent is now available. A true copy of it is Exhibit DWP5 to the affidavit.

If there has retrospectively developed some non-compliance with the Act by reason of non-inclusion of that land and the appropriate consent, it is obviously a case in which the Court ought to act under section 4.1.5A to relieve the applicant from the consequences. 

Mr Fynes-Clinton has supplied additional drafting for inclusion in the agreed draft order, which was prepared to cover other matters.  I think the agreed draft ought to have included in it the contents of that additional drafting which I have marked Exhibit 1. 

So there will be an order in terms of the initialled draft which will incorporate the contents of Exhibit 1 after the formal declaration of the Court's satisfaction at the beginning.  Order as per draft.

...

HIS HONOUR:  I vacate the hearing dates beginning 19th of September.

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