Jimboomba Lakes Pty Ltd v Logan City Council
[2015] QPEC 52
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Jimboomba Lakes Pty Ltd v Logan City Council[2015] QPEC 52
- Add to List
Jimboomba Lakes Pty Ltd v Logan City Council[2015] QPEC 52
Jimboomba Lakes Pty Ltd v Logan City Council[2015] QPEC 52
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Jimboomba Lakes Pty Ltd v Logan City Council & Anor [2015] QPEC 52 |
PARTIES: | JIMBOOMBA LAKES PTY LTD (ACN 108 712 14) (appellant) v LOGAN CITY COUNCIL (respondent) and CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (co-respondent by election) |
FILE NO/S: | 5140/11 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court |
DELIVERED ON: | 23 October 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 October 2015 and 19 October 2015 |
JUDGE: | Everson DCJ |
ORDER: | The application is dismissed. |
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – Whether changes to a development application are a minor change - Whether changes to a development application result in a substantially different development Integrated Planning Act 1997 ss 3.2.10, 3.4.10, 4.1.52 Sustainable Planning Act 2009 ss 350, 802, 819, 821 Macquarie Leisure Operations Ltd v Gold Coast City Councl [2007] QPELR 418, applied Northbrook Corp Pty Ltd v Noosa Shire Council [2015] QPELR 664, applied |
COUNSEL: | M Hinson QC for the appellant B D Job for the respondent |
SOLICITORS: | Milne Legal for the appellant Corrs Chambers Westgarth for the respondent |
Introduction
- [1]This is an application in pending proceeding in which the appellant seeks orders including a declaration that changes it wishes to make to a development application are a minor change as defined in s 350 of the Sustainable Planning Act 2009 (“SPA”).
- [2]The development application was lodged on 26 October 2006. It sought a development permit for a material change of use for accommodation units (relocatable home park) on land at 5376 Mount Lindesay Highway, Jimboomba (“the development application”).
- [3]The respondent opposes the application, arguing that the changes are not a minor change as defined in s 350 of SPA.
The legislative framework
- [4]The development application was not refused by the respondent until 15 November 2011 and therefore it had been made under the repealed Integrated Planning Act 1997 (“IPA”) but not decided until after the commencement of SPA on 22 September 2009. Accordingly, the repealed IPA continues to apply as if SPA had not commenced,[1] and the appeal is to be heard and determined under the repealed IPA as if SPA had not commenced.[2] Pursuant to s 4.1.52 of IPA 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”.[3] However s 821 of SPA states, inter alia:
“(1) This section applies for an appeal to the court under repealed IPA.
- (2)For deciding the appeal, repealed IPA, section 4.1.52(2) applies—
…
- (b)as if the reference in repealed IPA, section 4.1.52(2)(b) to a minor change were a reference to a minor change as defined under this Act.”
- [5]The meaning of a “minor change” is defined in s 350 of SPA as, inter alia, a change that “does not result in a substantially different development”.[4]
The relevant factual matrix
- [6]When the development application was lodged on 26 October 2006 it was accompanied by a plan showing 533 relocatable home sites, 297 parking spaces and a reference to “potential future sites” on the eastern side of the land which is described as Lot 4 on RP178431 (“the land”).[5] The only access to the proposed development was to be from the Mount Lindesay Highway to the west of the land. In response to an information request, amended plans were lodged on 24 October 2010 changing the layout of the development by reducing the number of relocatable home sites to 412 and reducing the number of car parks to 212 but incorporating a separate, discrete enclave of 12 sites and 12 car parks near the eastern boundary of the land.[6] The development application was then publicly notified from 12 January 2011 to 22 February 2011.[7] On 28 January 2011 the Department of Environment and Resource Management, a concurrence agency, wrote to the appellant’s consultant noting that the relocatable home sites near the eastern boundary had not been included in the bushfire management plan.[8] The response on behalf of the appellant was to lodge a further plan on 23 May 2011 which completely deleted this enclave from the proposed development.[9] Deleted were the 12 relocatable home sites and 12 parking spaces indicated in the eastern area of the land on the previous plan together with the internal roadway which connected them. There was now no development indicated in this eastern portion of the land. This is the plan which the respondent considered when making its decision to refuse the development application on 15 November 2011. This is the plan which is relevant to determining whether the proposed changes are only a minor change pursuant to s 4.1.52 of IPA (“the relevant plan”). Accordingly an access to the road network to the east of the land was not considered as part of the IDAS process.
- [7]It appears from the above chronology that the relevant plan was lodged well after the end of the notification stage of IDAS.[10] However, the notification stage does not apply to a changed application if the original application involved impact assessment, the notification stage for the original application had been completed, and the assessment manager “is satisfied the change to the application, if the notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change”.[11] There is no material before me which suggests that the assessment manager considered this requirement, however, s 820 of SPA provides that if the court finds a provision of IPA has not been complied with or has not been fully complied with, “the court may deal with the matter in the way the court considers appropriate”. In my view the changes made to the development application by the relevant plan merely lessened its impact and, as such, would not be likely to attract a submission objecting to them. I am therefore content to proceed as if the respondent assessment manager was appropriately satisfied of this pursuant to s 3.2.10 of IPA.
The changes sought
- [8]In the application the applicant is seeking to further change the development application as follows:-
- to increase the setback along the southern and western boundaries of the development from 7m to 10m;
- to relocate certain car parks in the vicinity of the community building to enable the retention of certain trees;
- to remove certain relocatable home sites from the south western corner of the development to enable stormwater infrastructure to be placed there and make provision for increased boundary setbacks;
- to further reduce the number of relocatable home sites to 390; and
- to make provision for an emergency access to the east of the land over two adjoining parcels of land to a cul-de-sac in Swan Road.[12]
- [9]The appellant also proposes staging the proposed development and this of itself appears uncontentious. However the staging plan contemplates the emergency access referred to above and in these circumstances it is not an entirely discrete issue.[13]
A substantially different development
- [10]The only aspect of the definition of minor change in s 350 of SPA which is relevant to the determination of the application before me is whether any of the changes proposed by the appellant result in a substantially different development. Each of the proposed changes set out above, with the exception of the emergency access, involves a change to the internal design of the proposed development with a view to lessening its impacts. None of the changes listed in Item 1 to Item 4 above result in a substantially different development. The emergency access proposed in Item 5 is in a different category however, and it is this change which was the primary focus of the respondent in opposing the application.
- [11]As stated in paragraph [6], in the relevant plan, the only access to the proposed development is shown as being from the Mount Lindesay Highway to the west. The appellant still proposes that this be the primary access and that the emergency access to the east be limited to use by emergency vehicles when the primary access is inundated by floodwater.[14] Unfortunately for the appellant and prospective residents of the proposed development, the primary access to the land is likely to be cut by floodwater. In the second joint report of the flooding and stormwater quality experts it is agreed:
“Without the alternative site access to the east, there is a 1 in 5 chance the site will be isolated every year. Conversely … the alternative site access will be required, on average, once every 5 years.”[15]
The same experts agree that the primary access will be inundated for up to 65 hours in the defined flood event (the ARI 100 year event).[16] The engineer who gave evidence on behalf of the appellant in this capacity, Mr Henwood, proposed that a gate be used to prevent prospective residents attempting to use the primary access during periods of inundation.[17] He stated that he would not support the development application if it were not for the alternative emergency access proposed by the appellant.[18] The proposed emergency access to the east will require significant infrastructure. Piped culverts approximately 50 metres long and 50 metres wide will need to be constructed and approximately 15,000m3 of fill will need to be deposited in this area requiring approximately 1,000 truck deliveries.[19] It is designed to link into a completely separate road network, remote from the Mount Lindesay Highway.
- [12]The question of whether changes to an application result in a substantially different development was recently considered by this court in Northbrook Corp Pty Ltd v Noosa Shire Council.[20]
Relevantly, I stated:
“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 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.”[21]
- [13]Conversely, pursuant to s 4.1.52(2)(b) of IPA 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. This is because an assessment of proposed changes to a development application ought not be otherwise constrained by and subject to the exigencies of litigation “in the absence of important assessment and decision making tools conferred by IPA, in the IDAS process”.[22]
- [14]On a simplistic view it could be stated that the changes the subject of the application merely seek to lessen impacts of the development and provide an appropriate design solution to the problem of providing a flood free access for prospective residents. The proposed development remains a proposal for a relocatable home park. Such a simplistic approach ignores the limited scope contemplated for a minor change to an application. It is not the role of the court to undertake a comprehensive investigation and analysis of any change sought to be made to a development application. This is expressly provided for in the IDAS process. The limitation in s 350 of SPA that the change not result in a substantially different development means that the proposed change must not be essential, material or important in the context of the development application.
- [15]On the facts before me the proposed emergency access to the east is to be the only terrestrial link for residents of the proposed development to the outside world in flooding events which are forecast to occur on average once every five years. The relevant expert who gave evidence on behalf of the appellant, Mr Henwood, stated he could not support the development application were it not for the proposed access to the east. I am therefore of the view that it is essential to the proposed development. Turning to whether or not the proposed change in this regard is “material,” I note that in the Macquarie Concise Dictionary[23] this term is relevantly defined as “of substantial import or much consequence”. Not only is the proposed emergency access of much consequence in providing for the evacuation of stranded residents in the foreseeable flooding occurrences which are forecast to inundate the primary access to the west, but the construction of it will involve significant engineering works. Consequently I am satisfied that the proposed change is material. For the reasons stated above, the change incorporating the emergency access is also important.
Conclusion
- [16]While each of the proposed changes with the exception of the change incorporating the emergency access to the east does not result in a substantially different development, the proposed emergency access will result in a substantially different development. It therefore has the consequence that the proposed changes are not a minor change as defined in s 350 of SPA.
Orders
- [17]The application is dismissed.
Footnotes
[1]SPA s 802(2).
[2]SPA s 819(5), (6).
[3]IPA s 4.1.52(2)(b).
[4]SPA s 350(1)(d)(i).
[5]Affidavit of Roy Arthur Somerville, filed 19 October 2015, paras 5 and 6 and Exhibit “A-3”.
[6]Ibid, para 13.
[7]Ibid, para 14.
[8]Ibid, para 16, Exhibit “A-9”.
[9]Ibid, para 17, Exhibit “A-10”.
[10]IPA s 3.4.10, although Mr Somerville does not expressly depose to compliance with s 3.4.7.
[11]IPA s 3.2.10.
[12]Affidavit of Robert Milne, Ex “RM1”.
[13]Ibid.
[14]Exhibit 37, para 11.
[15]Exhibit 1, volume 1, tab 2, p 7.
[16]Ibid p 6, para 5.
[17]T2-30, ll 30-35.
[18]T2-37, ll 5-15, T2-42, ll 35-41.
[19]T2-45-46.
[20][2015] QPELR 664.
[21]At 669, para [13].
[22]Macquarie Leisure Operations Ltd v Gold Coast City Council [2007] QPELR 418 at 423, para [32] per Wilson SC DCJ.
[23]4th edition, Macquarie University 2006