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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Zumbo v Brisbane City Council & Ors  QPEC 14
BRISBANE CITY COUNCIL
BRIAN JOSEPH PROVE
(first co-respondent by election)
(second co-respondent by election)
(third co-respondent by election)
(fourth co-respondent by election)
(fifth co-respondent by election)
(sixth co-respondent by election)
MARINERS LODGE BODY CORPORATE
(seventh co-respondent by election)
1934 of 2019
Planning and Environment
Application in Pending Proceeding
Planning and Environment Court, Brisbane
10 March 2020, ex tempore
10 March 2020
The application is allowed
PLANNING AND ENVIRONMENT – APPLICATION – whether minor change – where the applicant/appellant proposes to decrease the height of the proposed apartment building – whether that would result in substantially different development – whether changes would not result in substantially different development
M Batty for the applicant/appellant
J Evans (solicitor) for the respondent
No appearance for the co-respondents by election
Keypoint Law for the applicant/appellant
City Legal – Brisbane City Council for the respondent
No appearance for the co-respondents by election
- This is an appeal against the respondent’s refusal of a development application for a development permit for material change of use for a multiple dwelling, and a permit for building work in order to facilitate the development of an 18 storey apartment building in Kangaroo Point. The development application was subject to public notification and attracted a significant number of adverse submissions. The appeal against the Council’s refusal resulted in a number of submitters electing to join as co-respondents by election.
- In the course of the appeal, the appellant has proposed a change to its proposal. It seeks to have the appeal heard and determined on the basis of that change. By reason of section 46 of the Planning and Environment Court Act 2016, the Court cannot consider a change to the development application unless the change is only a minor change. The question for determination today is whether the proposed change falls within that description.
- One of the co-respondents by election has not notified her position in relation to the application, nor has she attended on the hearing of this application, notwithstanding having been given notice. All other co-respondents by election have given notice that they join in the view expressed by the seventh co-respondent by election, to the effect that the change is a minor change for the purposes of the legislation. The respondent, Brisbane City Council, also does not suggest that the change is more than a minor change.
- The expression minor change is defined in the Planning Act. In the case of a development application, it means a change that does not result in a substantially different development, and if the application, including the change, were made when the application is made, would not cause one of a number of different things. In this case, the change would not cause any of the things referred to in subparagraph (a)(ii) of the definition. The remaining question is whether the change would not result in a substantially different development. In determining that question, the Court should have regard to the guidance provided in the development assessment rules. As was the case when determining similar questions under the earlier legislation, the changes should be considered from a qualitative as well as a quantitative perspective. That is consistent with the development assessment rules.
- In this case, the primary change is to the height of the proposal. There are some other changes which are described in the affidavit of Mr Proberts, but they are relatively trivial and I need not pause upon them. The proposal remains largely unaltered, save that the number of stories is to be reduced from 18 to 12. That is obviously in response to objections which have been expressed in relation to the height of the proposal.
- That decrease in height is not insignificant from a quantitative perspective, but that does not necessarily mean that the change has produced a significantly different development. As Mr Proberts points out in his affidavit, the proposal remains a medium height tower in an urban context, and retains the key architectural features of the building. It does not introduce any new impact or consideration. Insofar as the guideline is concerned, leaving subparagraph (c) to one side, it does not trigger any of the other considerations referred to in the guideline.
- Subparagraph (c) refers to changes which dramatically change the built form in terms of scale, bulk and appearance. The reduction in height is, as I have acknowledged, significant. But when one considers the change in a qualitative sense, and bears in mind that the design and architectural features of the building are otherwise retained, and that the decrease in height has no identified adverse impacts, nor raises any further considerations, then, in my view, the quantum of the decrease in height is not, in this case, so great as to result in a substantially different development.
 Emaaas Pty Ltd v Brisbane City Council  QPEC 31.
- Published Case Name:
Zumbo v Brisbane City Council & Ors
- Shortened Case Name:
Zumbo v Brisbane City Council
 QPEC 14
10 Mar 2020