Solac No. 14 Pty Ltd v Sunshine Coast Regional Council
[2015] QPEC 44
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- Solac No. 14 Pty Ltd v Sunshine Coast Regional Council[2015] QPEC 44
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Solac No. 14 Pty Ltd v Sunshine Coast Regional Council[2015] QPEC 44
Solac No. 14 Pty Ltd v Sunshine Coast Regional Council[2015] QPEC 44
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 44 |
PARTIES: | SOLAC NO 14 PTY LTD ACN 010 033 217 (applicant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) |
FILE NO/S: | D111/15 |
PROCEEDING: | Application |
DELIVERED ON: | 10 September 2015 |
DELIVERED AT: | Planning and Environment Court at Brisbane |
HEARING DATE: | 4 September 2015 |
JUDGE: | Long SC DCJ |
ORDER: | The order will be in accordance with the initialled draft which has been placed with the papers |
CATCHWORDS: | PLANNING LAW – APPLICATION – application to make changes to previous development approval in relation to the proposed construction of self-storage facilities – where the proposed changes are to allow the height of one part of one of the proposed buildings to exceed 8.5m above natural ground level and to delay the dedication of land as a reserve for park and to vary the stormwater management methods – whether proposed changes are permissible changes in accordance with s 367 of the Sustainable Planning Act 2009 – whether because of the proposed changes the result is not a substantially different development – whether it is established that no proposed change would be likely to cause a person to make a properly made submission objecting to the change, if the circumstances permitted that Sustainable Planning Act 2009 s 367(1)(a) and s 367(1)(c), s 369(1)(d), s 372(1)(b), s 374(1)(c) and s 759(1)(c) Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32 Collard v BCC [2010] QPEC 39 Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council [2010] QPELR 510 Orchard (Oxenford) Developments Pty Ltd (ACN 167 310 509) v Gold Coast City Council [2015] QPEC 11 Scanlon Group Pty Ltd v SCRC [2012] QPELR 394 |
COUNSEL: | AK Williams (sol) for the applicant GN Phillips (sol) for the respondent |
SOLICITORS: | P & E Law for the applicant Sunshine Coast Regional Council for the respondent |
Introduction
- [1]This application involves a request to make changes to the development approval, granted by this Court on 20 May 2011, in appeal 244/09 (Maroochydore). That order was made in respect of lots 1 and 3 on RP233903, situated at Coral Street, Maleny and relates to the proposed construction of self-storage facilities on that land.
- [2]This application is necessary because of s 369(1)(d) of the Sustainable Planning Act 2009 (“SPA”) and requires a determination by this Court, as the relevant responsible entity, that the changes which are sought to the development approval are permissible changes, in accordance with the definition of that term, as provided in s 367 of SPA:
“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—
- (a)result in a substantially different development; or
- (b)if the application for the approval were remade including the change—
- (i)require referral to additional concurrence agencies; or
- (ii)for an approval for assessable development that previously did not require impact assessment—require impact assessment; or
- (c)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
- (d)cause development to which the approval relates to include any prohibited development.
- (2)For deciding whether a change is a permissible change under subsection (1)(b) or (d), the planning instruments or law in force at the time the request for the change was made apply.”
- [3]In broad summary the proposed changes are:
- (a)to allow the height of part of one of the proposed buildings to exceed 8.5m above natural ground level;
- (b)to delay the dedication of land as a reserve for park; and
- (c)to vary the stormwater management methods.
The Issues
- [4]In this instance, s 367(2) is not relevantly triggered, as subparagraphs (b) and (d) of s 367(1) are not engaged. However and as the existing approval relates to assessable development that previously required impact assessment, subparagraph (c) is engaged, as well as subparagraph (a).
- [5]As the responsible entity in this instance, the Court is required to apply s 374 of SPA:
- “(1)To the extent relevant, the responsible entity must assess the request having regard to—
- (a)the information the person making the request included with the request; and
- (b)the matters the responsible entity would have regard to if the request were a development application; and
- (c)if submissions were made about the original application—the submissions; and
- (d)any notice about the request given under section 373 to the entity; and
- (e)any pre-request response notice about the request given to the entity.
- (2)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.”
- [6]As the original assessment manager for the application to which the existing development approval applies and consistently with its pre-request response notice,[1] the respondent to this application consents to the order proposed to allow the proposed changes. Otherwise, the only concurrence agency required to be notified under s 372(1)(b), the Chief Executive State Development Infrastructure and Planning, has not entered an appearance in the proceedings but did provide a pre-request response notice stating that there was no objection to the proposed changes.[2]
- [7]However it remains a matter for the satisfaction of the Court as to whether, because of the changes, the result is not a substantially different development and nor would any proposed change be likely to cause a person to make a properly made submission objecting to the change, if the circumstances allowed.[3]
- [8]As set out in the application filed on 11 August 2015 and explained in the affidavit of K E Covey filed on 19 August 2015, the first proposed change is to Condition 3 of the approval, to add the words “except as shown on the approved plans” and so that the condition will read as follows:
“The maximum height of the development must not exceed 8.5m above natural ground level, except as shown on the approved plans. A verification survey of the building is to be carried out by a licensed Surveyor and a certificate lodged with Council at completion of the building work confirming compliance with the maximum allowable building height.”
It is further noted that this change is sought notwithstanding the indication that the finished floor height of the building in question and which will be at the lower level of the two buildings proposed for the sloped site, will be reduced by 1m to the lowest permissible level for flooding purposes, at RL411. As it was further clarified, this change is in respect of a matter that was overlooked in the existing approval and remains necessary despite the lowering of the floor level by 1m, because a part of the lower proposed building will, when finished, partially exceed the limit of 8.5m above natural ground level. Because of the sloping nature of the site, it can be noted that it is the eastern most point of the building that will exceed the 8.5m restriction, by 0.973m and that moving in a westerly direction, that excess tapers to zero at approximately a third of the length of the building (27.350m) and then will progressively be measured across the balance of the length of the building, below that limit, to be, at the westernmost point, at a height of 7.165m above natural ground height. In the northerly to southerly aspect and at the easterly end of the building, there is also a section of approximately half of the structure (7.5m) that will exceed the restriction by 0.55m.[4]
- [9]The second proposed change is in order to delay the dedication of a 10m waterway corridor buffer. That is proposed in respect of an amendment to Condition 58, as follows:
“Prior to the commencement of building works for use of Stage 1 of the development; the applicant must transfer and surrender to the Crown as Reserve for Park, the area defined within the ‘Approximate Line of Open Space Conservation and Waterways Precinct’, which is to be no less than 10 metres wide, as identified on the Proposed Site Plan, Project 06681, Sheet pl.01 Issue G, Dated 11/3/11, prepared by Covey & Associates Pty Ltd (as amended).”
- [10]This is simply an issue of timing and facilitation of the construction of Stage 1 of the development, before the necessity to surrender and transfer the waterway corridor buffer. It is explained that prior to the dedication of the land it must be rehabilitated and there is impracticability in doing that before the completion of the adjacent building works.[5]
- [11]The third proposed change is described as being in order to provide for “contemporary methods of stormwater management treatment which dispenses with the need for rainwater tanks, bio-retention basins and gross pollutant traps in favour of a swale and ‘level spreader’ system” and which is now approved in an operational works permit, issued by the respondent on 19 May 2015. This is further described as a system which “is more efficient in that it requires less work and materials to install and less maintenance”, whilst “still achieving the required water management objectives”.[6]
- [12]Without descending to the detail, the proposal involves the deletion of Conditions 38, 40, 41 and 43 to 45 and amendments to Conditions 36, 37 and 42.
Consideration of the issues
- [13]In the consideration of the question as to whether, because of the proposed changes, the result is not a substantially different development, it has been noted that it is permissible to have regard to the ministerial guideline No. 06/09, issued pursuant to s 759(1)(c) of SPA to provide guidance for applicants and assessment managers. But that guideline is neither exhaustive in terms, nor prescriptive of what will be a substantially different development.[7] What is ultimately required is the application of the statutory language, to matters of fact and degree, to the combined as well as individual effect of the proposed changes.
- [14]In the present instance, it may be concluded that no change is proposed to the essence or substance of the development. Rather, the changes may be viewed, as contended by the applicant, as being in the nature of refinements to the implementation of the development, including the inclusion of the necessary exemption from the height restriction and which was previously overlooked and which has been reduced as far as is possible having regard to the requirements in respect of potential flooding.
- [15]It should be concluded that the changes, individually and collectively, will not result in a substantially different development.
- [16]In consideration of the issues as to likelihood of the changes causing a properly made submission, if circumstances allowed, as pointed out by Robin QC DCJ, in Collard v BCC,[8] the contemplation of the Court must necessarily be with putative submitters who may act reasonably in that regard.
- [17]On this application, specific reference has been made to other decisions of this Court, which have recognised that the word “likely” may take on varied meaning, depending on the context of use.[9] It may be noted that the preponderant, but not necessarily settled, view is that it is the meaning in the sense of “a substantial chance, a real, not remote chance, regardless of whether it is more or less than 50 percent”, rather than “probably” in the sense of “more likely than not”, that is intended. In the present case, the applicant was content to proceed upon the basis that this was the meaning to be applied and as the matter was not otherwise argued, that is the course that will be adopted.
- [18]However, some particular considerations should be observed. It is important to understand that the formulation in s 367(1)(c) is in respect of a test that is required to be negatived, on the balance of probabilities. Also, and whilst I would tend to share the view expressed in Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council[10] that the following extract from Scanlon Group Pty Ltd v SCRC[11] does not necessarily express a different view as to the meaning to be given to “likely” in s 367(1)(c), there are otherwise important considerations that are noted by Rackemann DCJ:
“It is not always easy to rule out the possibility that any change might provoke an objection. That is particularly so because it is rare for the court to have material from particular prospective submitters. In those circumstances, the court is called upon to assess the relevant likelihood on the balance of probabilities and on the assumption that those who might otherwise have had the opportunity of making a submission objecting to the change would make their decision as to whether or not on a reasonable basis.”
That is, that the Court must necessarily consider the prospect on a hypothetical premise and having regard to the prospect of a reasonable decision to make a submission, rather than the mere prospect of that occurring.
- [19]Another important consideration is noted in the reasoning applied in Orchard (Oxenford) Developments Pty Ltd (ACN 167 310 509) v Gold Coast City Council.[12] That is, in respect of the necessity to consider a prospective causal connection between the changes and any likelihood of a properly made submission being made, if the circumstances allowed. The concern is related to previously impact assessable development and with the effect of the proposed changes and not, therefore, with the prospect of opportunity being taken to simply remake submissions that have already been considered in respect of the development.
- [20]Accordingly and adopting the meaning of “likely” which is less favourable to the applicant, the question is whether the Court is satisfied, on the balance of probabilities, that none of the proposed changes would, because of the change, give rise to a real, or not remote, chance or possibility, of causing a properly made submission to be made objecting to any change, if the circumstances allowed.[13]
- [21]In this case and although the hypothetical question is not so limited, the evidence is that there were four submissions accepted in respect of the original development application[14] and I was informed that on the proceedings which earlier came before this Court, one submitter originally became a party but subsequently withdrew from the proceedings before the matter was resolved on the consent of the same parties who are now before the Court. As has been noted, pursuant to s 374(1)(c) of SPA, the Court is required to have regard to the submissions that were made on the original application. Perusal of those submissions indicates that concerns were raised in respect of impact on the water quality and flow of water in Obi Obi Creek, particularly when in flood (as it bends around the site in a “V” shape, at the lowest level of the property) and also in respect of the visual amenity of the proposed development.
- [22]As far as the changes to the proposed storm water management system are concerned, the only evidence before the Court is that the changes are to implement a more contemporary and efficient system and that they do not create “any lesser storm water management outcome”.[15]
- [23]In relation to the changes in respect of the dedicated park bordering Obi Obi Creek; that change is only as to timing and as a matter of practicality and in facilitation of the otherwise approved development.
- [24]The other change in respect of an exemption from a height restriction, is potentially more problematic. However, there is evidence that a visual amenity assessment was conducted in the course of the earlier proceeding in this Court, with a conclusion that the proposed development would have a negligible impact on visual amenity.[16] That situation is effectively not changed, except that the floor level of the building in question, is now 1m lower than previously proposed. Further, the extent to which the height restriction is exceeded is, in all the circumstances, relatively minor and it may be accepted that, as observed in the evidence before the Court:
“26. The development consists of two buildings on a steeply sloping site. The subject building is the lower of the two buildings with a roof level of about RL417. The floor level of the other building is RL417 with its roof level at about RL422. Therefore even though the subject building will exceed 8.5m above natural ground level, it is by no means the highest point of the development.
- When viewed in its context, particularly the balance of the development and the development in the surrounding area, the building will not cause any adverse visual impact.”[17]
- [25]Accordingly, it is appropriate to conclude, in these circumstances, that it is more likely than not that the proposed changes do not give rise to any real or substantial chance or possibility of causing any reasonable decision to make a submission objecting to any proposed change, if the circumstances allowed.
- [26]In these circumstances, it should be concluded that the proposed changes are permissible changes, within the meaning of s 367(1) of SPA and there will be an order to allow these changes, in accordance with the draft which has been initialled and placed with the papers.
Footnotes
[1] See Ex KEC 2, to the Affidavit of K E Covey, filed 19/8/15, at pp 14-22.
[2] Ibid at pp 12-13.
[3] The concept of a “properly made submission” is defined in Schedule 3 to SPA, in a way that is concerned with formality rather than substance, although as may be noted, there is a requirement that “the grounds of the submission and the facts and circumstances relied upon in support of the grounds”, be stated.
[4] Affidavit of K E Covey, filed 19/8/15, at [5]-[11].
[5] As above n 4 at [12]-[13].
[6] Ibid at [15]-[19].
[7] Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council [2010] QPELR 510 at 512.
[8] [2010] QPEC 39.
[9] Christian Outreach Centre v Toowoomba Regional Council & HSBG Pty Ltd [2012] QPEC 29 at [29]-[30], Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32 at [15]-[24], Orchard (Oxenford) Developments Pty Ltd (ACN 167 310 509) v Gold Coast City Council [2015] QPEC 11 at [73]-[75] and CF Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 394 at 395.
[10] [2014] QPEC 32, at 22.
[11] [2012] QPELR 394 at 395.
[12] [2015] QPEC 11 at [73]-[75].
[13] It can be observed that if the more favourable meaning of “likely” is the statutory meaning, the question would resolve to a more conceptually simpler test: whether the Court is satisfied, on the balance of probabilities, that none of the proposed changes would, because of the change, cause a properly made submission to be made objecting to any change, if the circumstances allowed. However, that may not, by itself, be a permissible approach as a matter of statutory interpretation and if it were necessary to do so, the statutory meaning would be found in considering the context and purpose of the provision: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69].
[14] See affidavit of AK Williams, filed 4/9/15, at AKW2.
[15] See affidavit of KE Covey, filed 19/8/15, at [15]-[19] and [23].
[16] Ibid at [24]
[17] As above n 15, at [26]-[27] and see KEC1 and in particular the proposed elevation of the buildings.