Wolter Group Holdings Pty Ltd v Brisbane City Council
[2012] QPEC 42
•13 June 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Wolter Group Holdings Pty Ltd v Brisbane City Council & Anor [2012] QPEC 42
PARTIES:
WOLTER GROUP HOLDINGS PTY LTD (ACN 121 396 174) TRADING AS WOLTER CONSULTING GROUP AS AGENT FOR THE HERAN BUILDING GROUP PTY LTD (ACN 010 071 744)
(Applicant/Appellant)AND
BRISBANE CITY COUNCIL
(Respondent)AND
CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Co-respondent by election)FILE NO/S:
3568/09
DIVISION:
Planning and Environment
PROCEEDING:
Hearing of an application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
13 June 2012
DELIVERED AT:
Brisbane
HEARING DATE:
29 May 2012
JUDGE:
RS Jones DCJ
ORDER:
The application is refused.
CATCHWORDS:
MINOR CHANGE – where development application lodged by the applicant sought to vary the respondent’s planning scheme (City Plan 2000) in a way that would make future applications in respect of the land code assessable for use as consistent with the Multi-Purposes Centre (MP4) – Convenience Centre subject to assessment criteria and applicable codes – whether an application to change the development application originally sought so as to make the proposal (where relevant) self-assessable rather than code assessable was a minor change for the purposes of s 350 of the Sustainable Planning Act 2009
Integrated Planning Act1997 (Qld), ss 1.3.2, 3.1.3, 3.1.5, 3.1.6, 3.2.1, 3.2.3(2), 3.5.28, 4.1.52, Schedule 10.
Sustainable Planning Act2009 (Qld), ss 7, 232, 236, 238, 241, 242, 350, 578, Schedule 3.Fox & Anor v Brisbane City Council & Ors [2003] QCA 330, cited
Greek Orthodox Community of St George Brisbane v Brisbane City Council & Ors [2011] QPEC 139, cited
Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355; [1998] HCA 28, cited
APPEARANCES:
Mr M. Connor of Connor O’Meara, Solicitors for the applicant/appellant
Mr T. Trotter of counsel instructed by Brisbane City Legal Practice for the respondent
Ms G. Ayriss, Solicitor of HopgoodGanim for the co‑respondent by election
This proceeding is concerned with an application under s 350 of the Sustainable Planning Act 2009 (“SPA”) for an order that the proposed change to the applicant’s development application is minor for the purpose of the SPA. For the reasons given, the application is refused.
Background
At or about 27 June 2008, the applicant lodged an application for a preliminary approval to override the respondent’s planning scheme for a material change of use of the subject land for a Centre Activity Outside Centre (Convenience Centre). The respondent refused the application and that decision was appealed. The proposal involves the development of a relatively low-key shopping centre located on the south-eastern corner of the intersection of Illaweena Street and Beaudesert Road, Drewvale.
Following the involvement of this court’s alternate dispute resolution processes the only live issue remaining at the hearing of the substantive appeal was the appropriate location of a traffic U‑turn facility to provide access to and from Illaweena Street.
On 20 December 2011, the traffic issue was determined in favour of the applicant and this Court made the following orders:
“1.That the further hearing of the appeal be adjourned to allow for the formulation of appropriate conditions.
2.I will hear further from the parties (if required) about the need for any further orders.”
Obviously, both the mediation and the appeal were conducted and disposed of, while the original development application was on foot.
On 14 March 2012, the applicant filed an application that sought the following relief:
“An order that the development application be changed in relation to the way it seeks to vary the planning scheme so that:
(a)Centre Activities (except Hotel and Nightclub) carried out generally in accordance with Drawing No. A-2011.01 dated January 2012 and Drawing No. A-2011.02 dated 2 February 2012 will be self-assessable …”
The reason why this application was brought is stated in the following terms in the applicant’s reply submissions:[1]
“… given the history of the development application, its level of scrutiny to date and the degree of controversy it has provoked with the respondent, the change is designed to avoid a further development application for a material change of use and building work assessable against the planning scheme.”
[1]At para 3.
The respondent opposes the application. The co‑respondent by election neither opposes nor supports the application and will abide the orders of the court.
Minor change
At the time the development application was lodged with the respondent, the Integrated Planning Act 1997 (“IPA”) was in force. Pursuant to the transitional provisions of the SPA (which repealed the IPA), the substantive appeal was decided under the IPA as if the SPA had not commenced. Notwithstanding that, both the applicant and the respondent were in agreement that this application was to be determined by reference to s 350 of the SPA which relevantly provides:
“350 Meaning of a minor change
(1)A minor change in relation to an application, is any of the following changes to the application—
...
(d)a change that—
(i)does not result in a substantially different development; and
(ii)does not require the application to be referred to any additional referral agencies; and
(iii)does not change the type of development approval sought; and
(iv)does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment.
(2)In deciding whether a change is a minor change under subsection (1)(d), the planning instruments or law in force at the time the change was made apply (the applicable law) …”
According to the respondent, the “relevant focus” was on s 350(1)(d) and, in particular, subsections (d)(i) and (iii). The respondent contended that both of those subsections were “offended”.
The physical changes between the original proposal and that now intended are particularised in the affidavit of Ms N. Rayment.[2] During argument, it became tolerably clear that had those changes been the only issue, it would not have been opposed by the respondent. That is, the proposed physical changes would not result in a “substantially different development” for the purposes of s 350(1)(b)(i) of the SPA.
[2] At para 11.
Accordingly, both sides then proceeded on the basis that the real issue was whether the proposed change as to how the preliminary approval now sought would operate, was a change of the “type of development approval” sought for the purposes of s 350(d)(iii) of the SPA.
As I have already identified, the applicant did not shy away from the fact that the reason for the application was to avoid further development applications for a material change of use and building works assessable against the respondent’s planning scheme having to be made during the course of the development of the project. However, the applicant contended that while the proposed change would affect how the preliminary approval would operate, it did not amount to a change of the type of development approval sought. It was contended:[3]
“It is respectfully submitted that given the definition of development approval in both IPA and SPA the prohibition on changing ‘the type of development approval sought’, contained in s 350(1)(d)(iii) of SPA, is limited to changing a preliminary approval to a development permit or vice versa.”
[3]Applicant’s written Reply, at para 12. See also at T1-29 LL 5 – 12; T1-47 LL 30 – 50.
Under the IPA, a development approval is defined:[4]
[4]IPA, Schedule 10. See also SPA, Schedule 3.
“(a)a decision notice or a negotiated decision notice that—
(i)approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
(ii)is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval; or
(b)a deemed approval, including any conditions applying to it.” (emphasis added).
Pursuant to s 3.1.5 of the IPA, a preliminary approval approves development but does not authorise assessable development to occur. A development permit authorises (subject to limitations and/or conditions stated in the permit and/or preliminary approval) assessable development to occur.[5]
[5]IPA, s 3.1.5(3); SPA, s 243.
According to the applicant, because the proposed change did not seek to convert the preliminary approval sought to a development permit, it did not offend the prohibition prescribed under s 350(1)(d)(iii) of the SPA.
The respondent contended that the proposed change was not only repugnant to the legislative schemes of the IPA and the SPA, but also to the nature and content of the original application for preliminary approval. In particular, the respondent argued that to allow the application would permit the “complete evasion” of the basis on which the original application was made and, in effect, convert an application for a preliminary approval, which initially envisaged future applications for development to be subject to code assessment, into an application for a development permit under which development was authorised to occur without further application.[6] According to the respondent, that would be the “antithesis” of the intention of s 241 of the SPA.[7]
[6]Respondent’s amended written submissions, para 29.
[7]SPA, s 241 provides “(1) A preliminary approval—
(a)approves development, but does not authorise assessable development to take place; and
(b)approves development—
(i)to the extent stated in the approval; and
(ii)subject to the conditions of the approval.
(2)However, there is no requirement to get a preliminary approval for development. (See also IPA, s 3.1.5)
Consideration
Not surprisingly, so as to avoid unduly limiting flexibility in dealing with development applications and approvals, many of the provisions of the IPA are couched in wide terms.
Section 1.3.2[8] defines “development” as any of five categories of activity:
[8]SPA, s 7.
(a) carrying out of building work;
(b) carrying out of plumbing or drainage work;
(c) carrying out of operational work;
(d) reconfiguring a lot; and
(e) making a material change of use of premises.
Section 3.2.1[9] is concerned with the making of an application for development approval. Section 3.2.3(2) makes it clear that the development application must identify the type of development applied for by reference to the description given to each of the categories identified above.[10] Not surprisingly, a development application is defined as an application for a development approval.[11]
[9]SPA, s 260.
[10]Fox & Anor v Brisbane City Council & Ors [2003] QCA 330 at [55] per Gerard JA.
[11]IPA, Schedule 10; SPA, Schedule 3.
As can be seen, the definition of a development approval has been deliberately drafted in wide terms. Approval may range from an unconditional development permit approving the whole of the development through to a preliminary approval approving part only of the development subject to conditions.[12]
[12]IPA, s 3.1.5; SPA, ss 241, 243.
In the case of an application for preliminary approval to override a planning instrument (as is the case here), the IPA again provides for flexible outcomes. Section 3.1.6 relevantly provides:
“Preliminary approval may override a local planning instrument.
(1)This section applies if—
(a)an application applies for a preliminary approval; and
(b)part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for land.
(2)Subsection (3) applies to the extent the application is for—
(a)development that is a material change of use; and
(b)the part mentioned in subsection (1)(b).
(3)If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under Part 5, do either or both of the following for development relating to the material change of use—
(a)state that the development is—
(i)assessable development (requiring code or impact assessment); or
(ii)self assessable development; or
(iii)exempt development;
(b)identify any codes for the development
…”
It can be seen that a preliminary approval to override the provisions of a planning scheme may range from one stating that the development is exempt development through to it being development requiring impact assessment.
Obviously, where a preliminary approval lies within that range would materially affect the level of scrutiny the development may be subjected to by the relevant local authority and, where appropriate, referral agencies. In this context, I respectfully agree with the following quotation from the text “Sustainable Planning in Queensland”:[13]
“Dividing development into broad categories of exempt, self assessable, compliance assessable, assessable and prohibited development allows different types of development to be assessed more or less thoroughly. If minor development is allowed to proceed without the need for assessment (as for exempt development), or can be approved quickly and with little bureaucratic involvement (as for development requirement compliance assessment), then more time and rigour may be applied in the assessment of complex applications. In this sense, the assessment regime is risk based and conducive to performance based assessment.”
[13]England, P, Sustainable Planning in Queensland, 2011, Federation Press, at p 142.
According to Mr Connor, appearing for the applicant, the types of preliminary approvals envisaged under s 3.1.6(3) of the IPA are merely subcategories or subclasses of the types of development approvals defined in Schedule 10 of the IPA, namely a preliminary approval or a development permit or an approval combining both a preliminary approval and a development permit in the one approval. To put it another way, Mr Connor submitted that the kind of preliminary approvals envisaged under s 3.1.6(3) merely identify how the “higher order” preliminary approvals (as defined) would operate. Mr Connor submitted:[14]
“Now, it states the development is assessable requiring code or impact or self assessable. So, this is the effect of a 3.1.6 approval. It has these – it can do all of these things. It can say development is assessable development. It can say development is code assessable. It can say it’s self-assessable. It can say it’s exempt. And so it’s not the type of development approval that’s changing, it’s the way the development approval is varying the operation of the [planning] scheme.
Now, that’s an important distinction which I invite your Honour to bear in mind because your Honour knows, by the qualification of the word ‘type’ in the relevant provisions of 350 that your Honour’s looking at a higher level issue here and not the effect of the development approval. It’s the type that your Honour has to focus on. …”
[14]T1‑49 LL 10‑30.
With the greatest respect to Mr Connor, I cannot agree with those submissions. In circumstances where the statutory provisions have been deliberately drafted widely to ensure flexibility, it would be wrong to conclude that the meaning of “development approval” prescribed in Schedule 10 of the IPA constrains the meaning of the word “type” where used in s 350(1)(d)(iii) of the SPA in the way contended for on behalf of the applicant.
In my view, where the word “type” appears in s 350, it is a reference to the kind or class of development approval being sought which is capable of being distinguished in a real and material way, by reference to its substantive characteristics, from another kind or class of development approval.[15]
[15]See Macquarie Dictionary, 2009, 5th Ed., definition of “type”.
A development permit is not necessary for self assessable development[16] but is for assessable development.[17] Under the respondent’s City Plan 2000, self assessable development requires no application. The original application sought preliminary approval for the proposal on the basis that all relevant future development applications would be code assessable.[18] The development application also stated that it was relevant to assess the application against the Emerging Community Code and, accordingly, that any future development approvals “will be required to address the relevant codes such as [the] Centre Design Code; Transport, Access, Parking and Servicing Code; Structure Planning Code; Landscaping Code; Stormwater Management Code; Service, Works and Infrastructure Code; and Filling and Excavation Code.”[19]These codes are consistent with those (including secondary “Codes”) identified in City Plan 2000.[20]
[16]IPA, s 3.1.4(2); SPA, s 236.
[17]IPA, s 3.1.4(1); SPA, s 238.
[18]E.g. Affidavit of Ms Rayment. Ex “NJR-2”, pp 25 and 35.
[19]Ibid, at p 52.
[20]Exhibit 4 at Ch 3, pp 56-57; Ch 5, p 35.
That state of affairs is to be contrasted with that where, for self assessable development, the only applicable code is the Centre Amenity and Performance Code.[21] That is of course what the applicant now wants approval for as demonstrated by the particulars of the proposed change to the development application:[22]
[21]Ibid, at Ch 3, p 56. The level of Assessment Table in City Plan 2000, Schedule 3, determines the applicability of codes: Greek Orthodox Community of St George Brisbane v Brisbane City Council & Ors [2011] QPEC 139.
[22]Applicant’s Written Reply, para 5: Annexure B.
The proposed change to the development application would have significant ramifications. It would change from being an application that envisaged various development approvals being sought which would be assessed by reference to a number of applicable codes, to one where it is intended that no further development applications would be required and, the development would be compliant where it satisfied the acceptable solutions prescribed by one code only, namely the Centre Amenity and Performance Code. Accordingly, the development approval now being sought would result in a materially different assessment regime than that initially applied for.
When the words used in s 350(1)(d)(iii) of SPA are given their natural and ordinary meaning and read in context, there is no basis for limiting that subsection to the types of changes contended for by the applicant. When looked at objectively, the construction contended for by the respondent is not only consistent with the natural and ordinary meaning of the words used, but more likely to reflect the intentions of the legislature.[23]
[23]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at paras [69]-[78] per McHugh, Gummow, Kirby and Hayne JJ.
For the reasons given, I have reached the conclusion that the proposed change is not a minor change for the purposes of s 350 of the SPA. Substantive characteristics of the approval now being sought differ from those initially sought to such an extent as to amount to a change of the “type” of the development approval sought.
Accordingly, the application is refused.
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