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Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council[2015] QPEC 11

Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council[2015] QPEC 11

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Orchard (Oxenford) Developments Pty Ltd (ACN 167 310 509) v Gold Coast City Council  [2015] QPEC 11

PARTIES:

ORCHARD (OXENFORD) DEVELOPMENTS PTY LTD (ACN 167 310 509)

(Appellant)

v

GOLD COAST CITY COUNCIL

(Respondent)

FILE NO/S:

APPEAL 34/15

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

2 April 2015

DELIVERED AT:

Cairns

HEARING DATE:

12 March 2015

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal Allowed
  1. Further submissions to be heard on the appropriate orders and directions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – PERMISSIBLE CHANGE - Appeal against deemed refusal to change approval – mode of hearing of appeal where council formed earlier opinion of likely submission - whether permissible change – consideration of ss 367, 375 Sustainable Planning Act 2009 (Qld) - whether substantially different development  - whether additional concurrence agencies, or require impact assessment  - whether likely to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed.

COUNSEL:

DR Gore QC and BG Cronin for the Appellant

JG Lyons for the Respondent

SOLICITORS:

Hopgood Ganim Lawyers for the Appellant

Norton Rose Fulbright Australia for the Respondent

  1. [1]
    The appellant appealed pursuant to Section 369 of the Sustainable Planning Act 2009 (“SPA”) against the respondent council’s deemed refusal of a Request to Change a Development Approval to increase the number of lots from 49 to 52. 

Background

  1. [2]
    The land subject of the application is located at 278 -298 Kopps Road, Oxenford more particularly described as Lots 10, 11, 12 and 13 on RP 153301.[1]  The land had an area of 80,220m2. 
  1. [3]
    The appellant purchased the land in July 2014.
  1. [4]
    The initial development application for the land was changed several times before the original approval in 2011, which has subsequently been changed on a number of occasions.
  1. [5]
    The initial development application, lodged in 2003, sought approval for 70 lots. In 2004 the then developer changed the application to reduce the number of lots to 64. The changed 64 lot proposal was publicly notified and attracted a submission from the adjoining owners, Mr Plant and Ms Cantrell.
  1. [6]
    The respondent council did not support the changed proposal, but deferred the decision to allow the developer to consider its position.
  1. [7]
    In 2010, the developer again changed the application to reduce the number of lots to 44. The 44 lot proposal included four lots (41 to 44) in the north eastern corner of the site. That 44 lot proposal was publicly notified in 2011 and again attracted submissions from the adjoining owners Plant and Cantrell. The council officers recommended approval of the 44 lot proposal subject to conditions. However, that recommendation not accepted by the City Planning Committee. The committee instead recommended approval with a conservation park in lieu of Lots 41 to 44. No reasons were given for that position.
  1. [8]
    The respondent adopted the modified recommendation to approve 40 lots with a conservation park, and issued its decision notice on 15 August 2011.
  1. [9]
    The developer successful requested a negotiated decision notice to include four lots in the south western portion of the land. On 2 December 2011, the respondent issued a negotiated decision notice, approving a development permit for reconfiguration of a lot for 44 lots.[2]
  1. [10]
    This original approval was changed several times between 2012 and 2015.
  1. [11]
    On 16 October 2012, the respondent (by delegated authority) decided to approve a permissible change request and, on 29 October 2012 issued a notice to the developer, approving a change to the approval to increase the number of lots from 44 to 49.[3]  The change included the reintroduction of four lots in the north-eastern section of the land (previously lots 41 to 44).
  1. [12]
    The 2012 change was considered appropriate by council officers because:
  1. The changes were consistent with the planning intent for the area;[4]
  2. The revised development layout featuring lots on the north-eastern section was consistent with the layout publicly notified in 2011 and presented to Council for consideration;[5]  
  3. The reintroduction of lots in the north-eastern section (previously lots 41 to 44) was not a significant change;[6]
  4. The road extension and additional lots proposed were previously assessed by Council officers and considered appropriate (subject to conditions);[7] 
  5. The additional five lots was not a significant increase;[8]
  6. The increase in density was minor, and would not to erode the intent of the Kopps Road Structure Plan of ensuring development did not exceed the land’s capacity;[9]
  7. The underlying planning intent for the land was residential and therefore residential development was contemplated in the north-eastern corner of the land, provided any works within environmentally significant areas were designed and located to minimise impacts;[10]
  8. Concerns about vegetation, earthworks and slope were restricted to works for the road crossing (proposed at the far north of the land) which could be addressed by ground truthing and agreement about an appropriate location for the crossing.[11]
  1. [13]
    Since 2012, two further permissible changes were made:
  1. On 16 July 2014 the respondent approved a change to introduce staging.[12]
  2. On 28 January 2015 the respondent approved a change to amend condition 42 dealing with earthworks.[13]
  1. [14]
    The appellant’s most recent request to make a permissible change was made on 30 October 2014. The application for a permissible change is exhibited to the Affidavit of Nash.[14]  It has two parts:
  1. Firstly, an increase in the number of lots in the Reconfiguration of a Lot approval from 49 to 52; and
  2. Secondly, an amendment to the Plan of Development in the material change of use Development Approval.
  1. [15]
    The additional three lots are proposed in the northeast section of the land. That was the section inexplicably approved in 2011 as a conservation park in lieu of the originally proposed Lots 41 to 44, which were later reinstated in the 2012 change. The current application effectively changes the four lots into seven, with consequential amendments to the building envelopes. It is identified as Stage 2 of the development.
  1. [16]
    The Request was lodged with Department of State Development, Infrastructure & Planning and it has advised that it does not object to the proposed changes[15]
  1. [17]
    On 16 December 2014 the respondent indicated that it could not proceed with the assessment of the Request due to correspondence it had received from a member of the public, who was later identified as Mr Peter Young. Consequently, a deemed refusal appeal was filed on 6 January 2015.
  1. [18]
    The respondent’s position was further explained in its solicitor’s letter to the appellant’s solicitor dated 21 January 2015[16] as follows:

“It is our client’s position that the request the subject of the appeal should be refused on the limited basis that the proposed changes to the approval are not “permissible changes” because they do not comply with s.367(1)(c) of the Sustainable Planning Act 2009.

In particular, our client is of the view that it could not form the opinion that the changes would not be likely to cause a person to make a properly made submission objecting to the proposed changes if the circumstances allows.  This is because:

Our client has received correspondence on several occasions from a Mr Peter Young, a resident of 275 Kopps Road, Oxenford in relation to your client’s anticipated and proposed changes to the approval (disclosed to you on 16 January 2015); and

The correspondence indicates that Mr Young would, if the circumstances allowed, make a properly made submission objecting to the proposed changes, particularly the proposed increase to the number of lots.”

  1. [19]
    Division 2, Part 8, Chapter 6 of SPA, which deals with changing approvals, makes no provision for service of the Request on persons who were submitters to the previous application or on any other party other than any concurrence agencies pursuant to s 372(1)(c).  The Department of State Development, Infrastructure & Planning has not changed its position.
  1. [20]
    Notwithstanding the appellant was under no obligation to do so, it did give notice of the proceeding to Mr Young. He has not sought to be joined as a party. The material contains all relevant communication to and from him.
  1. [21]
    The appellant has filed a number of affidavits from experts in areas associated with the Request. I have also had the benefit of written and oral submissions.

Legislative Framework

  1. [22]
    The appeal is made pursuant to Section 466 of SPA.
  1. [23]
    Section 367 of SPA provides for the scope and consideration of a permissible change as follows:

367 What is a permissible change for a development approval

  1. A permissible change, for a development approval, is a change to the approval that would not, because of the change –
  1. result in a substantially different development; or
  2. if the application for the approval were remade including the change –
  1. require referral to additional concurrence agencies; or
  2. for an approval for assessable development that previously did not require impact assessment – require impact assessment; or
  1. for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or
  2. cause development to which the approval relates to include any prohibited development.
  1. For deciding whether a change is a permissible change under subsection (1)(b) of (d), the planning instruments or law in force at the time the request for the change was made apply.
  1. [24]
    For the assessment of the request and decision, ss 374 and 375 relevantly provide:

374 Responsible entity to assess request

  1. To the extent relevant, the responsible entity must assess the request having regard to-
  1. the information the person making the request included with the request; and
  2. the matters the responsible entity would have regard to if the request were a development application; and
  3. if submissions were made about the original application – the submissions;….
  1. For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give the weight it considers appropriate to the planning instruments, plans, codes, laws or policies applying when the request was made.”

375 Responsible entity to decide request

  1. After assessing the request under section 374, the responsible entity must decide to-
  1. approve the request, with or without conditions; or
  2. refuse the request.”

Issues

  1. [25]
    The questions to be decided in determining whether the requested change is a permissible change are whether, because of the change:
  1. The change would result in a substantially different development?
  2. The changed application, if remade, would require referral to additional concurrence agencies, or require impact assessment?
  3. The changed application, if remade, would require referral to additional concurrence agencies, or require impact assessment?
  4. The change would be likely, in the responsible entity’s opinion, to provoke a properly made submission objecting to the proposed change, if the circumstances allowed?
  5. The change would cause any prohibited development?
  1. [26]
    The main contested issue in this appeal is the fourth factor about whether the changes requested satisfy s 367(1)(c) of SPA.  The parties did not press any other issues arising from ss 367 and 374 of SPA.

Preliminary Issue

  1. [27]
    Firstly, a preliminary issue arises about the reference to “the responsible entity’s opinion” in s 367(1)(c), in circumstances as here, the council has formed an opinion.
  1. [28]
    It is well settled regarding declaratory proceedings brought under s 456 of SPA, that in declaratory proceedings brought under s 456 of SPA the opinion of the council must be accepted unless: it could be shown to have been one that no reasonable council could have formed; or it was based on irrelevant considerations, or in some other way it was unjustifiable.[17]  If the opinion of council was justifiable it must stand whether or not others may disagree with it.[18]
  1. [29]
    The issue is whether that principle applies in appeal proceedings or whether this court may decide for itself whether s 367(1)(c) is satisfied.
  1. [30]
    Mr Gore QC, for the appellant, essentially submitted that court should decide the s 367(1)(c) issue for itself, afresh on the material before it, rather than being trammelled by the respondent council’s opinion. He cited several authorities as indirect support for that approach.[19]
  1. [31]
    Mr Gore QC also dutifully drew the court’s attention to Hayday Pty Ltd v BCC [2005] QPEC 102 as unsupportive of the approach.  Like this case, the court in Hayday considered an appeal against a deemed refusal of a request to change a development approval, albeit under the former s 3.5.24 of the Integrated Planning Act 1997 (Qld).  The legislative framework was similar,[20] although there was argument about the appropriate appeal provisions and their effect.[21]  After the appeal was commenced, a council delegate formed an adverse opinion about whether a submission would be made.[22]  Later in his decision, Robin QC DCJ said: “My interpretation of the definition of minor change is that for there to be a possibility of use of the provisions of section 3.5.25, there must be an opinion reached by the assessment manager that submissions would not be likely”.[23] 
  1. [32]
    The court’s reasoning about the “likely submission” issue was explicably tentative and incomplete[24] because it had already decided adversely to the appellant that the change required referral to an additional concurrence agency.[25]  The remarks were obiter dictum.  Further, I respectfully disagree with His Honour’s interpretation of the provision.  If that was the law, an applicant’s appeal rights could be thwarted by a council’s delay and failure to express the requisite opinion.  This is at odds with the tenure of the legislation (as it then was) and the requirement that the appeal was by way of hearing anew. 
  1. [33]
    The current form of the legislation is clearer and there can be no debate about the genesis of the appeal. This appeal was brought pursuant to s 466(3), which expressly confers an unqualified right to appeal against a deemed refusal of a request to make a permissible change to an approval. This is consistent with appeals from a deemed refusal of a development application pursuant to s 461(1)(e) & (3).
  1. [34]
    The mode of hearing appeals to this court pursuant to s 495(1) is by way of hearing anew. That is, the court hears the matter afresh regardless of error, assesses the relevant application and decides the matter as the responsible entity.[26] 
  1. [35]
    The circumstances here are distinguishable from an application to this court for declaratory relief.[27]  In particular, reference was made to Christian Outreach Centre v Toowoomba RC [2012] QPELR 542,[28] but that decision is distinguishable.  That proceeding was not in the nature of an appeal; but rather was an application, made by the would-be submitter, seeking a declaration of invalidity of the council’s decision to approve the request for a permissible change.  It also turned on its own particular facts and circumstances.
  1. [36]
    It seems to me that it would be an unwarranted fetter to curtail the court’s appellant function and power by imposing a requirement that a council opinion (if made in reliance upon s 367(1)(c)) must be made and accepted unless vitiated by some error.
  1. [37]
    In my view, in an appeal against a refusal or deemed refusal of a permissible change request, this court must hear the matter afresh (including on fresh evidence), consider the factors in s 367 of SPA, undertake an assessment under s 374 of SPA, and then decide the request under s 375.  In doing so, the court may arrive at a different decision, without the need to find that the council’s decision was infected by administrative error or otherwise unjustifiable.
  1. [38]
    It is on that basis that I proceed in this case.

Change to the approval … because of the change

  1. [39]
    The test for assessing a "permissible change, for a development approval” contained in s 367(1) of SPA requires an assessment of the cumulative effect of the proposed change by comparing the nature and extent of the proposed change with the development subject of the development approval.  This requires consideration of:
  1. The nature and extent of the proposed change;
  2. The development approval; and
  3. The causative effect of the change.
  1. [40]
    The nature of the proposed change can be gleaned from the request to change the development approval sought pursuant to s 369 of SPA.  That is ordinarily a straightforward task.
  1. [41]
    The extent of the proposed change requires a more detailed comparative exercise whereby the changed development is compared with a benchmark, being the “development approval” or “the approval”.   “Development approval” is defined in schedule 3 of SPA as being the result of an original development application (as distinct from any later change), as follows:
  1. a decision notice or a negotiated decision notice that—
  1. approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
  2. 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
  1. a deemed approval, including any conditions applying to it.
  1. [42]
    Even though the definition is narrow, the term ought be considered in its context and harmoniously, if necessary, by adjusting the meaning of competing provisions to achieve the result which will give effect to the purpose and language of those provisions.[29]
  1. [43]
    In a case like this, where a development approval has been permissibly changed pursuant to SPA, the approval as changed must be taken to be valid and effective,[30] for the purposes of any further request to make a permissible change.  It is well established that a development approval must be treated as valid until it is declared invalid by a Court of competent jurisdiction.[31]  If a person wished to challenge the validity of the earlier approved request for a permissible change (for example, the 2012 approval) that can only be done in declaratory proceedings suitable for the purpose.[32]
  1. [44]
    As a matter of common sense, an applicant can only seek to change the last manifestation of a development approval, which becomes the benchmark or yardstick to identify the extent of the proposed change. That is, if no permissible changes were approved, then the original development approval provides the comparative benchmark. If one or more permissible changes were approved, then the changed development approval (as amended from time to time)[33] would provide the comparative benchmark.  This would properly identify the contemporary development rights that attached to the land immediately before the proposed change.[34]  However, the permissible change process should not permit an applicant to incrementally change an approval by a series of requests and thereby create a new development substantially different to that originally approved.[35] 
  1. [45]
    This approach is consistent with the conventional approach to statutory interpretation iterated in s 14H(1) of the Acts Interpretation Act 1954 (Qld), which provides:

“(1)  In an Act, a reference to a law (including the Act) includes a reference to the following—

(a) the law as originally made, and as amended from time to time since it was originally made; …”

  1. [46]
    Whilst a development approval may not be a ‘law’ within the meaning of s 14H(1),[36] it seems to me that the same approach should prevail in relation to s 367(1) of SPA unless it is displaced by a contrary intention.[37]
  1. [47]
    I am unable to find a contrary intention in the legislation. If the drafter intended to confine the consideration to the original development approval, it would have been simple enough for s 367(1) to clearly say so, for example see s 959C of SPA where the development approval is identified as the “original approval” as distinct from a related application.
  1. [48]
    In my view, “development approval” and “the approval” in s 371(1) should be read as being a reference to the development approval as originally made and as amended from time to time since originally made. 
  1. [49]
    This approach is also reinforced by the inclusion of the words “because of the change”, which require the causative effect of the change in relation to the four factors in s 376(1)(a) to (d).
  1. [50]
    Rather unusually, the phrase “because of the change” in s 367(1) was added on 14 May 2013 by s 203D of the Land Water & Other Legislation Amendment Act 2013 (2013 Act no. 23), which inserted a new s 51A in the Sustainable Planning & Other Legislation Amendment Act (No 2) 2012 (2012 Act no. 34), which in turn had the effect of adding the key words into s 367(1) of the SPA.  The Explanatory Notes for the amendment provide little assistance about the added phrase.
  1. [51]
    In my view, the phrase “because of the change” in s 367(1) requires a causal connection between the permissible change and the factors listed in the subsection.  The words create an exhaustive and decisive test involving questions of fact in relation to each of the factors.  For example, it would be sufficient for the appellant to show that, ‘but for’ the proposed change, each of the factors would not occur.   Where there are multiple causes, it seems to me that the appellant must exclude the proposed change as the determinative, material, substantial or a dominant cause of each relevant factor in s 376(1).

Does the change result in a substantially different development – s 367(1)(a)

  1. [52]
    The permissible change process enables an applicant to request a change to a development approval without the need for the complexity and delay of a new development application and public notification, so long as it would not, because of the change, “result in a substantially different development”.
  1. [53]
    The test of “substantially different development” has been considered by this court on numerous occasions in the context of minor changes to development applications and permissible changes to approvals. 
  1. [54]
    The assessment of whether the cumulative effect of a proposed change would, or would not, result in a substantially different development involves matters of fact and degree, considered broadly and fairly.[38]  In doing so, as I aver above, the process should not circumvent the requirement for a development application, by allowing a substantially different development (to that originally approved) to evolve by incremental changes through a series of requests.
  1. [55]
    Whilst not binding, regard may be had to the ministerial guideline issued pursuant to s 759(1)(c) of SPA, being Statutory Guideline 06/09 “Substantially different development when changing applications and approvals”.  The Guideline provides guidance for applicants and assessment managers to determine if a proposed change results in a substantially different development.
  1. [56]
    The Guideline provides at pages 3 and 4 that:

"Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would therefore not be a minor change or a permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants determine whether a change would result in a substantially different development and is not intended to be exhaustive.

A change may result in a substantially different development if the proposed change.

  • involves a new use with different or additional impacts
  • results in the application applying to a new parcel of land
  • dramatically changes the built form in terms of scale, bulk and appearance
  • changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment
  • removes a component that is integral to the operation of the development
  • significantly impacts on traffic flow and the transport network, such as increasing traffic to the site
  • introduces new impacts or increases the severity of known impacts
  • removes an incentive or offset component that would have balanced a negative impact of the development
  • impacts on infrastructure provision, location or demand."
  1. [57]
    In Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council[39] Rackemann DCJ said of the Guideline:

"It may be noted that the list provided in the Guideline is a list of those changes which "may" result in a substantially different development.  It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different.

It may also be noted that the list is not intended to be exhaustive. There may be other changes not listed in the Guideline which, in a particular case, can be judged to be more than minor, in that it involves a substantially different development.  It may also be noted that the focus of the list in the guideline is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts."

  1. [58]
    I have already described, by way of background, the nature and extent of the development subject of the original approval, subsequent changes, and identified the proposed change.
  1. [59]
    The development subject of the original approval, despite the application for more, comprised a 40 lots and a conservation park (in lieu of Lots 41 to 44 in the north eastern corner of the site). By a series of changes the lots were increased to 49 lots, including reintroduction of the originally proposed 4 lots in the north-eastern corner of the site. The current application for a permissible change comprises an increase in the number of lots in the reconfiguration of a lot approval from 49 to 52, and some amendments to the building envelopes so the area of building envelopes increases by approximately 192.4m2.
  1. [60]
    The resultant use will remain one for detached dwellings and attached dwellings generally in accordance with a plan of development. The proposed increase of allotments does not of itself cause any different or additional impacts. In Auspacific Engineers Pty Ltd v Scenic Rim Regional Council[40], Robin QC DCJ was satisfied that an increase from 224 to 298 residential lots in a reduced footprint did not result in a substantially different development.  The applicant here seeks to achieved the additional allotments by reconfiguring the existing allotments (essentially, 4 lots into 7), coupled with minor changes to the development footprints.  In the result there will be no inappropriate incursion on sensitive gully areas, and there will be no significant impacts from the removal of some additional trees.[41]  Considered broadly and fairly, it seems to me that the proposed change does not cause a new use with different or additional impacts, because of the change.
  1. [61]
    The proposed change is entirely contained in the original parcel of land subject of the original approval, described as Lot 10 on RP153301, Lot11 on RP153301, Lot 12 on RP153301 and Lot 13 on RP153301. A new parcel of land will not result because of the change.
  1. [62]
    No changes are proposed to either side or rear boundaries or to setbacks from adjacent properties. The additional three lots will be created within the existing development footprint, and a relatively small increase of the building envelopes by approximately 192.4m2.  Buildings will be contained within the building envelopes.  The need maintain residential amenity within the same area is likely to result more smaller buildings on 7 lots rather than fewer, but potentially larger, buildings on the existing 4 lots. Any change will be further ameliorated by the location of the north-eastern portion of the land.  I therefore find that the change will not dramatically change the building form in terms of scale, bulk and appearance. 
  1. [63]
    The development will continue to operate as a residential subdivision. The layout of the subdivision in terms of location, road configuration, setbacks and open space remain unchanged. There is no proposed change to the area to be dedicated to open space and its function remains unchanged.[42]  It seems to me that the change facilitates the ability for the proposal to operate as intended. 
  1. [64]
    The change does not remove any component that is integral to the operation of the proposal.
  1. [65]
    No amendments are proposed to the existing approved road network in terms of design, alignment or construction. The addition of 3 more dwellings may generate more traffic but this could not be reasonably expected to be significantly higher than the approved development peak-period traffic volumes. Therefore, any associated impacts as a result of traffic (such as noise, amenity or turning volumes) accessing the site from Kopps Road are unlikely to exceed the previously approved development proposal.[43]  It seems to me that the change will not significantly impact the traffic flow or the transport network.
  1. [66]
    I am unable to discern any significant introduction of new impacts or increases to the severity of known impacts because of the proposed change. There are no significant impacts from the removal of six additional trees.[44]  The evidence affirms that there will be no new traffic or civil engineering impacts.[45]  
  1. [67]
    The request does not seek to remove any components of the development. In particular, it does not change the proposed rehabilitation of the Open Space Area, which offsets the removal of vegetation outside the Open Space Area.[46]  I am satisfied that the proposed change will not remove any incentive or offset component that would have balanced a negative impact of the development. 
  1. [68]
    The proposed change will not impact on infrastructure provision, location or demand.[47]
  1. [69]
    Having regard to these factors in the circumstances of this case, I am satisfied that that the proposed change would not result in a substantially different development because of the change.

Changes to Referral Agencies or Level of Assessment - s 367(1)(b)

  1. [70]
    Pursuant to s 367(1)(b) of SPA the court must be satisfied that, if the application for the approval was remade including the change, it would not require referral to additional concurrence agencies,[48] or change the level of assessment to an impact assessment.[49] 
  1. [71]
    If an application for the approval were made today, including the change, it would require referral to the Department of State Development, Infrastructure & Planning in relation to vegetation clearing.[50] Such a referral would have been required without the change.[51]  Therefore, no additional concurrence agencies all called up because of the change.
  1. [72]
    Similarly, the level of assessment remains unchanged. The approval including the proposed change would still require impact assessment.[52]

Likelihood of Submission – s 367(1)(c)

  1. [73]
    The next factor is in s 367(1)(c) of SPA, and concerns whether the “… change … would not … because of the change … be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change …”.
  1. [74]
    The mere fact that a prospective submitter has communicated with a Council, and asserted a desire to make a submission objecting to the proposed change, will not affect the operation of the statutory provision. My consideration of the matters raised by him, and other matters, are relevant to my broader consideration of the likelihood of submissions as required by s 367(1)(c) of SPA.
  1. [75]
    The following principles are relevant to my consideration of s 367(1)(c):
  1. The words “because of the change”, as discussed above, require a causal connection between the permissible change and a likely submission.  The question is whether the proposed change would provoke an adverse submission that was not provoked by the pre-existing approval as amended from time to time.[53] 
  2. “Likely” in this context conveys a notion of something substantial, and ought be construed as a ‘real’ or ‘not remote’ chance or possibility regardless of whether it is less or more than 50 per cent.[54]  In relation to causing a person to make a submission, the word is synonymous with ‘prone’, ‘with a propensity’ or ‘liable’.[55]
  3. Consideration must be given to the likelihood of submissions “objecting to the proposed change” being made “on a relevant basis at least”.[56]  The question here is whether the submission raises a new objection about the change itself and not about the pre-existing approval as amended from time to time.
  4. The potential submitter must be assumed to be objective and rational,[57] and to be acting reasonably.[58] 
  5. This is a hearing anew, and the court must consider the matter afresh, and form its own opinion as the responsible entity, regardless of the council’s former opinion.[59]
  1. [76]
    The only two submitters to the original development application do not oppose the request for the change.[60]  There are no remaining submitters to the original application who would be likely to lodge a submission to the request for a permissible change the subject of these proceedings. 
  1. [77]
    However, Mr Young, who was not a submitter to the original application, asserts that he would have made a submission, if the circumstances allowed.
  1. [78]
    Mr Young is the owner of land on the southern side of Kopps Road opposite lot 14 which has a long narrow easement frontage to Kopps Road. Immediately in front of his lot is Reserve 283 which is Crown Land held by the Council as trustee.[61]  Mr Young served as a councillor for the respondent council from 2000 to about April 2012.[62]  During that time he was involved in planning committees, including the City Planning Committee and the Strategic Planning Committee.[63]  The council’s minutes for the meeting of 8 August 2011 record that Mr Young abstained from voting on the original development application.
  1. [79]
    Mr Young corresponded with the respondent and later with the appellant’s solicitors. Relevant correspondence from Mr Young is extracted in the affidavit of Mr Nicholls, including:
  1. Email from Mr Young to the Council dated 17 October 2014;
  2. Email from Mr Young to the Council dated 20 October 2014;
  3. Email from Mr Young to the Council dated 6 November 2014;
  4. Email from Mr Young to the Council dated 7 November 2014;
  5. Letter from Mr Young to the Council dated 5 December 2014; and
  6. Letter to from Mr Young to the appellant’s solicitors dated 27 January 2015.
  1. [80]
    Having considered these communications, it seems to me that Mr Young consolidated the substance of his objections in his letter dated 5 December 2014, titled “Objection to Permissible Change request”. Mr Young expressed his objection “to the proposal to further intensify development of the sight” (sic) in relation to density, the treatment of a “watercourse” on the site, vegetation clearing, and the slope of the land.

Density

  1. [81]
    The Kopps Road Structure Plan indicatively recommends a density of 10 dwellings per net hectare,[64] that is, one dwelling per 1000m2.  A net calculation requires the exclusion of any open space and conservation park areas.
  1. [82]
    Mr Young correctly refers to the Kopps Road Structure Plan and asserts that the density should “not exceed ten lots per hectare (net)”.[65]  Mr Young seems to be distracted by the planning treatment of the land between the original approval and the changes before the current proposal.   In that context, he accurately asserted that the density requirement was “already exceeded”.[66]
  1. [83]
    This is true. The original decision contained 44 lots and conservation park area of 30,405m2 and resulted in a density of 12.9 lots per hectare (net). The last manifestation of the development, immediately before the current change, contained 49 lots and a reduced conservation area of 15,616m2, resulting in a reduced density of 10.9 lots per hectare (net). 
  1. [84]
    The current change seeks to add 3 more lots, increasing the total to 52 lots, but maintains the conservation park area of 15,616m2, with a resultant density of 11.5 hectares (net).  The change affects the area of 13,659 m2 in the north-eastern part of the land (previously lots 41 to 44). 
  1. [85]
    The request effectively changes four lots in this area into seven lots, which results in a density in the affected area of about 0.5 lots per hectare. The density in the north-eastern part of the land, which was directly impacted by the change, well complies with the Kopps Road Structure Plan. This is in stark contrast to the balance of the land unaffected by the change, which, like the original development approved and its last manifestation, already exceeded the recommendation in the Kopps Road Structure Plan.
  1. [86]
    Further, an objective and rational submitter would appreciate that the land falls within the urban residential precinct under the Kopps Road Structure Plan, which affirms its suitability for residential development. The density of the development is consistent with the PC2 and PC15 of the Emerging Communities Domain Place Code, and general purpose and the Urban Residential Purpose (s 11.4.2) of the Kopps Road Structure Plan. In a practical sense, the site density is consistent with the capacity and function of the development in terms of traffic, engineering and ecological function.
  1. [87]
    As discussed above, the test under s 367(1)(c) requires a causal connection between the permissible change and a likely submission. When considered in context, it is difficult to see any causal connection between the proposed change and Mr Young’s correspondence, especially his foreshadowed submission.[67]
  1. [88]
    Whilst his proposed submission raises an objection about the pre-existing approval as amended from time to time, it is not a new objection about the change itself. Further, the tenor of the correspondence demonstrates that Mr Young’s objections are provoked by his discontentment with the pre-existing approval as amended, and not “because of the change” as required by s 367(1)(c) of SPA. 

Watercourse

  1. [89]
    Mr Young’s foreshadowed submission also objects to the change as impacting on a watercourse and associated gully.
  1. [90]
    It is difficult to discern the relevant objection, but it appears to involve the following:
  1. Mr Young relies on the an objective of the Kopps Road Structure Plan to “enhance and protect watercourse, riparian zones, remand vegetation and the prominent north-south ridge by ensuring development is economically and ecologically sustainable over the long term”.
  2. Whilst, he concedes that the gully is not shown on council’s current mapping of waterways, he asserts that the “draft City Plan recognises this waterway and confirms a buffer of 30 m on either side of the outer banks”, and the associated “gully is clearly there and plain for people to see”.[68]
  3. After referring to the “Planning Scheme Policy” provisions, he poses a question in relation to the original development proposal:  “was a proper ecological assessment undertaken and if so, how did this gully not become and thereafter properly consider in the development proposal”.
  4. He then asserts that:  “The gully has not been adequately protected under the existing approved layout.  The proposal to add allotment in the area will only further degrade the area and compromise the objectives of the Planning Scheme”.
  5. Finally, on this topic, he asserts that the “proposal does not” enhance and protect watercourses.”
  1. [91]
    On their face, these arguments appear genuine and well considered. However, they lose all traction when it is appreciated that the site is not crossed by the significant waterways in the Kopps Road Structure Plan, being Saltwater Creek or the Coomera River.[69] 
  1. [92]
    The area identified as ‘Other Natural Waterway’ in the Planning Scheme’s Overlay Map OM11-1 Natural Wetland and Waterway Areas,[70] is not impacted by the proposed change.  It is not located in the north-eastern portion of the site subject of the proposed change.  Similarly, although the land is within the ‘Major Linkages (Land & Water Based) designation in the Scheme’s Overlay Map OM20-1 Conservation Strategy Plan, the proposed change does not affect the linkage and connectivity addressed in the approved Open Space System.  Further inquires have confirmed that the proposed lots will not interfere with any adjacent areas,[71] and any other disturbance is subject of appropriate approvals.[72]
  1. [93]
    Further, Mr Young’s objection loses credibility by referring to a report in support of the original application in August 2011, and obsolete statements made by the appellant in an earlier permissible change request dated 4 July 2014, which was later withdrawn.[73]  Again, the correspondence demonstrates that Mr Young’s objections are provoked by his discontentment with the pre-existing approval as amended, and not “because of the change” as required by s 367(1)(c) of SPA.  He does not raise any new objection arising from the change itself.
  1. [94]
    It follows that I can find no substance in this foreshadowed objection in relation to the proposed change.

Vegetation

  1. [95]
    The change from 4 lots into 7 lots requires some slight amendments to the building envelopes, and the associated driveways. As a consequence of the driveways, the Request seeks to remove an additional 6 trees from the site.[74] 
  1. [96]
    Mr Young’s correspondence raises concerns about the ecological assessment of the land and the clearing of vegetation on the land and the adjoining land at 274 Kopps Road.
  1. [97]
    The appellant relies upon the affidavit evidence of Mr Pascoe, an environmental planner, and his assessment of potential ecological impacts associated with the proposed change.[75]  The foundations of Mr Young’s foreshadowed objections have been shown to be incorrect and the objection fatally flawed:
  1. The "gully" referred to by Mr Young is not mapped on any of the overlay maps within Council's Planning Scheme. It has been assessed and found not ecologically significant under the Council's Planning Scheme Policy 8 Guidelines for Ecological Assessments because it does not consist of core habitat areas, ecological corridors or buffer areas for significant species or habitat and poorly conserved ecosystems. The gully does not support important ecological features and functions of the Site and is not identified in Appendix 4: Schedule of Ecologically Significant Areas. The vegetation in the gully was determined not to be an endangered or of-concern regional ecosystem;[76]
  2. Mr Young asserts that the entire site is mapped nature conservation - priority species. That is incorrect. It is not mapped as such in the current planning scheme;[77]
  3. Mr Young asserts that the entire site is mapped hinterland to coast critical corridor.  That is incorrect.  It is not mapped as such in the current planning scheme;[78]
  4. Mr Young asserts that a considerable part of the site, and specifically the area that is vulnerable to the proposed additional lots, is mapped nature conservation vegetation management - high value.  That is incorrect.  It is not mapped as such in the current planning scheme;[79]
  5. Mr Young's comments about ecological assessment suggest that a proper ecological assessment was not undertaken because the gully was not identified and protected.  The purpose of a Detailed Ecological Site Assessment is to identify and protect Ecologically Significant Areas. As stated above, the gully was identified, but was not found to be an ecologically significant area in accordance with Policy 8: Guidelines for Ecologically Significant Areas;[80]
  6. In relation to vegetation clearing on the adjoining site, 274 Kopps Road:[81]
  1. (a)
    Mr Young references an operational works application (PN12981 0/03/DA2), which relates to 274 Kopps Road Oxenford. It is not part of the Request.
  2. (b)
    The vegetation to be removed for the sewer infrastructure offers little floristic or habitat value due to the complete lack of understorey and disturbed urban environment. No significant habitat features were observed within these trees.
  1. [98]
    In my view, there will be no significant impacts associated with the removal of the six additional trees because of the proposed change. The ecological value of the site remains preserved in the Open Space Area. Even if the six trees were retained, any value would be affected by disturbance caused by routine backyard maintenance
  1. [99]
    Mr Young’s objection in relation to vegetation also refers to a report in support of the original application in August 2011, and obsolete statements made by the appellant in earlier permissible change request dated 4 July 2014, which was later withdrawn.[82] Mr Young’s objections are provoked by his discontentment with the pre-existing approval as amended, and not “because of the change” as required by s 367(1)(c) of SPA.  He does not raise any new objection about the change itself.
  1. [100]
    For these reasons, I find no substance in this foreshadowed objection in relation to the proposed change.

Slope

  1. [101]
    Mr Young Makes an oblique reference to slope stability, and relies upon the Kopps Road structure Plan in relation to the creation of lots on slopes in excess of 15%, and in particular, that the applicant must restrict cut or fill to less than one metre in height; adequately stabilise slopes; retain significant stands of vegetation and drainage lines; and result in development that is visually unobtrusive.
  1. [102]
    Small portions of the original Lot 10 and Lot 13 are identified as “Moderate Rosh of Instability” in the Planning Scheme according to the Overlay Map OM16-14 Areas of Unstable Soils and Areas of Potential Land Slip Hazard.[83]
  1. [103]
    However, Mr Young does not raise any new objection about the change itself because the change does not alter the way the slopes are to be developed. The additional three lots are accommodated within the existing development footprints. Slope sensitive guidelines are provided in the proposed development layout plan,[84] in an identical way to the approved sloped sensitive guidelines.[85]  There is no change to condition 1 of the material change of use approval which requires development to be carried out in accordance with the identified Existing Slope Analysis by Sedgman Yates dated 8 April 2013.[86]
  1. [104]
    Mr Young’s objection in relation to slope also refers to a report in support of the original application in August 2011. Again, this supports a strong inference that Mr Young’s objection is provoked by his discontentment with the pre-existing approval as amended, and not “because of the change” as required by s 367(1)(c) of SPA. 

Other Submissions

  1. [105]
    Mr Young’s correspondence to the appellant’s solicitors of 27 January 2015[87] not only sought to reinforce Mr Young’s objections, but also the original submitters, and three other unidentified people to whom he refers.  He says in part:

“Your Background is deficient, in that it does not include material facts including:

  • The approved development was substantially altered in October 2012 by way of Council approving a ‘Permissible Change’ application.
  • The changes arising from that were substantial and significant…..

Your Request to Change Approval is deficient in that:”

…..

  • I believe that it is misleading to merely state to the Court that Plant and Cantrell were consulted and agreed that they did not object to the proposed changes.  In fact, Plant and Cantrell lodged numerous correspondences with Council in strong objection to the changes previously approved in October 2012…

.....

I am advised that at least three other people would make properly made submissions to Council against the current Request to increase the number of allotments.  Those same people have confirmed that if the opportunity had existed they would also have made properly made submissions in regard to:

The August 2012 proposal that resulted in substantial changes to the outcomes;

The October 2014 proposal to remove vegetation from tan adjacent (new) parcel of land;

The October 2014 proposal to place a sewerage line through an adjacent (new) parcel of land.”

  1. [106]
    These assertions cannot be allowed to improperly distract from the proper application of s 367(1)(c) of SPA.  The focus of attention must remain on the language of the statutory provision, properly interpreted, and, in my view, the fundamental basis of Mr Young’s correspondence is legally misconceived.  I see no reason to disturb or alter the matters discussed above.
  1. [107]
    Quite apart from the specific matters discussed above, in my view, Mr Young’s correspondence seeks to challenge the permissible change request approval granted in 2012. This is evident in his correspondence of 20 October 2014 and confirmed by his letter of 5 December 2014:[88]
  • The site was approved for development of 44 lots and a significant area of conservation park in 2011. Councillors changed the officer’s recommendation and ensured protection of the north-eastern area of the site in what was considered a win-win, with the developer achieving the full requested yield and the public achieving the permanent protection of a steep and visually prominent area of remnant vegetation and the watercourses within.
  • However, in 2012, officers approved a Permissible Change application and reversed the August 2011 Council decision, permitting a crossing of the main gully line, and a road and residential areas in the area that was to be conservation park.
  • There is no doubt that I and others would have lodged submissions against the changes proposed in 2012. We were denied the opportunity to make submissions by GCCC officers who held that no new submissions would be made because the development layout was the same as had been notified in 2011.
  1. [108]
    Further, I accept Mr Gore’s submissions that it is also relevant that:
  1. During the public notification period from 20 April 2011 to 25 May 2011, Mr Young was the registered owner of 275 Kopps Road, but he did not make a submission.[89]  He was a councillor for the respondent council from 2000 to about April 2012,[90] and was aware of the development.[91] 
  2. Mr Young has had ample notice of the appellant’s proceeding (from both the Council and the appellant), and has not sought to participate in the proceeding.  In his letter of 27 January 2015, he appeared to express surprise that he had been given notification.[92]
  3. The only submissions made about the original development application were from the adjoining owners (Plant and Cantrell), who have indicated that they do not object to the changes.[93]
  4. The issues raised by the original submitters related to a dam, power, privacy, future development on the adjoining lot, conservation and recreation intent, fencing, stormwater runoff, public transport, access to lots 23 and 24 and sewer reticulation.  Those issues are not affected by the change. The reference to conservation and recreation intent relates to a comment that few existing stands of trees were to be retained; the change does trigger the removal of six additional trees but they exhibit no connectivity or any other features of ecological significance.  The submissions do not raise issues with density or “overdevelopment” of the site.  The submissions do not mention a watercourse, or a gully, or slope stability.
  5. The change does not result in substantially different development, and that is a powerful indicator that any person, acting reasonably, would not make a submission which was relevant, rational, and objectively based; that is particularly so when there are no amenity impacts and no unacceptable new impacts.
  6. The additional 3 lots are accommodated within the existing development footprint, and the change is consistent with the planning scheme intent for the area.
  1. [109]
    For all these reasons, in my opinion the change would not, because of the change, be likely, to cause a person to make a properly made submission objecting to the proposed change in accordance with s 367(1)(c) of SPA.

The changewould cause any prohibited development – s 367(1)(d)

  1. [110]
    There is no issue that the change would cause any prohibited development.

Assessment

  1. [111]
    The assessment of the request is governed by 374 of SPA.  The parties did not press any other issues arising from 374 of SPA, however it is incumbent on the court, as the responsible entity, to deal with the assessment afresh and then decide the request under s 375.
  1. [112]
    Relevantly, I have had regard to:
  1. The information included with the request,[94] and any further evidence adduced at in this appeal, including: planning matters;[95] traffic engineering;[96] civil engineering assessment of water; sewerage and stormwater demands;[97] impacts on gullies, waterways and vegetation;[98] and slope stability;[99] and
  2. As if the request were a development application - the planning instruments, plans, codes, laws and policies applying when the original application was made, with appropriate weight those instruments applying when the request was made; and
  3. The submissions made about the original application.
  1. [113]
    In my view, it is clear that the proposed change will not alter the assessment and outcome of the development application, and the changed development approval, when considered against the relevant planning scheme, plans, codes laws and policies. I have referred to some matters above in relation to my consideration under s 367 of the SPA.  In addition, I have considered the force of the submissions to the original application, and, as discussed above, I opine that no new submission is likely because of the change.[100] 
  1. [114]
    Of course, the Plan of Development and conditions will need revision to address, where appropriate, the reconfiguration of 4 lots into 7 lots and consequential amendments to the building envelopes in the north-eastern part of the land.
  1. [115]
    For these reasons, I have no hesitation in deciding that the request should be approved subject to reasonable and relevant conditions to be determined pursuant to s 375 of SPA.

Conclusion

  1. [116]
    Looking at the matter broadly and fairly, I conclude that the proposed change to the development approval is a permissible change in accordance with s 367 of SPA.
  1. [117]
    Having assessed the request under s 374 of SPA, I conclude that the request should be approved subject to reasonable and relevant conditions to be determined pursuant to s 375 of SPA.  This will need to be subject of a further hearing in due course.
  1. [118]
    The appeal is allowed.
  1. [119]
    I will hear further submissions on the appropriate orders and the future conduct of the proceedings.

Judge D.P. Morzone QC

Footnotes

[1]Affid. Hailey - para 3

[2]Affid. Nash - p 1049 (The approved 44 lot plan)

[3]Affid. Nash - p 1050 (The approved 49 lot plan)

[4]Affid. Nash - Exhibit page 580

[5]Affid. Nash - Exhibit p 587

[6]Affid. Nash - Exhibit p 587

[7]Affid. Nash - Exhibit p 587

[8]Affid. Nash - Exhibit p 587

[9]Affid. Nash - Exhibit p 588

[10]Affid. Nash - Exhibit p 589

[11]Affid. Nash - Exhibit p 589

[12]Affid. Nash - p 1051 (Approved 49 lot plan with staging)

[13]Affid Nash - para 40

[14]Affid. Nash Exhibit MN-1, pp 1 - 122

[15]Affid. Nash - Exhibit p 123 - 125

[16]Affid Nicholls – Exhibit DLN-1, p.182

[17]Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1KB 223 at 223-234 per Lord Greene MR

[18]Cf. Coles Myer Properties Ltd v BCC [1997] QPELR 337 at 339 (re Local Government (Planning & Environment) Act, s .4.15); Lyons v Misty Morn Developments Pty Ltd [1998] QPELR 268 at 272 (re 1987 Brisbane Town Plan, s .20.2.1.6B)

[19]Palmer v Gold Coast CC [2014] QPEC 73 at [100]) and [120]; Alati v BCC [1994] QPLR 112 at 117F-J; GPD Services Pty Ltd v Gold Coast CC [2010] QPELR 30; and Queensland Heritage Council v Corporation of the Sisters of Mercy (2014) 203 LGERA 39.

[20]The definition of “minor change” in schedule 10 of IPA (set out at [9]); there was a right to appeal against a deemed refusal (s 4.1.30(4)); an appeal was by way of hearing anew (s 4.1.52)

[21]Hayday at [6] – [7]

[22]Hayday at [24]-[25]

[23]Hayday at [29]

[24]Hayday at [27]

[25]Hayday at [23]-[24]

[26]Cf. Lacey v A-G(Q) (2011) 242 CLR 573 at [57] affirming Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]

[27]See Christian Outreach Centre v Toowoomba Regional Council & HSBG P/L [2012] QPEC 29 at [29]-[30] per Searles DCJ and also the detailed analysis in Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32 at [15] – [24] per RS Joese DCJ.  Contrast Scanlon Property Group Pty Ltd v Sunshine Coast RC [2012] QPELR 394 at 395C

[28]Affid Nicholls - ex.DLN-1 p.130 (6 November 2014), p.140 (5 December 2014)

[29]Project Blue Sky Inc v ABA (1998) 194 CLR 355, 381-382

[30]SPA, s 377

[31]eg Smith v East Elloe RDC 1956 AC 736, 769-770; Swadling v Sutherland SC 1994 82 LGERA 431, 436; Coalcliff Community Association Inc v Minister for Urban Affairs & Planning 1999 106 LGERA 243, 260; Hilltop Planners Pty Ltd v Great Lakes Council 2003 127 LGERA 333, 340

[32]eg as in Christian Outreach Centre v Toowoomba RC 2012 QPELR 542

[33]See s 377 for when the decision to approve a request for a permissible change takes effect.

[34]See effect of ss 245 and 377 of SPA

[35]Cf. Arnold & Arnold Pty Ltd & Ors v Gold Coast City Council [2006] QPEC 075 at p 3

[36]Under s 14H, a reference to a law includes a reference to statutory instruments made or in force under that law.  Under the, s 36 of the Act, ‘statutory instrument’ has the same meaning as under s 7 of the Statutory Instruments Act 1992, being an instrument that is: made, directly or indirectly, under an Act; and of a public nature that unilaterally affects rights and liberties (including, for example, regulations, orders in council, rules and by-laws).

[37]Cf. Pfeiffer v Stevens (2001) 209 CLR 57 per McHugh J and Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651. See also s 4, Acts Interpretation Act 1954 (Qld).

[38]Cf. Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council [2010] QPELR 510 at 512.  See Emaas Pty Ltd v BCC [2014] QPELR 579 at 582-586

[39]Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council [2010] QPELR 510 at 512

[40][2011] QPELR 161

[41]Affid. Pascoe, paras 17 and 19, subject to correction that tree 30 was required by the original layout.

[42]Affid. Pascoe para.s 16 and 19

[43]Affid. Bollavaram

[44]Affid. Pascoe, para.s 17 and 19

[45]Affids Bollavaram and Popa

[46]Affid. Pascoe para.19

[47]Affid. Popa

[48]SPA, s 367(1)(b)(i)

[49]SPA, s 367(1)(b)(ii)

[50]Affid. Nash, para. 59

[51]Affid. Nash, para. 58

[52]Affid. Nash, paras 60 and 61

[53]Cf. Carillon Development Ltd v Maroochy SC [2000] QPELR 216 at [14]; Ausbuild Pty Ltd v Redland SC 2001 QPELR 409, 410[10]; Kangaroo Point Residents Association v BCC [2001] QPELR 321, 322 at [7]; Colman v BCC 2002 QPELR 288, 290[14]; Baptist Union of Queensland v BCC [2002] QPELR 523 at 526F-H; Sinnamon v Miriam Vale SC [2003] QPELR 195 at [21]; Rankeilor Developments Pty Ltd v BCC [2011] QPELR 275 at 276; see also Scanlon Property Group Pty Ltd v Sunshine Coast RC [2012] QPELR 394 at 395L; see also Fogg Meurling Hodgetts “Planning & Development – Queensland” at [6.5290].

[54]Cf. Boughey v R (1986) 161 CLR 10 at 20 - 21 per Mason, Wilson and Deane JJ and at 42 per Brennan J.  See Christian Outreach Centre v Toowoomba Regional Council & HSBG P/L [2012] QPEC 29 at [29]-[30] per Searles DCJ and also detailed analysis in Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32 at [15] – [24] per RS Joens DCJ.  Contrast Scanlon Property Group Pty Ltd v Sunshine Coast RC [2012] QPELR 394 at 395C

[55]Cf.  Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 27 ALR 367 at 380

[56]Scanlon Property Group Pty Ltd v Sunshine Coast RC [2012] QPELR 405 at 407B-C

[57]Ausbuild Pty Ltd v Redland SC 2001 QPELR 409, 410[11]; Sinnamon v Miriam Vale SC [2003] QPELR 195 at [22]

[58]Collard v BCC [2010] QPELR 635 at 637

[59] Cf. Lacey v A-G(Q) (2011) 242 CLR 573 at [57] affirming Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]

[60]Affid. Nash Exhibit MN-1, pp 943-949 and Affid. Hailey Exhibit BH-1, pp 8-11

[61]Affid. Nash Exhibit MN-1 at p 970

[62]Affid. Nash – para 50(a)

[63]Affid. Nash – para 50(b)

[64]Affid. Nash – Exhibit MN-1 at pp 987 to 993 – Kopps Road Structure Plan

[65]Affid. Nicholls – Exhibit p. 135

[66]Affid. Nicholls – Exhibit p. 135

[67]Affid. Nicholls – Exhibit p. 135

[68]Affid. Nicholls – Exhibit p 135-136

[69]Affid Nash, para 53(a)

[70]Affid Nash – Exhibit p 995

[71]Affid Hailey (filed by leave), and Affid. Pascoe, para 17

[72]Affid Hailey (filed by leave), and Affid. Pascoe, para 18

[73]Affid Nicholls – Exhibit p 135-136

[74]Affid. Pascoe, paras 9 and 10

[75]Affid. Pascoe

[76]Affid. Pascoe – para 17(g)

[77]Affid. Pascoe – para 17(h)

[78]Affid. Pascoe – para 17(i)

[79]Affid. Pascoe – para 17(j)

[80]Affid. Pascoe – para 17(k)

[81]Affid. Pascoe – para 19

[82]Affid Nicholls – Exhibit p 135-136

[83]Affid. Nash – Exhibit p. 996

[84]Affid. Nash – Exhibit p. 102

[85]Affid. Nash – Exhibit p. 101

[86]Affid. Nash – Exhibit p. 110

[87]Affid Nicholls - ex.DLN-1 pp.188-189

[88]Affid Nicholls - ex.DLN-1 p.135

[89]Affid Nash - para 50(c)(e)

[90]Affid. Nash – para 50(a)

[91]Affid. Nash – para 50(b)

[92]Affid Nicholls - ex.DLN-1 p.188

[93]Affid Hailey -  ex.BH-1 pp.8-11

[94]Affid Nicholls

[95]Affid. Hiddleston and Affid Nash

[96]Affid. Bollavaram

[97]Affid Poppa

[98]Affid. Pascoe

[99]Affid Nash , see also on miscellaneous matters the further affid. Aff. Hailey (filed by leave)

[100]See discussion in respect of s 367(1)(c) above. As to the original submitters see Affid. Hailey, paras. 5 – 8, and  pp 8 - 11 of BH-1.

Close

Editorial Notes

  • Published Case Name:

    Orchard (Oxenford) Developments Pty Ltd (ACN 167 310 509) v Gold Coast City Council

  • Shortened Case Name:

    Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council

  • MNC:

    [2015] QPEC 11

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    02 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alati v Brisbane City Council (1994) QPLR 112
1 citation
Jump To
Cite 1 - (1994) QPLR 112
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Arnold & Arnold Pty Ltd v Gold Coast City Council [2006] QPEC 75
1 citation
Jump To
Cite 1 - [2006] QPEC 75
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K.B., 223
1 citation
Jump To
Cite 1 - (1948) 1 K.B., 223
Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409
2 citations
Jump To
Cite 1 - (2001) QPELR 409
Cite 2 - (2001) QPELR 409
Auspacific Engineers Pty Ltd v Scenic Rim Regional Council [2011] QPELR 161
1 citation
Jump To
Cite 1 - [2011] QPELR 161
Baptist Union of Queensland v BCC (2002) QPELR 523
1 citation
Jump To
Cite 1 - (2002) QPELR 523
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
1 citation
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Cite 1 - (1969) 117 CLR 651
Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32
2 citations
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Cite 1 - [2014] QPEC 32
Cite 2 - [2014] QPEC 32
Boughey v The Queen (1986) 161 CLR 10
1 citation
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Cite 1 - (1986) 161 CLR 10
Carillon Developments Pty Ltd v Maroochy Shire Council & Ors (2000) QPELR 216
1 citation
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Cite 1 - (2000) QPELR 216
Christian Outreach Centre v Toowoomba RC (2012) QPELR 542
1 citation
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Cite 1 - (2012) QPELR 542
Christian Outreach Centre v Toowoomba Regional Council [2012] QPEC 29
2 citations
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Cite 1 - [2012] QPEC 29
Cite 2 - [2012] QPEC 29
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
2 citations
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Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Coles Myer Properties Ltd v Brisbane City Council (1997) QPELR 337
1 citation
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Cite 1 - (1997) QPELR 337
Collard v Brisbane City Council [2010] QPELR 635
1 citation
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Cite 1 - [2010] QPELR 635
Colman & Ors v Brisbane City Council & Anor [2002] QPELR 288
1 citation
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Cite 1 - [2002] QPELR 288
Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579
1 citation
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Cite 1 - [2014] QPELR 579
GPD Services Pty Ltd v Gold Coast CC [2010] QPELR 30
1 citation
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Cite 1 - [2010] QPELR 30
Hayday Pty Ltd v Brisbane City Council [2005] QPEC 102
6 citations
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Cite 1 - [2005] QPEC 102
Cite 2 - [2005] QPEC 102
Cite 3 - [2005] QPEC 102
Cite 4 - [2005] QPEC 102
Cite 5 - [2005] QPEC 102
Cite 6 - [2005] QPEC 102
Heritage Properties Pty Ltd v Redland City Council (2010) QPELR 510
2 citations
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Cite 1 - (2010) QPELR 510
Cite 2 - (2010) QPELR 510
Kangaroo Point Residents Association v BCC (2001) QPELR 321
1 citation
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Cite 1 - (2001) QPELR 321
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
2 citations
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Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
Lyons v Misty Morn Developments Pty Ltd and Anor (1998) QPELR 268
1 citation
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Cite 1 - (1998) QPELR 268
Palmer v Gold Coast City Council [2014] QPEC 73
1 citation
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Cite 1 - [2014] QPEC 73
Pfeiffer v Stevens (2001) 209 CLR 57
1 citation
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Cite 1 - (2001) 209 CLR 57
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
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Cite 1 - (1998) 194 C.L.R 355
Queensland Heritage Council v Corporation of the Sisters of Mercy (2014) 203 LGERA 39
1 citation
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Cite 1 - (2014) 203 LGERA 39
Rankeilor Developments Pty Ltd v BCC [2011] QPELR 275
1 citation
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Cite 1 - [2011] QPELR 275
Scanlon Group Pty Ltd v Sunshine Coast Regional Council (2012) QPELR 394
3 citations
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Cite 1 - (2012) QPELR 394
Cite 2 - (2012) QPELR 394
Cite 3 - (2012) QPELR 394
Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405
1 citation
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Cite 1 - [2012] QPELR 405
Sinnamon v Miriam Vale Shire Council (2003) QPELR 195
2 citations
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Cite 1 - (2003) QPELR 195
Cite 2 - (2003) QPELR 195
Tillmanns Butcheries v Australasian Meat Industry Employees' Union & Ors (1979) 27 ALR 367
1 citation
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Cite 1 - (1979) 27 ALR 367

Cases Citing

Case NameFull CitationFrequency
Forde v Toowoomba Regional Council [2016] QPEC 52 citations
Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 443 citations
1

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