Northbrook Corporation Pty Ltd v Noosa Shire Council
[2015] QPEC 24
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- Unreported Judgment
- Northbrook Corporation Pty Ltd v Noosa Shire Council[2015] QPEC 24
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Northbrook Corporation Pty Ltd v Noosa Shire Council[2015] QPEC 24
Northbrook Corporation Pty Ltd v Noosa Shire Council[2015] QPEC 24
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Northbrook Corporation Pty Ltd v Noosa Shire Council & Ors [2015] QPEC 24 |
PARTIES: | NORTHBROOK CORPORATION PTY LTD ACN010996371 (appellant) v NOOSA SHIRE COUNCIL (respondent) and SUNSHINE COAST REGIONAL COUNCIL (first co-respondent) and CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION (second co-respondent) and NORTHERN SEQ DISTRIBUTOR RETAIL AUTHORITY (TRADING AS UNITY WATER) (first co-respondent by election) and FRIENDS OF LAKE WEYBA INC and NOOSA PARKS ASSOCIATION INC and SUNSHINE COAST ENVIRONMENT COUNCIL INC and NOOSA AIRFIELD PTY LTD (third co-respondent by election) |
FILE NO/S: | 1648/14 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court |
DELIVERED ON: | 3 June 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 May 2015 |
JUDGE: | Everson DCJ |
ORDER: | The application is refused. |
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – where the appellant seeks a declaration that proposed changes to a locality plan in an application for a preliminary approval constitute a minor change – whether the changes result in development – whether the changes to the application result in a substantially different development. Sustainable Planning Act 2009 (Qld) ss 7, 8, 230, 241, 242, 350, 495 Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPEC 20, cited Project Blue Sky Inc v ABA (1998) 194 CLR 355, cited |
COUNSEL: | D Gore QC with B D Job for the appellant C Hughes QC with M A Williamson for the respondent N J Kefford for the first co-respondent M Batty for the first co-respondent by election P Beehre for the third co-respondent by election |
SOLICITORS: | Norton Rose Fulbright for the appellant Wakefield Sykes for the respondent Sunshine Coast Regional Council Legal Services for the first co-respondent Department of Environment and Heritage Protection for the second co-respondent Thynne & Macartney for the first co-respondent by election Cartwrights Lawyers for the second co-respondent by election Andrew Morris Legal for the third co-respondent by election |
Introduction
- [1]This is an application in pending proceeding in which the appellant seeks a declaration that the changes it proposes to make to the Noosa on Weyba Locality Plan (“the Locality Plan”), constitute a minor change pursuant to s 350 of the Sustainable Planning Act 2009 (“SPA”).
- [2]The development application the subject of this appeal was made on 20 December 2012 (“the development application”).[1] It sought a preliminary approval for material change of use pursuant to s 242 of SPA to vary the effect of the Maroochy Plan 2000 and the Noosa Plan for a mixed use community title development called “Noosa on Weyba”.[2] The extensive land, the subject of the development application, is located at Eenie Creek Road, Noosaville, Hollett Road, Noosaville and Tidswell Road, Weyba Downs (“the land”). It lies within the local government area of both the respondent and the first co-respondent.[3] Ultimately the development application was refused, giving rise to the appeal before the court.[4] The Locality Plan was submitted in support of the development application and states the way in which the appellant seeks to vary the planning schemes that apply to the land. It states the level of assessment that applies to development of the land and includes a Locality Plan Code for development and supporting material such as plans, architectural guidelines and a schedule of definitions.[5]
- [3]The appellant now wishes to change the Locality Plan. Pursuant to s 495 of SPA the court “must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”.[6] The meaning of “minor change” is set out in s 350 of SPA. The contentious aspect of the definition is that a minor change is a change to the application that “does not result in a substantially different development”.[7] Accordingly, for the court to consider the proposed changes to the Locality Plan in determining the appeal, the appellant must demonstrate that they do not result in a substantially different development.
The proposed changes to the Locality Plan
- [4]The land is approximately 303 hectares in total area, abutting Lake Weyba to the east.[8] In the Locality Plan there are four discrete precincts. Precinct 1 is located near the shore of Lake Weyba. Precinct 2 is further to the west. Precinct 3 is located on either side of Walter Hay Drive, which bisects the site, and precinct 4 is located entirely to the west of precinct 3.[9] The principal changes to the Locality Plan proposed by the appellant include a reduction in the number of precincts from 4 to 2 with the amalgamation of some development areas and the removal of others. Essentially, precinct 1 is reduced in size and intensity, precinct 2 is deleted, precinct 3 is reduced in size and intensity and renamed precinct 2 and precinct 4 is also deleted. The amount of attached housing has been reduced, the lot sizes for detached housing have increased, and the proposed neighbourhood centre in precinct 1 is different. Retirement and special needs housing is no longer proposed.[10] There has been a significant reduction in the proposed density, overall a maximum of 1,009 attached and detached dwellings is replaced by 251 dwelling units, a reduction of over 75%. Attached dwellings have been reduced from 407 to 40, a reduction of over 90%.[11] There have also been considerable changes to the proposed access to the development with the deletion of a roundabout on Walter Hay Drive, at which location there will now be only left in and left out traffic movements. Changes to the internal road linkages, which are also proposed by the appellant, will result in less direct access to most of the proposed development and the loss of the opportunity for public transport services to access precinct 1.[12]
Does s 350(1)(d)(i) of SPA apply to the proposed changes?
- [5]The first basis upon which the appellant argues that the changes do not result in a substantially different development is that none of the changes which are proposed to the Locality Plan will result in any development at all. It is submitted that this is because the proposed changes amount to no more than changes to a proposed planning instrument in circumstances where the development approval which is sought by the appellant is merely a preliminary approval. It is submitted that as a matter of proper interpretation the contentious aspect of the definition of “minor change”[13] does not apply to the proposed changes.
- [6]This argument has at its genesis the concept of a preliminary approval which is provided for in s 241 of SPA. Relevantly, it states that a preliminary approval “approves development, but does not authorise assessable development to take place”.[14] “Development” is broadly defined in s 7 of SPA as any of the following:
“(a) carrying out building work;
(b) carrying out plumbing or drainage work;
(c) carrying out operational work;
(d) reconfiguring a lot;
(e) making a material change of use of premises.”
The development application seeks to have the assessment tables in the Locality Plan override the assessment tables which would otherwise apply pursuant to the relevant planning schemes. Despite merely seeking a preliminary approval, the development application is still subject to the Integrated Development Assessment System (“IDAS”) which is described in s 230 of SPA as “the system detailed in this chapter for integrating State and local government assessment and approval processes for development”. An application for a preliminary approval is comprehensively assessed in a manner similar to other development applications.[15]
- [7]In construing s 350(1)(d)(i) of SPA in the context of a development application for a preliminary approval, it is important to have regard to the principle of statutory interpretation that potentially conflicting statutory provisions should be reconciled so far as is possible. In Project Blue Sky Inc v ABA[16] the High Court observed:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. … Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.”
- [8]The word “result” is defined in the Macquarie Concise Dictionary[17] as, inter alia, “to be the outcome”. When regard is had to the fact that a development application for a preliminary approval is subject to IDAS like other development applications, and that the purpose of the preliminary approval is to provide for development in accordance with the Locality Plan, it is tolerably clear that the term “does not result in a substantially different development” refers to the outcomes in terms of the various categories of development defined in s 7 of SPA which are contemplated by the preliminary approval. Accordingly, s 350(1)(d)(i) does apply to the proposed changes to the Locality Plan.
A substantially different development
- [9]The appellant submits that in any event the changes proposed to the Locality Plan do not amount to a substantially different development. The position of the appellant in this regard is encapsulated in the following statement of Mr Reynolds, the planning consultant engaged on its behalf:
“When the changes are broadly considered, the resulting development will remain subject to Preliminary Approval for a medium scale residential community, with developable areas; land transferred to the Crown for environmental purposes; open space areas and a small scale commercial area.”[18]
- [10]Conversely, the planner who gave evidence on behalf of the respondent, Mr Venn, was of the opinion:
“I further consider that the amended proposal changes the ability of the proposal to operate as intended. The character of the development is changed from a community oriented development with a sense of place to a piecemeal rural residential subdivision remote from necessary services, thereby giving rise to different planning considerations in its assessment.”[19]
- [11]The respondent asserts that the proposed changes to the Locality Plan are significant, representing a different response to both the physical and planning constraints of the land which involve new and different impacts which were not required to be considered by the assessment manager or the referral agencies during the IDAS process. These changes, it is submitted, ought to be considered by the assessment manager and the concurrence agency pursuant to the IDAS process, before the institution of an appeal.
- [12]I accept that real consequences have been identified in terms of transport access, the provision of infrastructure and a necessary bushfire management regime. What is proposed, however, is only a preliminary approval. Many of these consequences fall for consideration as matters of design which will be the subject of subsequent development applications. They do not go to the broad land use proposals which are the subject of the preliminary approval sought by the appellant. As the proposed changes occur in the context of a preliminary approval, assessment of whether or not they result in a substantially different development must be confined to this context. The first co-respondent by election, which is the water and wastewater infrastructure provider for both the respondent and the first co-respondent, also opposed the application. It did so on the basis that the significant reduction in demand as a consequence of the reduced yield of the proposed development would provide significant challenges for the provision of appropriate water and wastewater infrastructure. The Locality Plan only mentions the provision of infrastructure in general terms, however, leaving the details of it to be addressed in subsequent approvals.[20] It is not, in my view, a matter which goes to the question of whether or not the changes result in a substantially different development from the perspective of a preliminary approval.
- [13]The starting point for the assessment of whether the changes result in a substantially different development is the words of the relevant statutory provision and “substantial” is defined in the Macquarie Concise Dictionary[21] as, inter alia, “essential, material or important”. The question for determination is whether the proposed changes fall within this definition in the context of the development application.
- [14]I accept the submissions of the respondent and the first co-respondent that in restricting the jurisdiction of the court to consider a change to an application to “only a minor change”,[22] it is clear that the legislature did not intend the court in the first instance to receive, interrogate and assess development approvals. This is provided for through the IDAS process and is the role of the assessment manager and any referral agencies. This approach is entirely consistent with the observations of Wilson SC DCJ (as he then was) in considering the concept of a minor change in the context of the Integrated Planning Act 1997:
“The Appellant’s proposed changes would, in truth, necessarily require the Respondent Council to reassess all or a large part of the development application against all of the applicable codes. This would necessarily occur in circumstances where that assessment is constrained by, and subject to, the exigencies of litigation; in the possible absence of further information (e.g., a traffic assessment report, and an urban design report) which might well have been sought in an appropriate information request if the matter arose during the IDAS process but which, now, can only be provided by the appellant if the appeal proceeds to trial on the amended or changed plans (or by the Respondents’ own endeavours); and, in the absence of important assessment and decision making tools conferred by IPA, in the IDAS process.”[23]
- [15]The magnitude of the changes proposed to the footprint and density of the development which involve the elimination of two of the four precincts and a substantial reduction in the developable area,[24] with a 75% reduction in proposed dwellings, are both material and important. This is so from both a quantitative and a qualitative perspective as the reductions in the footprint and density of the development occur in the context of material changes to the intended composition of the mixed use community the subject of the development application. Notably there is a 90% reduction in attached dwellings in circumstances where retirement and special needs housing is no longer proposed. In the context of a preliminary approval, these changes result in a substantially different development. Changes to traffic access and connectivity are, at least in part, consequences of these changes but do not, of themselves make for a substantially different development. The same is true of other consequential changes from an environmental and bushfire management perspective. However these consequential changes require assessment through the IDAS process provided for in SPA.
Conclusion
- [16]The proposed changes to the Locality Plan result in a substantially different development. In particular the proposed changes to the footprint of the development and the density of the development result in a substantially different development which requires assessment pursuant to the IDAS process.
- [17]The application is refused.
Footnotes
[1]Affidavit of Mr Reynolds filed 12.03.15, para 2.
[2]Ibid para 3.
[3]Ibid paras 4-5.
[4]Ibid para 6.
[5]Ibid para 10.
[6]Section 495(2)(b).
[7] Section 350(1)(d)(i).
[8]Affidavit of Mr Reynolds filed 12.03.15 Ex SRR-2, p 8.
[9]Ex 2, p 2.
[10]Affidavit of Mr Reynolds filed 12.03.15, para 16.
[11]Affidavit of Mr Venn filed 27.03.15, para 10.
[12]Affidavit of Mr Healy filed 12.03.15, paras 4-5.
[13]Section 350(1)(d)(i).
[14]Section 241(1)(a).
[15]Section 316.
[16](1998) 194 CLR 355 at 381-382 per McHugh, Gummow, Kirby and Hayne JJ.
[17]4th edition, 2006.
[18]Affidavit of Mr Reynolds filed 24.04.15, para 8.
[19]Affidavit of Mr Venn filed 27.03.15, para 13.
[20]Affidavit of My Reynolds filed 12.03.15 Ex SRR-2 p 47, Ex SRR-3 p 160.
[21]4th edition, 2006.
[22]SPA s 495(2)(b).
[23]Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPEC 20 at [32].
[24]Ex 2.