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Novadeck Pty Ltd v Brisbane City Council[2016] QPEC 68

Novadeck Pty Ltd v Brisbane City Council[2016] QPEC 68

 

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

 

CITATION:

Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 68

PARTIES:

NOVADECK PTY LTD (ACN 602 273 932)

Applicant

v

BRISBANE CITY COUNCIL

Respondent

FILE NO/S:

3529/16

DIVISION:

Planning and Environment

PROCEEDING:

Application

DELIVERED ON:

22 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2016

JUDGE:

Bowskill QC DCJ

ORDER:

The application will be allowed.  I will adjourn the proceeding, to enable the parties to prepare an appropriate form of order, and the requisite notices under s 376 of the Sustainable Planning Act 2009.

CATCHWORDS:

PLANNING AND ENVIRONMENT – substantially completed development for a 49 multi-unit dwelling in Calamvale – where the applicant requested changes to the approval to reflect adjustments which occurred in the course of construction – where a commercial competitor, constructing a similar development on the adjoining land, wishes to object to the changes – whether the proposed changes constitute permissible changes

Sustainable Planning Act 2009, ss 367, 369, 374 and 375

Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409

Forde v Toowoomba Regional Council [2016] QPELR 259

Heilbronn & Partners Pty Ltd v Gold Coast City Council [2005] QPELR 386

Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561

Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53

Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462

Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405

Steendyk v Brisbane City Council & Ors [2016] QPEC 47

COUNSEL:

M Batty for the Applicant

M Osborne, solicitor, for the Respondent

SOLICITORS:

Thomson Geer Lawyers for the Applicant

Brisbane City Legal Practice for the Respondent

Introduction

  1. [1]
    Novadeck Pty Ltd is the owner and developer of land located at the corner of Beaudesert Road, Benhiam Street and Riley Street in Calamvale (Lot 6 on RP 72330). 
  2. [2]
    In October 2008 this Court approved a development application over the land for a material change of use and a preliminary approval for building work for 49 multi-unit dwellings on the land.  On 7 December 2015, the Court allowed a permissible change to that approval.[1]   I was informed by counsel for the applicant that development of the land for the purposes of the units is substantially completed.
  3. [3]
    Novadeck seeks to make further changes to the development approval, on the basis that they are permissible changes, within the meaning of s 367 of the Sustainable Planning Act 2009.  The changes are outlined below, but as explained by Ms Rayment, the town planning consultant engaged by the applicant, the changes arise from the detailed design of the proposal during the operational works and construction phase of the project, which has resulted in minor variations being required to the approved drawings.[2]
  4. [4]
    The Council does not oppose the application.
  5. [5]
    Beriley Pty Ltd is the owner of the only adjoining land to the proposed development, and is also developing its land for townhouses/multi-unit dwellings.  It is in that sense a commercial competitor of the applicant.  Beriley sought to be joined as a party to this proceeding, in order to oppose the application.  That joinder was refused.[3]  But the Council has put in evidence material from Beriley (annexed to affidavits of Mr Osborne, filed on 24 and 30 November 2016; and tendered as exhibit 4); and the parties have also read affidavits from the file (in relation to the joinder application) from Mr O'Brien, the solicitor for Beriley (filed on 22 September and 17 October 2016) and Mr Chan, a director of Beriley (filed 21 October 2016).  Included amongst this material is a report from Ms Morrissy, a town planning consultant engaged by Beriley.[4]

Permissible change – relevant principles

  1. [6]
    Under s 367(1) a “permissible change” for a development approval is, relevantly,[5] a change to the approval that would not, because of the change:
  1. (a)
    result in a substantially different development; or
  1. (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.
  1. [7]
    If satisfied the change is a permissible change,[6] under s 374 the Court as the responsible entity must assess the request having regard, to the extent relevant, to the matters set out in s 374(1).  Having assessed the request under s 374, the Court must decide to approve the request, with or without conditions; or refuse the request (s 375(1)).

Substantially different development

  1. [8]
    There is no definition of “substantially different development” in the Planning Act.  It is to be given its ordinary common sense meaning,[7] although there is assistance to be gained from statutory guideline 06/09, made under s 759(1) of the Planning Act.  Changes that are identified in the guideline as some that may result in a substantially different development include changes that:
    1. (a)
      involve a new use with different or additional impacts;
    2. (b)
      result in the application applying to a new parcel of land;
    3. (c)
      dramatically change the built form in terms of scale, bulk and appearance;
    4. (d)
      change the ability of the proposal to operate as intended;
    5. (e)
      remove a component that is integral to the operation of the development;
    6. (f)
      significantly impact on traffic flow and the transport network, such as increasing traffic to the site; or
    7. (g)
      introduce new impacts or increase the severity of known impacts.
  2. [9]
    The guideline is no more than that.  The examples given are not exhaustive, nor are they determinative – they are simply some examples of changes that may result in substantially different development, depending on the individual circumstances of the case.[8]  The assessment of whether a proposed change would, or would not, result in a substantially different development involves matters of fact and degree, to be considered broadly and fairly, having regard to the overall development application.[9]  It is relevant to consider the changes from a qualitative as well as a quantitative perspective, consistently with the guideline which refers not only to the physical degree of change, but also to its impacts.[10] 
  3. [10]
    It was drawn to my attention that there have been divergent views expressed by members of this Court, as to the approach to be adopted when considering a request to make further changes to a development approval which has already been permissibly changed.   This was given detailed consideration by Judge Morzone QC in Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462, with his Honour concluding that the reference in s 367(1) to “development approval” and “approval” should be read as a reference to the development approval as made, and as amended from time to time since originally made (at [48][11]), so that the approach to be taken is as follows (at [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)[12] would provide the comparative benchmark. This would properly identify the contemporary development rights that attached to the land immediately before the proposed change.[13]  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.[14]”

  1. [11]
    As further explained in Orchard at [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.  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. [12]
    This aspect of Orchard was referred to with apparent approval by Searles DCJ in Forde v Toowoomba Regional Council [2016] QPELR 259 at [16] and [21] (although in a different context, where his Honour was considering preliminary matters concerning a permissible change application; not determining the application itself).
  2. [13]
    A different view was recently expressed by Everson DCJ, in the decision on Beriley’s joinder application, Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53.   Judge Everson records his disagreement with the analysis in Orchard (in particular, the last sentence in [44], quoted above) and expresses the view that the development approval against which the change is measured in all cases is the development approval in place at the time the request to change it is made; and the proposed changes are to be assessed solely by comparing those further changes with the approval in its most recently modified form (at [16]-[17]).  
  3. [14]
    In this proceeding, the applicant submitted that this is not a legal issue that I have to confront in this proceeding, because, on the applicant’s case, the permissible change test is met on either approach.
  4. [15]
    For the reasons explained below, I accept that submission.  So in the interests of efficiency, and delivering a timely decision, I do not propose to enter into a detailed analysis of this issue.  I will, however, briefly comment that it seems to me the approach outlined by Morzone QC DCJ in [44] of Orchard is the correct one.   It is consistent with the view expressed by Everson DCJ in Novadeck, in so far as both make the point that the appropriate “benchmark” for considering the causal effect of the change(s) is the most recent manifestation of a development approval.   What Everson DCJ disagrees with is the need to be alert to the permissible change process being used to incrementally change an approval, with the end result being a substantially different development from that which was originally proposed.  However, I would regard that, not as the second part of a “double-barrelled” test,[15] which is not what I understand Morzone QC DCJ to be propounding; but rather as a kind of check and balance, in the exercise of the responsible entity’s discretionary power to approve a request for a change.
  5. [16]
    In that regard, I note the following observations made by Rackemann DCJ in Heilbronn & Partners Pty Ltd v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386 at [21] and [22]:

“The power to modify is beneficial. The nature of town planning and, more specifically, the application assessment process (including the appellate process) requires flexibility to respond to facts, circumstances and issues as they emerge and the discovery of new or better ways to implement a proposal.  It is through the flexibility to modify proposals that a great many planning disputes are resolved in ways which are not only satisfactory to the parties but result in better development for the benefit of the wider community. While the power to modify has been criticised, by some, as an incentive to applicants to hold back information or to make ambit claims, it affords flexibility which, within limits, is desirable.

It is attractive to adopt a generous interpretation of the limits within which an application may be changed. Courts charged with responsibility for determining planning matters have long recognised the need for flexibility and the desirability of making every endeavour to deal with the substance of the matter with the maximum of expedition and fairness.”[16]

  1. [17]
    In my view, the last sentence in [44] of Orchard is simply a recognition that there are limits to the changes that may appropriately be approved to a development approval and that, in some cases, notwithstanding that the benchmark for the purposes of s 367(1) is the most recent manifestation of the approval, it will be appropriate to consider the original approval, in determining whether what is now proposed would, or would not, because of the change, result in a substantially different development.

Likelihood of submission

  1. [18]
    In relation to the relevant principles, I adopt the following summary from Orchard at [75]:

“(1) The words ‘because of the change’ … 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.

  1. (2)
    ‘Likely’ in this context conveys a notion of something substantial, and ought to be construed as a ‘real’ or ‘not remote’ chance or possibility regardless of whether it is less or more than 50 per cent.[17]  In relation to causing a person to make a submission, the word is synonymous with ‘prone’, ‘with a propensity’ or ‘liable’.
  1. (3)
    Consideration must be given to the likelihood of submissions ‘objecting to the proposed change’ being made ‘on a relevant basis at least’.  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.
  1. (4)
    The potential submitter must be assumed to be objective and rational, and to be acting reasonably. …”[18]
  1. [19]
    It is for the applicant to show, on the balance of probabilities, that the proposed changes would not, because of the change, be likely to cause a person to make a properly made, relevant[19] submission objecting to the change.[20] 
  2. [20]
    The question is to be answered from the perspective of a “hypothetical potential objector who must be taken to be an average representative of the community… taking a rational view of the matter”,[21] and who is properly informed.[22]
  3. [21]
    It is appropriate to have regard to evidence before the Court which indicates that there is someone who would wish to object.[23]  However, the mere fact that a prospective submitter has communicated with the Council, and asserted a desire to make a submission objecting to the proposed change, does not affect the operation of the statutory provision.[24]
  4. [22]
    If the Court is satisfied the change proposed does not result in a substantially different development, that finding is relevant to the consideration of whether a person, acting reasonably, would make a submission that was relevant, rational and objectively based.[25]

The proposed changes

  1. [23]
    The proposed changes are described by Ms Rayment, in her report dated September 2016.[26] In summary, the changes are concerned with:
    1. (a)
      altering the private courtyards of some of the units;
    2. (b)
      changing the vegetation retention arrangements;
    3. (c)
      altering the height of the acoustic fence along the southern boundary of the land;
    4. (d)
      including an additional step in the profile of the acoustic fence;
    5. (e)
      correcting a discrepancy as to the number of visitor car park spaces;
    6. (f)
      changing the overall height of some units; and
    7. (g)
      altering the design of the Benhiam Street verge.  
  2. [24]
    In relation to altering the private courtyards of some of the units, the changes proposed may be summarised as follows:[27]
    1. (a)
      For units 19 and 32, aligning the retaining walls to be consistent with the internal design of courtyards for adjacent units, and relocating the stairs that provide access to the courtyards.
    2. (b)
      For units 9 to 12, removing the need to step the retaining wall around the tree protection zone (as that vegetation no longer exists), and adding rear decks, about 1.4 m high.  The decks will remain approximately 3.185 m below the height of the acoustic fence along the boundary.  They will not be attached structurally to either the retaining walls along the rear of units 9 to 12, or to the acoustic fence (and so will place no additional structural load on the adjoining Beriley land, or on the retaining walls immediately inside the boundary).[28]
    3. (c)
      For units 17, 18, 20, 31, 33 to 36, and 21 to 30, 37 and 38 (located either side of the internal retaining wall), changing the design of the internal retaining wall from a tiered concrete sleeper wall to a boulder retaining wall. For units 17, 18, 20, 31, 33 to 36, this improves functionality as the courtyards no longer step down from the unit patios.  For units 21 to 20, 37 and 38, this decreases the internal space in the courtyards.
    4. (d)
      For units 15 and 16, removing the step down from the patio to the courtyard in order to improve functionality. 
  3. [25]
    In relation to changing the vegetation retention arrangements, the applicant seeks to offset the loss of five trees which occurred during the course of construction, including three which were originally identified for retention on the approved drawings, by retaining an additional nine trees previously marked for removal.[29]  According to Ms Rayment, the trees that can no longer be retained “held no unique ecological value” compared to the nine trees now to be retained, which “provide a more comprehensive ecological connectivity corridor for urban fauna”.[30]
  4. [26]
    The applicant also seeks to alter the height of the acoustic fence in the proposed amended plans, in order to authorise the way the fence has been constructed.  Due to variation in topography, the constructed fence does not strictly comply with the 2015 permissible change court approval, which imposed a maximum of 4.6 m, stepping gradually down to a minimum of 2.4 m above finished ground level.[31]  This occurs in a small section along the Beaudesert frontage, and the southern boundary[32] (which is the boundary with Beriley’s property).  In so far as the southern boundary is concerned, Ms Rayment explains that while there is an overall decrease in height across the length of the fence, there are two areas of increase, by 82 mm and 152 mm respectively.[33] There are also several areas where the constructed fence is less than the approved height, by a variance of 80 mm to 930 mm.[34] According to Ms Rayment, a maximum increase in the total fence height in two isolated parts would not have “any appreciable impact on the Beriley land, or even be perceptible at all”.[35]
  5. [27]
    A revised acoustic report, based on updated noise measurements having regard to the acoustic fence as-constructed, concluded that the noise levels measured post-completion of the acoustic fence were consistent with the design goals and the noise criteria contained in the original acoustic design report; that no further modifications to the existing acoustic fence would be required; and the as-constructed fence heights allow traffic noise levels to achieve the required acoustic criteria.[36] 
  6. [28]
    Mr Enerson, an acoustic engineer, has prepared an analysis of the acoustic fence heights, on the basis of the 2008 development approval, the 2015 amended approval, and the as-constructed heights.[37]  It is apparent from that analysis (in particular, the plan at p 16 of the exhibits to Mr Enerson’s affidavit) that there has really not been any significant change in the height.
  7. [29]
    There is also evidence from Mr Kelvin Lanning, a structural engineer, who says, in relation to the acoustic fence:

“There is a small amount of additional structural load placed on the footings of the acoustic fence due to the minor height increase.   The drawings prepared by the project architect for the Applicant demonstrate only very minor height deviations from that provided for under the existing development approval.  Overall the height of the acoustic fence has been reduced.  These minor deviations from the height of the fence previously approved and now proposed, have no impact on the structural integrity of the footings of the fence, in that the footings do not need to be supplemented.”[38]

  1. [30]
    Mr Lanning exhibits the structural engineering drawings for the acoustic fence.  He says that the fence has been designed and constructed in accordance with these drawings, and there are no structural issue with either the design of the fence or its footings.[39]
  2. [31]
    The applicant also seeks to include an additional step in the profile of the acoustic fence.  Although the original Site Plan included only one step, the applicant has provided an additional step in the profile of the acoustic fence near the corner of Beaudesert Road and Benhiam Street, in order to avoid existing services.[40] 
  3. [32]
    The applicant further seeks to change the approved plan by including one additional car parking space for visitors, bringing the total number of parks to 12.  The additional car park is on the internal access road within the development, at the front of the communal open space area between unit 47 and 48.[41] Due to an apparent error, the legend to the approved plan specified 12 visitor parks, whereas the approved plan itself only depicted 11 visitor parks.  The change is therefore sought in order to achieve the number of car parking spaces noted in the legend, and to achieve compliance with the 2015 approval.[42]
  4. [33]
    In relation to changing the overall height of some units, the proposed changes arise from issues faced during design and construction relating to building pads levels.[43]  Ms Rayment compares the building pad levels of the 2015 approval with the pad levels now proposed, and notes that the greatest height differential is 835 mm.[44]  Eight pad levels are actually lower than in the 2015 approval; 23 vary by less than 100 mm; 6 vary by less than 300 mm; and 12 are between 300 and 835 mm.  Due to these varying pad levels, the overall building height of some units has increased.  The maximum increase is in relation to units 9 to 11, which have increased in height by 56 cm.  Unit 12 has increased by 38 cm; units 7 and 8 by 28 cm; and units 43, 44, 48 and 49 by 6 to 8 cm.[45]  Units 45 to 47 have reduced in height.  All units, however, remain under the height limit of 9.5 m imposed by condition 5 of the 2015 approval.[46]  Ms Rayment explains that where the building pad has increased by over 30 cm, the roof height has been reduced to ensure the overall building height does not substantially change.  So in terms of bulk and scale, the building pad increase is offset by a reduction in the roof height so that overall the buildings are not substantially higher.[47]   In relation to privacy and overlooking, Ms Rayment explains that the upper level windows of these dwellings were always higher than the fence line, and the lower level windows remain predominantly below the fence height such that there is no increase in potential overlooking.[48]
  5. [34]
    Mr Lanning, a structural engineer, has provided an analysis of the finished floor levels, as now constructed (and subject of the proposed changes), with each of the finished floor levels provided for in the original 2008 development approval, and the development approval as amended in 2015.   Mr Lanning describes the changes, in comparison to the 2015 amended approval, as “marginal”, with a maximum increase of 56 cm in relation to 3 units, but far smaller increases in relation to others.  He also says this will not have any impact on the Beriley land, from a civil or structural engineering perspective.[49]   When compared with the 2008 approval, the increases are generally of the same magnitude, the greatest being 79.5 cm; which he says he cannot see having any more than negligible impact from a civil or structural engineering perspective on the Beriley land.[50]
  6. [35]
    Finally, the applicant also seeks to change the Revised Civil Siteworks Concept Plans to show that the verge in Benhiam Street, between units 31 and 36, is now designed to Brisbane City Council standard grade.[51]

Are the proposed changes such that they would not, because of the changes, result in a substantially different development? – s 367(1)(a)

  1. [36]
    Having regard to the principles set out above, and the changes as they have been described in the evidence, I am satisfied the proposed changes would not, because of the changes, result in a substantially different development.
  2. [37]
    In relation to the changes to the private courtyards, I accept the evidence of Ms Rayment that the proposal remains generally in accordance with the approved drawings, under the current (2015) development approval; as well as the original (2008) approval.[52]   I also accept her opinion that the proposed changes are minor and inconsequential, have no bearing on the adjoining owner, remain in compliance with the relevant planning provisions and generally in accordance with the approved drawings.[53]
  3. [38]
    In relation to the changes to the vegetation retention arrangements, step in the profile of the acoustic fence, car parking space for visitors, and verge in Benhiam street, without dealing with each in any detail, I also accept Ms Rayment’s evidence, and opinions, leading to the conclusion that these too are minor changes, having no impact on the adjoining owner, and remaining in compliance with the planning provisions and generally in accordance with the approved drawings.[54]
  4. [39]
    The changes referred to in the two preceding paragraphs are discrete to this application.  The changes next referred to are in relation to parts of the development that were affected, to some extent, by the 2015 permissible changes.
  5. [40]
    In relation to the acoustic fence, it is apparent, from the evidence of Ms Rayment,[55] Mr Enerson and Mr Lanning (referred to above) that the changes to the as-constructed height of the acoustic fence, at various points, are minor, both in comparison to the most recent manifestation of the approval and the original approval.
  6. [41]
    In relation to the changes of overall height of some units, I am also of the view that the changes proposed are, looked at broadly and fairly, minor.   Consistently with both the most recent manifestation of the development approval, and the original approval, the overall building height remains under 9.5 m;[56] and the greatest increase, in respect of one unit, is 56 cm.
  7. [42]
    Having regard to the scale of the development, the explanation, that the proposed changes involve adjustments to reflect changes which occurred due to refinements in the detailed design and construction stages of the approved development, is understandable and reasonable.     Having considered the evidence, I can see no basis to conclude that the effect of the proposed changes would be to result in substantially different development.  
  8. [43]
    When compared with the most recent manifestation of the development approval, that is a conclusion also reached by Ms Morrissy, the town planning consultant engaged by Beriley.    Having reviewed the proposed plans of development for this permissible change application against the 2015 approval, Ms Morrissy considers that the changes “do not result in dramatically different development to the 2015 permissible change approval” and that this application would qualify as a permissible change under s 367.  In particular, Ms Morrissy says that:

“Of the changes proposed by the second permissible change application, I note that any changes along the southern boundary of the development are generally minor (notwithstanding the pad height of approximately five units are proposed to be raised by over half a metre).”[57]

  1. [44]
    That is the view I have reached also – that the changes proposed are “generally minor”.
  2. [45]
    Ms Morrissy goes on, however, to express a view about whether the test, for a permissible change, would be met if it involved comparison against the original 2008 approval.  If that is the test, Ms Morrissy says she considers the present change application would not qualify as a permissible change, for the reasons given earlier in her report.  Ms Morrissy points to the following differences, between the original approval, and the current change application:
    1. (a)
      the reduced size in area and volume of the retention basin (this being a matter not addressed at all by the currently proposed changes);
    2. (b)
      the design and scale of the acoustic fence on the southern boundary; and
    3. (c)
      further changes to pad levels (thereby affecting the heights of buildings and ultimately amenity outcomes),

and says she maintains her opinion, in light of previous submissions and communications made by Beriley, that Beriley would be likely to make a properly made submission objecting to the changes, if the circumstances allowed.[58]

  1. [46]
    That conclusion needs to be read with Ms Morrissy’s earlier opinion, at [9] of her report, that the 2015 permissible changes did not qualify as permissible changes because, given Beriley’s previous conduct in relation to the applicant’s development – in which it had shown a “strong level of interest in the development of the adjoining land”; “even subtle changes to the development of the subject land would draw attention and interest from Beriley”; and Beriley “is particularly sensitive to the treatment of the southern boundary” – it is likely that Beriley would have made submissions objecting to the changes.
  2. [47]
    That of course is not a live issue before me.  The 2015 permissible change request was granted, and orders made, which have taken effect.[59]  There was no challenge to the validity of the 2015 approval.  The approval, as changed in 2015, must therefore be taken to be valid and effective, for the purposes of any further request to make a permissible change.[60]
  3. [48]
    As I read Ms Morrissy’s report, she is not expressing a view that, when compared with the 2008 original approval, the currently proposed changes can be said to result in “substantially different development”, for the purposes of s 367(1)(a).  Rather, she is saying that s 367(1)(c) is not met, because Beriley would be likely to make a submission objecting to the currently proposed changes, seemingly because Beriley had previously made submissions about the original development; objected to the 2015 changes; and remains opposed to the development. 
  4. [49]
    Ms Morrissy’s analysis is, with respect, misdirected and does not reflect the correct approach to be taken to an application such as this.  In terms of the authorities discussed above, about the approach to be taken on a permissible change application, the need, in some cases, to consider the original approval, is only by way of a secondary check, to guard against incremental changes, the effect of which may be to result in a substantially different development.  That check or balance on the discretionary power to permit what otherwise appear to be permissible changes does not, however, permit a person or entity (such as Beriley) to re-open a previous application for a permissible change, or involve the responsible entity reviewing and re-assessing previous changes made to the development approval.   Nor is it directed to s 367(1)(c) per se; but rather to s 367(1)(a).
  5. [50]
    On the evidence before me, I am satisfied the changes are such that they would not, because of the changes, result in a substantially different development.   For completeness, I have considered whether, in relation to the changes to the acoustic fence height, and the overall building heights (the only two of the changes that were also affected by the 2015 permissible change), there has been any incremental change, since the 2008 approval, which could be said to have resulted in a substantially different development.  I am satisfied there has not.

Are the proposed changes such that they would not, because of the changes, be likely to cause a person to make a properly made submission objecting to the proposed changes, if the circumstances allowed? – s 367(1)(c)

  1. [51]
    Importantly, the question is whether the proposed changes would provoke an adverse submission that was not provoked by the pre-existing approval, as amended from time to time.  The potential submitter to be considered is an average representative of the community, who is objective and rational, acting reasonably, and who is properly informed.
  2. [52]
    There is in evidence before me an express statement, on behalf of Beriley, that it would object to the changes the subject of this application, if the circumstances permitted.[61]
  3. [53]
    However, that does not automatically mean that s 367(1)(c) is not met.   It is for the responsible entity, in this case the Court, to determine, objectively, on the basis of the authorities which have considered that section, and on the basis of the evidence before it, whether it is satisfied of the matter referred to in s 367(1)(c).
  4. [54]
    An appropriate starting point for consideration of this issue is again Ms Morrissy’s report, because she describes the currently proposed changes as “generally minor” and, when considered in the light of the approval as amended in 2015, expresses the view that the changes would “qualify as a permissible change pursuant to section 367”, from which I infer she means both s 367(1)(a) and s 367(1)(c) are met. 
  5. [55]
    Ms Morrissy also makes some observations about the level of interest that Beriley has shown in relation to the applicant’s development, which I have referred to at paragraph [46] above.   The applicant refers to those observations, as evidence that Beriley cannot be considered an “average representative of the community”.
  6. [56]
    Although Ms Morrissy expresses the view that, when compared with the 2008 original approval, the currently proposed changes would be such as to cause Beriley to make a submission objecting to the changes, it is apparent that that is not “because of the changes”, which is what s 367(1) requires, but because of Beriley’s previously communicated concerns about a number of aspects of the development.  A stark example of this is Ms Morrissy’s express reference to the “reduced size in area and volume of the detention basin”, which is not a change currently sought to be made at all.[62]
  7. [57]
    The original submissions made by Beriley, objecting to the development, are in evidence.[63]  It seems that Beriley, by its director Mr Chan, was the only person or entity to take an interest in the development, by making a submission during the IDAS process.  The submissions from Beriley, in June, July and September 2007, address a broad range of issues about the proposed development.[64]  There is also in evidence a letter from Beriley to the Council, dated 19 March 2015, which I infer was written in the context of the previous (2015) permissible change application.  The letter describes the development as “an undesirable development with plenty of problems, including major issues in sewer, stormwater, earthwork, tree protection, traffic and access”.  The letter identifies the “fundamental concerns” as being stormwater discharge; sediment and erosion control and pollution; adverse impact and discharge from bio-detention basin; sewer; road work and priority infrastructure plan connecting Benhiam Street to Beaudesert Road; vegetation and management plan, tree protection; construction management plans; and that the “change of plan is not a permissible change and require public notification and full assessment under SPA” (each of which is then expanded upon in the letter).[65]
  8. [58]
    More recently, in a letter from Beriley’s solicitor dated 27 May 2016, the following is said:

“Our clients have serious concerns about the proposed permissible change to your client’s development permit.

These concerns are not new.  Beriley was a submitter to the original development application. Further, our clients have previously expressed in writing, and by oral submissions, concerns about the first permissible change application made with respect to your client’s land.

To assist, we attach a copy of a letter dated 19 March 2015 sent to the Respondent Council outlining our client’s concerns with respect to the proposed changes ultimately approved in Application No 4153 of 2014.

In summary, our client’s concerns are (without limitation):

  1. The increases to the building pads and the height of acoustic fence impact on the amenity of the proposed development of our clients’ land.
  1. The acoustic fence along the boundary is not necessary as the proposed development of our clients’ land provides an acoustic shield to the noise source from Beaudesert Road.
  1. The additional structural load of the retaining wall and acoustic fence has a deleterious impact on our client’s land.
  1. The extension of the retaining wall and acoustic fence (without any enhancement of the footing) raises structural adequacy issues.
  1. The changes to the detention basin may cause water to migrate to our clients’ site and affect the soil quality.”[66]
  1. [59]
    A few points to be made about the issues raised in this letter:
    1. (a)
      First, that they are “not new”.  What I am concerned with, on this application, in determining whether I am satisfied s 367(1)(c) is met, is whether the changes would be likely to prompt a submission, which was not provoked by the original application, or any previous changes.  That the issues Beriley would seek to agitate, if it had the opportunity, are not new, is a significant contrary indicator to that.
    2. (b)
      Second, they appear to proceed from a misconception of the nature of the changes now proposed, and their effects.   For example, the increase in height of some of the buildings is minor, and the overall height remains below the maximum of 9.5 m, imposed by condition 5 of the development approval.  The increase to the height, in some places of the acoustic wall, is also minor.  In both cases, there is no evidence to suggest any adverse amenity impacts.[67]  Whether there is any need for the acoustic fence at all is not something that arises “because of the change”.  The evidence is that there is no additional structural load on the retaining wall on the southern boundary.[68]  The minor changes in the height of the acoustic fence have no impact on the structural integrity of the footings of the fence.[69] 
    3. (c)
      Third, reference to the detention basin is simply irrelevant, as there is no change, in the currently proposed changes, to the detention basin.[70]
  2. [60]
    In an affidavit filed on 21 October 2016, Mr Chan, the director of Beriley, articulates a number of concerns about the applicant’s development, with the continuing consistent theme of concern about the detention basin.  In so far as the particular changes now proposed are concerned, Mr Chan only addresses the changes to the finished floor levels, which Mr Chan says cause him concern in relation to increased load on my retaining walls, increased seepage and stormwater runoff, amenity, and “consequential impacts to the application of condition relating to the acoustic fence”.[71]  Mr Lanning explains that:
    1. (a)
      there is no interrelationship between changing finished floor levels and creation of additional stormwater impacts;
    2. (b)
      the changes now proposed to the finished floor levels, compared to the 2015 approval, are marginal and will not have any impact on the Beriley land;
    3. (c)
      even when compared to the 2008 approval, the changes now proposed are generally of the same magnitude, and he cannot see that they will have any more than negligible impact from a civil or structural engineering perspective on the Beriley land; and
    4. (d)
      any such impact will be confined to additional load being placed on a retaining wall on Beriley’s land, but since the retaining walls on the Beriley land have already been constructed, and if they were constructed having regard to the finished floor levels in the 2015 approval, then to the extent there is any impact, that would be an overall reduction on the load being placed on those retaining walls, because in that area, the finished floor levels have been lowered.[72]
  3. [61]
    Having considered all the evidence carefully, I am satisfied that the changes are such that they would not, because of the changes, be likely to cause a person (being an average, objective and rational person, acting reasonably) to make a (relevant), properly made submission objecting to the proposed changes, that would not have been prompted by the original development.
  4. [62]
    In reaching this conclusion, I have particularly had regard to the following:
    1. (a)
      The proposed changes do not result in a substantially different development; they are minor variations to various aspects of the development, which remain consistent overall with what was originally proposed.
    2. (b)
      For that reason, and putting Beriley to one side for the moment, I am satisfied that the changes are not such as would cause a person to make a properly made submission, objecting to the changes, if the circumstances allowed.  Properly understood, there is nothing about the proposed changes that I would regard, objectively and reasonably, as likely to prompt such a submission.
    3. (c)
      I have formed the view that any objection Beriley would seek to make would not be “because of the changes” now proposed, but because of an entrenched opposition to the development, on far broader bases, including the permissible changes approved in 2015.   That view is reinforced by Ms Morrissy’s analysis, discussed above.
    4. (d)
      In so far as any of the Beriley material specifically addresses the changes now sought to be made (building height, and acoustic fence height), it does not engage with the evidence before the Court, which is to the effect that the changes are minimal, and will not have any adverse impact on the adjoining (Beriley) land. 
    5. (e)
      In all the circumstances, I consider it fair to say that Berily cannot be described as an “average representative of the community”, nor do I consider that its expressed desire to make a submission objecting to the changes is indicative of reasonable or objective action. 
  5. [63]
    There is a reason why s 367(1)(c) has been qualified in the way that it has by the Court.  The permissible change process is intended to be efficient, beneficial and flexible, either to adapt to changed circumstances as they emerge in the course of implementing a development proposal, or to facilitate resolution of disputes that may emerge.   In a case such as this, where the development is almost completed; the proposed changes do not result in a “substantially different development”; there is no basis to conclude, in a general sense, that the changes would be likely to prompt any adverse submission (having regard to the nature of the changes, and also given that no one other than Beriley made any submissions in the first place); the evidence before the Court is that the proposed changes will not impact on the adjoining (Beriley) land; and where a commercial competitor, Beriley, is the only party agitating for an outcome that would require a new development application to be made (with the attendant complexities, delay and cost that would entail), the qualifications applied to s 367(1)(c) are particularly important.
  6. [64]
    Applying those qualifications here, notwithstanding Beriley’s expressed intention, I am satisfied s 367(1)(c) is met.
  7. [65]
    It follows that I am satisfied the proposed changes are permissible changes.

Assessment – should the proposed changes be approved?

  1. [66]
    Under s 374(1), to the extent relevant, the responsible entity (in this case, the Court) must assess the request for a permissible change, having regard to (a) the information the person making the request included with the request; (b) the matters the responsible entity would have regard to if the request were a development application; (c) any submissions made about the original application; (d) any notice about the request given under s 373; and (e) any pre-request response notice about the request given to the entity.[73]
  2. [67]
    Ms Rayment’s report provides helpful assistance in relation to the matters required to be considered under s 374(1).  In relation to s 374(1)(a), I have considered all of the information the applicant has provided, as well as the material from Beriley.   In relation to s 374(1)(b), I am satisfied, on the basis of Mr Rayment’s evidence, that the development, as amended by the currently proposed changes, remains consistent with the relevant planning scheme provisions.  In terms of s 374(1)(c), I have had regard to Beriley’s submissions in relation to the original application, and do not consider that they indicate any reason why the currently requested changes ought not be approved.  Finally, in relation to s 374(1)(d), I note that the Council did issue a notice under s 373, on 30 September 2016, objecting to the proposed changes; however, following further information being provided by the applicant, as indicated at the beginning of these reasons, the Council did not oppose the application.  There is also in evidence correspondence from the Department of Infrastructure, Local Government and Planning, as the concurrence agency for the development approval, advising it has no objection to the proposed changes.[74]
  3. [68]
    I am satisfied it is appropriate to approve the request for the permissible changes to be made.  I will adjourn the proceeding, to enable the parties to prepare an appropriate order, and the requisite notices under s 376.

Footnotes

[1]  Report of Ms Rayment, town planning consultant, exhibit NJR-01 to her affidavit filed 2 September 2016, at p 7 (of the exhibit).  A copy of the current, as amended in 2015, approval, is annexed to Ms Rayment’s second affidavit, filed 18 October 2016, commencing at p 59.

[2]  Ms Rayment’s report, at p 9.

[3] Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53.

[4]  Part of exhibit MAO-1 to Mr Osborne’s affidavit filed 24 November 2016.

[5]  It was not controversial that none of the other sub-sections of s 367(1) are raised here.

[6] Steendyk v Brisbane City Council & Ors [2016] QPEC 47 at [54]-[57].

[7]  Explanatory notes to the Sustainable Planning Bill 2009, p 185.

[8] Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512C-D; Dickson Properties Pty Ltd v Brisbane City Council & Ors [2015] QPELR 595 at [22].

[9] Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512E; Emaaas Pty Ltd v Brisbane City Council & Ors [2014] QPELR 579 at [18].

[10] Emaaas Pty Ltd v Brisbane City Council & Ors [2014] QPELR 579 at [15].

[11]  I infer that there is a typographical error in [48], with the reference to s 371(1) intended to be a reference to s 367(1), given the preceding discussion.

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

[13]  Footnote 34:  See effect of ss 245 and 377 of the SPA.

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

[15]  The phrase used by the commentators in Fogg & Ors, Planning and Development Queensland, Lawbook Co, 2015, 6-1374; which is referred to by Everson J in Novadeck at [16].

[16]  Emphasis added.

[17]  See also Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561 at [17]-[25].

[18]  Footnotes omitted.  Emphasis added.

[19] Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405 at 407.

[20] Phipps Pastoral v Somerset Regional Council [2016] QPELR 698 at [14].

[21] Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 at [11].

[22] Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561 at [27]-[29].

[23] Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405 at 407H.

[24] Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [74]

[25] Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [108].  

[26]  See exhibit NJR-01 to Ms Rayment’s first affidavit, filed 2 September 2016, at pp 9-23 of the exhibit.

[27]   Ms Rayment’s report, at p 9-10.  See also exhibit 2 (amended plan), areas highlighted in yellow.

[28]  Second affidavit of Ms Rayment, at [19]-[20]; affidavit of Mr Lanning, filed 18 October 2016, at [6].

[29]  Ms Rayment’s report, at p 12.

[30]  Ms Rayment’s report, at p 12.   See also exhibit 2, areas marked in orange.

[31]  Ms Rayment’s report, at p 15.

[32]  See exhibit 2, marked in green.

[33]  Second affidavit of Ms Rayment, filed 18 October 2016, at [10]-[11]. 

[34]  Ms Rayment’s report, at p 15; second affidavit of Ms Rayment at [11].

[35]  Second affidavit of Ms Rayment, at [12].

[36]  See appendix 6 to Ms Rayment’s report, commencing at p 89 (report from Acoustic Works, dated 1 September 2016), in particular, at p 116.

[37]  See in particular affidavit of Mr Enerson, filed 14 December 2016, exhibit MCE-01 at p 16.

[38]  Affidavit of Mr Lanning, filed 18 October 2016, at [5.1].

[39]  Affidavit of Mr Lanning, at [5.1].

[40]  Ms Rayment’s report, at p 17.

[41]  Ms Rayment’s report, at p 18.  See exhibit 2, marked in blue.

[42]  Ms Rayment’s report, at p 18.

[43]  Second affidavit of Ms Rayment, at [13].

[44]  Ms Rayment’s report, at p 20 and appendix C, p 73-74.

[45]  Second affidavit of Ms Rayment, at [13].

[46]  Ms Rayment’s report, at p 20; second affidavit of Ms Rayment, at [14].

[47]  Second affidavit of Ms Rayment, at [13]-[15].

[48]  Second affidavit of Ms Rayment, at [16].

[49]  Second affidavit of Mr Lanning, exhibit KJL-01 at p 6; third affidavit of Mr Lanning, exhibit KJL-01 at pp 4-5.

[50]  Third affidavit of Mr Lanning, at exhibit p 5.

[51]  Ms Rayment’s report, at p 23.

[52]  Ms Rayment’s report, at pp 10-11.

[53]  Ms Rayment’s report, at p 12.

[54]  Ms Rayment’s report, at pp 13-15 (re trees); p 7 (re step in fence); pp 18-19 (car parking space); and p 23 (re verge).

[55]  Ms Rayment’s report, at pp 15-1616; second affidavit of Ms Rayment at [10]-[12].

[56]  Ms Rayment’s report at p 20; second affidavit of Ms Rayment at [13]-[18].

[57]  Report of Ms Morrissy, dated 23 November 2016 (part of exhibit MAO-1 to Mr Osborne’s affidavit filed 24 November 2016), at [10]-[11], p 11 of the exhibit.

[58]  Ms Morrissy’s report at [12], p 11 of the exhibit.

[59]  Section 377 of the Planning Act.

[60] Orchard at [43].

[61]  See exhibit MAO-1 to the affidavit of Mr Osborne, filed 24 November 2016.  See also the affidavit of Mr Chan, filed 21 October 2016.

[62]  Ms Morrissy’s report, at p 11.

[63]  See Ms Rayment’s report, at pp 25-33; and annexure 7, commencing at p 133.

[64]  See also annexures to the affidavit of Mr O'Brien, filed on 22 September 2015, at pp 8-30.

[65]  Annexures to Mr O'Brien’s affidavit, filed 22 September 2015, at pp 31-42.

[66]  Annexures to Mr O'Brien’s affidavit, filed on 22 September 2016, at pp 46-47.

[67]  The evidence is to the contrary:  see Ms Rayment’s second affidavit, at [12] (re the acoustic fence) and at [14]-[18].

[68]  First affidavit of Mr Lanning, at [5.2] and [6].

[69]  First affidavit of Mr Lanning, at [5.1]

[70]  Likewise, the annexure to the affidavit from Mr Osborne, being a report from HCE Engineers, date 23 November 2016, is not relevant, as it also relates to the detention basin.

[71]  Mr Chan’s affidavit, at [48].

[72]  Mr Lanning’s second affidavit, at pp 5-6 of the exhibit; Mr Lanning’s third affidavit, at p 5 of the exhibit.

[73]  No pre-request response notice has been sought or issued:  Ms Rayment’s report, at p 36.

[74]  Second affidavit of Ms Rayment, at p 52

Close

Editorial Notes

  • Published Case Name:

    Novadeck Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Novadeck Pty Ltd v Brisbane City Council

  • MNC:

    [2016] QPEC 68

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    22 Dec 2016

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
Arnold & Arnold Pty Ltd v Gold Coast City Council [2006] QPEC 75
1 citation
Jump To
Cite 1 - [2006] QPEC 75
Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409
2 citations
Jump To
Cite 1 - (2001) QPELR 409
Cite 2 - (2001) QPELR 409
Dickson Properties Pty Ltd v Brisbane City Council [2015] QPELR 595
1 citation
Jump To
Cite 1 - [2015] QPELR 595
Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579
2 citations
Jump To
Cite 1 - [2014] QPELR 579
Cite 2 - [2014] QPELR 579
Forde v Toowoomba Regional Council [2016] QPELR 259
2 citations
Jump To
Cite 1 - [2016] QPELR 259
Cite 2 - [2016] QPELR 259
Heilbronn & Partners Pty Ltd v Gold Coast City Council [2004] QPEC 80
1 citation
Jump To
Cite 1 - [2004] QPEC 80
Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386
2 citations
Jump To
Cite 1 - [2005] QPELR 386
Cite 2 - [2005] QPELR 386
Heritage Properties Pty Ltd v Redland City Council (2010) QPELR 510
2 citations
Jump To
Cite 1 - (2010) QPELR 510
Cite 2 - (2010) QPELR 510
Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561
3 citations
Jump To
Cite 1 - [2014] QPELR 561
Cite 2 - [2014] QPELR 561
Cite 3 - [2014] QPELR 561
Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53
4 citations
Jump To
Cite 1 - [2016] QPEC 53
Cite 2 - [2016] QPEC 53
Cite 3 - [2016] QPEC 53
Cite 4 - [2016] QPEC 53
Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council (2015) QPELR 462
9 citations
Jump To
Cite 1 - (2015) QPELR 462
Cite 2 - (2015) QPELR 462
Cite 3 - (2015) QPELR 462
Cite 4 - (2015) QPELR 462
Cite 5 - (2015) QPELR 462
Cite 6 - (2015) QPELR 462
Cite 7 - (2015) QPELR 462
Cite 8 - (2015) QPELR 462
Cite 9 - (2015) QPELR 462
Phipps Pastoral v Somerset Regional Council [2016] QPELR 698
1 citation
Jump To
Cite 1 - [2016] QPELR 698
Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405
3 citations
Jump To
Cite 1 - [2012] QPELR 405
Cite 2 - [2012] QPELR 405
Cite 3 - [2012] QPELR 405
Steendyk v Brisbane City Council [2016] QPEC 47
2 citations
Jump To
Cite 1 - [2016] QPEC 47
Cite 2 - [2016] QPEC 47

Cases Citing

Case NameFull CitationFrequency
Consolidated Gold Coast Holdings Pty Ltd v Council of the City of the Gold Coast [2017] QPEC 671 citation
Eljasie Pty Ltd v Cairns Regional Council [2021] QPEC 792 citations
1

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