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Telstra Corporation Ltd v Brisbane City Council[2017] QPEC 32

Telstra Corporation Ltd v Brisbane City Council[2017] QPEC 32

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Telstra Corporation Limited v Brisbane City Council [2017] QPEC 32

PARTIES:

TELSTRA CORPORATION LIMITED

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

3435 of 2015

DIVISION:

 

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

22 May 2017, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2017

JUDGE:

Everson DCJ

ORDER:

I declare that the proposed changes are a minor change

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

Sustainable Planning Act 2009 (Qld) ss 350, 760

Northbrook Corp Pty Ltd v Noosa Shire Council [2015] QPELR 664

COUNSEL:

M Williamson for the appellant

SOLICITORS:

King & Wood Mallesons for the appellant

Brisbane City Legal Practice for the respondent

Introduction

  1. [1]
    This is an application in pending proceeding in which the appellant is seeking a declaration that changes it wishes to make to a development application are a minor change as defined in section 350 of the Sustainable Planning Act 2009 (Qld) (“SPA”).
  1. [2]
    The appellant is appealing against the respondent’s decision to refuse a development application for a Telecommunications Facility, comprising a monopole and associated antennas to provide mobile telephone and data coverage. The development application was summarised in the planning assessment report in support of the development application in the following terms:

Telstra Corporation Limited (Telstra) has an existing telecommunications facility that comprises a 12 m high monopole (total height approximately 15 m) located at 297A Given Terrace, Paddington.  The current proposal consists of replacing the existing 12 m high monopole with a new 20 m high monopole (total height approximately 21.3 m) located on the adjoining lot, still within Telstra’s holding on 4 Hayward Street, Paddington.  The replacement telecommunications facility will accommodate new LTE700 and LTE1800 technology.  All electronic equipment will be housed in the existing Telstra exchange building.

  1. [3]
    The IDAS form 1 application listed the location of the premises the subject of the development application as being both 4 Hayward Street, Paddington, being lot 36 on RP19572, and 27A Given Terrace, Paddington, being lot 24 on RP179525.  The changed proposal seeks to demolish the existing monopole and place the new monopole within lot 24 and not build the new monopole in lot 26 as originally proposed.  Both lots adjoin each other although, obviously, they have different street addresses.  They are both owned by the appellant.
  1. [4]
    The proposed monopole was to be sited some 30 metres to the north-east of the existing monopole. It involved a slender pole with two identified antenna structures, namely a triangular headframe that is 4 m wide, projecting above the top of the monopole and future strap mounted units below the headframe structure. It was proposed to be 20 metres in height with an overall height to the top of the headframe of 21.3 metres.
  1. [5]
    The changes to the proposed development are firstly the relocation of the monopole to approximately 30 metres to the south-west to, roughly, the same location of the existing monopole, the reduction in the overall height of the monopole and antenna structure by 2.2 metres such that the overall height is 19.1 metres above ground level, the deletion of the triangular headframe and the replacement of it with slim line panel antennas, reducing the width of the antennas from 4 metres to 1.73 metres, and enhancing the capacity of the monopole by the addition of more radio frequency.
  1. [6]
    It is submitted that the changes mitigate the visual impact by reducing the bulk of the antennas, reducing the height of the monopole and increasing the capacity of the facility to meet the community’s needs for telecommunication facilities. However, the fact remains that the change in location of the monopole will increase the overall height in terms of AHD. This increase is from 53.88 metres AHD to 55.84 metres AHD, an increase of 1.96 metres. This increase is consequential upon locating the monopole to a position on the site which sits at a higher elevation.
  1. [7]
    The question before the Court is whether the proposed changes are a minor change as defined in section 350 of SPA. The only relevant consideration in this regard is whether the changes result in a substantially different development. In Northbrook Corporation Pty Ltd v Noosa Shire Council [2015] QPELR 664 at [13], the Court 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.”

  1. [8]
    In assisting the Court in determining this question in the context of the appeal, a submission has been made with respect to the matters set out in Statutory Guideline 06/09 made by the Chief Executive pursuant to section 760 of SPA. There is nothing in the matters canvassed in the guideline which suggests that the changes the subject of the modified plans will result in a substantially different development. The changes will potentially see a monopole that sits slightly higher but which appears less bulky in the vicinity of where the monopole the subject of the original development application was intended to sit. Although it will sit on a different lot, it will still sit within the land the subject of the development application.
  1. [9]
    On the facts before me I am satisfied that the changes the subject of the modified plans will not result in a substantially different development. I therefore declare that the changes to the development application are a minor change as defined in section 350 of SPA.
  1. [10]
    I further order that the appeal proceed to be heard and determined on the basis of the modified development application.
Close

Editorial Notes

  • Published Case Name:

    Telstra Corporation Ltd v Brisbane City Council

  • Shortened Case Name:

    Telstra Corporation Ltd v Brisbane City Council

  • MNC:

    [2017] QPEC 32

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    22 May 2017

Appeal Status

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

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