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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Goldicott House Pty Ltd v Brisbane City Council & Ors (No. 2)  QPEC 47
GOLDICOTT HOUSE PTY LTD CAN 618 926 800 AS TRUSTEE FOR GOLDICOTT HOUSE
BRISBANE CITY COUNCIL
(First Co-Respondent by Election)
(Second Co-Respondent by Election)
(Third Co-Respondent by Election)
(Fourth Co-Respondent by Election)
BRISBANE BOYS’ COLLEGE
(Fifth Co-Respondent by Election)
(Sixth Co-Respondent by Election)
ROBIN BAILEY AND TRACEY BAILEY
(Seventh Co-Respondent by Election)
ANDREW CARLTON AND NATALIE CARLTON
(Eight Co-Respondent by Election)
REBECCA KENNY AND DAVID MARRINER
(Ninth Co-Respondent by Election)
(Tenth Co-Respondent by Election)
(Eleventh Co-Respondent by Election)
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING
(Twelfth Co-Respondent by Election)
3224 of 2018
Planning and Environment
Application in Pending Proceeding
Planning and Environment Court, Brisbane
27 August 2019, ex tempore
27 August 2019
The application is allowed.
PLANNING AND ENVIRONMENT – APPLICATION –whether changes to a development application are a minor change – whether changes to a development application result in a substantially different development
R Litster QC and K Wylie for the appellant
R Traves QC and K Buckley for the respondent
R. Kenny, self-represented and as agent for the first, second, seventh, eighth and ninth co-respondents by election
K Perissinotto, self-represented and as agent for the third co-respondent by election
J. Price as agent for the eleventh co-respondent by election
Hopgood Ganim Lawyers for the appellant
City Legal – Brisbane City Council for the respondent
Corrs Chambers Westgarth for the twelfth co-respondent by election
- This is an application for orders permitting the appeal to be heard and determined on the basis of a changed application. Section 46(3) of the Planning and Environment Court Act 2016 (“the Act”) provides that this court cannot consider a change to the development application unless that change is only a minor change. Schedule 1 of the Act refers the reader to the Planning Act 2016 (“PA”) for the definition of a “minor change”. The definition of a “minor change” in Schedule 2 of the PA ascribes a different meaning depending on whether a change is to a development application or to a development approval. In this case, the relevant definition is that for a development application.
- The definition requires attention to whether the change would result in a substantially different development and whether it would cause one of a number of things set out in paragraph (ii) of the definition. It is not suggested that the change in this case would be caught by reference to any of the matters in paragraph (ii). The question is then whether it would result in a substantially different development.
- Assistance in that regard can be obtained from the Development Assessment Rules (“the Rules”) made under s 68(1) of the PA. Section 3 of the Rules provide that in determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development and the context of the change proposed. Section 4 goes on to say that a change may be considered to result in a substantially different development if the proposed change answers the description of the circumstances set out in subparagraph (a) through to (i). The proposed change in this case does not trigger any of those.
- The application for a change comes at the end of the hearing of the evidence in this case. The change was foreshadowed part way through the hearing and, from that time onwards, the case was run on the basis that what was addressed was the proposed changed application. The change relates only to the reconfiguration of a lot aspect of the application. In particular the proposed change is the boundary line between proposed lots 21 and 22 as identified in drawing 620.13242-D0101, issue A, attached to appendix C of the traffic engineering JER, being Exhibit 32. That plan shows a modified property boundary alignment in the area close to the head of the Grove Crescent cul-de-sac which provides a frontage to both proposed lots 21 and 22. The effect of the change would be to afford a greater frontage to a proposed lot 22 and a corresponding reduction in the frontage for proposed lot 21.
- The reason for the change relates to a matter of concern which was raised by Mr Price, who is the partner of the eleventh co-respondent by election. The concern related to whether the reconfiguration to create proposed lot 22 would compromise the safe and efficient operation of the driveway that provides access to 47 and 49 Grove Crescent. That concern having been raised, it was made an issue in the appeal by virtue of this court’s order on the 4th of June 2019.
- The effect of moving the proposed boundary is, on the evidence of the traffic engineers, that there is better opportunity to provide an appropriate access for lot 22 for use for community facilities. The lesser frontage left for proposed lot 21 would, on the evidence of the traffic engineers, still be wide enough to provide an access for that lot if its use were to be as a house as the appellant proposes, but not if it was used for some types of community facilities.
- In order to address any concern that the proposal might limit the future use of proposed lot 21, the appellant volunteers a condition that proposed lot 22 is to provide any easement that is reasonably necessary for vehicle and pedestrian access in favour of proposed lot 21 from Grove Crescent through proposed lot 22 at such time in the future as proposed lot 21 is developed for community facilities. That would facilitate a combined single driveway scenario which was contemplated by the traffic engineers.
- The respondent, for its part, neither consented to nor opposed the application for a change. The town planner called by the Council, Mr Perkins, did not express any concerns in relation to the change. The town planner called by the appellant, Mr Reynolds, acknowledged that the change related to only one component of the application, namely the reconfiguration of the lot and went on to express the view that the change was of no substantial planning significance and I accept his view.
- In the course of hearing the application, some matters were raised. It was suggested by the Council that there was an absence of evidence from heritage experts about the effect of the change. Whilst that is true, the change would not affect any matters that were agitated amongst them.
- It was said in particular by the Council, that the court might be concerned that the proposal might in some way prejudice the use of lot 21 for community facilities. Reference was made to whether onsite car parking would be appropriately proposed on lot 21 for community facilities having regard to the heritage consideration. Such considerations would not appear to arise as a result of the change that is requested at the minute. The change to the application is simply to change the boundary between proposed lots 21 and 22 to afford a greater frontage to lot 22 and lesser frontage to lot 21. Any concern about that impacting upon the potential use of lot 21 for community facilities is addressed by the ability to impose a condition of the kind offered by the appellant. Such a condition would address any concern that the change to the boundary might result in some limitation on the utility of lot 21 to be used for community facilities.
- There was a broader point made in the course of the case as to whether the creation of lot 22 would impact upon the flexibility to use lot 21 for community facilities, and in that regard some mention was made of the fact that it might prevent, for example, the land which is proposed to be put into lot 22 from being used for car parking or other facilities associated with the use of what would now be lot 21. Such concerns about a loss of flexibility and a prejudicing of the use of lot 21 for community facilities arises out of the proposed subdivision rather than the change to the boundary which has been proposed as a minor change.
- One of the co-respondents by election said that the change might result in pushing any future access to lot 21 further to the north, which might have an impact in terms of heritage issues, both in relation to the location of the access and the apparent presentation of the frontage. The proposed condition, however, means that if it is reasonably necessary, an easement can be obtained from proposed lot 22 so that access is obtained from the area which is to be included in proposed lot 22. In short, the condition which requires an easement where reasonably necessary means that there would be flexibility in the way in which access for proposed lot 21 can be provided in the future. What is required in that respect would, of course, be the subject of consideration by way of a further application if the building is to be used for community facilities.
- Another issue raised was that the access for proposed lot 22 overlaps with but extends further, in terms of its width, than an easement which is granted in favour of the school. It was pointed out that the school had indicated its opposition to the proposal. To the extent, however, that that causes any difficulty or may cause any difficulty in the future, it is not a new difficulty caused by reason of the proposed change to the application. It was a matter which also affected the proposal in its initial form. The greater frontage perhaps means that there is a wider area of potential access which is not coincident with the easement, but that does not render the change more than a minor change to the application as it stood.
- Moreover, the change is to only one component of the application, namely, the reconfiguration of the lot. The magnitude of the change, being a change to the boundary between the proposed lots, is relatively small. It has been made so as to address an issue that was raised in the appeal and to reduce impacts, rather than to exacerbate impacts or create new impacts. Seen in the context of the condition which the appellant proposes, it would not have any undue impact in relation to proposed lot 21. The change does not affect the way the development is intended to operate. It does not, in my view, result in a substantially different development. It is, in my view, a minor change and I exercise my discretion to order that the appeal proceed to be decided on the basis of the change.
- Published Case Name:
Goldicott House Pty Ltd v Brisbane City Council, Andrew Bolton, Nicole Bolton, Steven Perissinotto, Kaylene Perissinotto, Brisbane Boys' College, Matthew Conrick, Robin Bailey, Tracey Bailey, Andrew Carlton, Natalie Carlton, Rebecca Kenny, David Marriner, Catherine Costello, Elizabeth Musgrave and Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning (No. 2)
- Shortened Case Name:
Goldicott House Pty Ltd v Brisbane City Council (No. 2)
 QPEC 47
27 Aug 2019