Wroxall Investments Pty Ltd v Cairns Regional Council

[2011] QPEC 58

[2011] QPEC 58

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3105 of 2008

WROXALL INVESTMENTS PTY LTD	Appellant
and
CAIRNS REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 25/03/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350, s 821

Minor change - following the appellant developer's and Council's resolving many issues, the court gave reasons for the rejection of a proposed vehicular link through the development site to join the northern and southern sections of a town - agreement was then reached upon suitable redesign of the proposed internal roads and the correct credit for "park contributions" - some lots changed in size (in particular a large 5000m  lot was reduced to 3170m  and relocated) - the development was for the first time proposed to be staged

HIS HONOUR:  The court makes an order in terms of the initialled draft which the parties join in presenting to finalise the appellant's appeal against refusal of its development application for a residential subdivision at Wonga Beach.

The court has published reasons to the parties after hearing what resolved into a conditions appeal and the order which the court now makes embodies the views expressed in the reasons. As might have been expected the development proposal has been changed in ways that will not prevent the appeal’s proceeding to determination on the basis that the proposal is the changed one provided the court is satisfied that the definition of minor change in section 350 of the Sustainable Planning Act 2009 is satisfied.

The development application was made and processed under the predecessor legislation, section 4.1.52(2)(b), of which would have governed the change aspect. By section 821, it's the section 350 concept of a minor change that matters. When the appeal came on for hearing, the proposal being presented to the court had already been changed from that which was publicly notified. Those changes were determined to be a minor change. See [2010] QPEC 92 at [21].

The changes now made, if accepted by the court, will return the proposal closer to that which was publicly notified and that's the one with which comparison ought to be made.  There is, for the first time, a staging of the 49 lot proposal with the first 11 lots to be proved in stage 1, another 17 in stage 2 and the last 14 in stage 3.

The staging will have no particular impact beyond allowing the developer to proceed at a pace rendered appropriate by the market.  The issues in the appeal were: (a) whether, as the appellant had desired, a through connection between Oasis Drive in the north and Marlin Drive in the south should be permitted - the Council, on the basis of views attributed to local people, opposing this on safety grounds, and (b) what "creditable contributions" the developer ought to get for parts of its site made over for public purposes. 

At the hearing there was proposed by the Council a condition in terms precluding a connecting road.  The real basis for the Council’s success was its control over an existing road reserve beyond the mouth of Marlin Drive as constructed; The Council could not be compelled to accept works on this reserve.  The request for that condition has gone but the new reconfiguration plan 07 issue F does not provide for any link which may be used readily by vehicles.

The Council is now satisfied with conditions apparently acceptable to the appellant which require the placing of bollards to block vehicular traffic in locations identified carefully for each stage in order to fall in with that solution.  It may be that in future years a connection for vehicles between Oasis Drive and Marlin Drive is to be provided.  That could happen as there may be sufficient space for it along the western perimeter of the subdivision.

It could also happen by a “mirror” deviation to the esplanade side of the subdivision - which would require considerably less new construction.  There's even the possibility of a loop which might alleviate the safety concerns by an appropriately controlled one-way system.

There's no suggestion at the moment that there will be a through connection.  The burden of the court's reasons was that no suitable through connection for vehicles had been demonstrated yet.  It may well be appropriate to ascertain the views of local people in a systematic way.

In the new plans the lot yield is the same, 49, but, perhaps because of the staging, or other factors, there is some redesign.  In particular, a 5,000 square metre lot proposed to face the opening of Marlin Drive is no longer part of the proposal.  There is to be in lot 35 a 3,170 square metre lot at the mouth of the present Oasis Drive.

During the hearing of the appeal there was some suggestion that the large allotment might, at some future time, be the subject of a proposal for a shop or shops to serve the subdivision.  I'm mentioning this simply to make it clear that that was never raised as anything more than a possibility for the future.

This isn't one of those situations in which the court should be deterred from identifying changes as minor change on the basis that some important feature of a proposal is being removed from it. That has been a possibility under the case law in the court, in particular Carillon Developments ltd v Maroochy Shire Council [2000] QPELR 216. It's also identified in the administrative guidelines which have been produced by the Department to assist relevant officers to assess whether change is minor.

The parties have agreed on a resolution of their former differences regarding creditable contributions and there's no basis on which the court might decline to give its imprimatur to what's been agreed upon in that regard.

So, order as per initialled draft.

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