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Sailmist Pty Ltd v Sunshine Coast Regional Council[2017] QPEC 63

Sailmist Pty Ltd v Sunshine Coast Regional Council[2017] QPEC 63

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Sailmist Pty Ltd v Sunshine Coast Regional Council & Anor [2017] QPEC 63

PARTIES:

SAILMIST PTY LTD ACN 010 988 280

(applicant)

v

SUNSHINE COAST REGIONAL COUNCIL

(first respondent)

and

CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009

(second respondent)

FILE NO/S:

70/2017

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

21 July 2017 (orders)

27 October 2017 (reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

21 July 2017

JUDGE:

Long SC DCJ

ORDER:

Application granted

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION – Where an application was filed seeking changes to a Development Approval – Where the respondents support the application – Where there was uncontested evidence of a town planner and of an environmental scientist and bushfire consultant, which supported the conclusion that the result would not be a substantially different development – Where the consent of the owners of the land subject of the approval, was evidenced in accordance with s 371 of the Sustainable Planning Act 2009 – Whether it is appropriate to grant the application

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – Where the application was filed but not determined prior to the commencement of the Planning Act 2016 – Where that commencement effected the repeal of the Sustainable Planning Act 2009 – Whether the Planning Act 2016 operates so as to preserve and continue the application of the SPA to this application

LEGISLATION:

Planning Act 2016 ss 288; 288(1); 288(3); 311; 311(1)(a)

Sustainable Planning Act 2009 ss 367; 367(1)a); 367(1)(b); 367(1)(c); 367(1)(d); 369(1)(d); 371; 376

CASES:

Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510

Wroxall Investments Pty Ltd v Cairns Regional Council [2011] 1 QPELR 82

COUNSEL:

A Davis (sol ) for the applicant

G Phillips (sol) for the respondent

SOLICITORS:

QuDA Planning Lawyers for the applicant

Sunshine Coast Council Legal Services for the respondent

  1. [1]
    What follows are the reasons for the findings and orders made in this matter on 21 July 2017.
  1. [2]
    By originating application filed on 15 June 2017, the applicant requests that change be made to a Development Approval, which was originally granted by judgment of this Court in 2008, and once previously amended by order made in 2015.
  1. [3]
    That Development Approval is for a subdivision of land, by way of reconfiguration into 27 lots, situated at 672-680, 716-718 Diddillibah Road and 11, 13, 45, 79, 115 and 147 Eudlo Flats Road, Diddillibah and Maroochydore Road at Kunda Park and described as Lot 2 on RP91620, Lot 13 on RP881293 Por108A, Lot 18 on RP849386 Por111, Lot 401 CG1382 Por111, Lot 4 on RP127113, Lot 1 on RP218139, Lot 2 on RP209054, Lot 10 on RP891925 Por108A, Lot 31 on SP100396 Por108A and Lot 32 on SP157045.
  1. [4]
    The material placed before the Court evidences the significant progress of the development, in that the second of three stages of it is currently under construction.
  1. [5]
    In essence and leaving aside the detail of some uncontroversial consequential amendments to conditions, the change sought to the approval was to remove the proposed vehicular access of an internal road servicing the subdivision, to Diddillibah Road. The effect would be that all 27 proposed lots would then only have access, via that internal road, to the wider road network by intersection with Eudlo Flats Road. By that change, the effect would be that two lots close to Diddillibah Road, would have access to the internal road by way of long driveway and footpaths, which driveway would allow access to Diddillibah Road for emergency vehicles only, through a locked gate.
  1. [6]
    Accordingly, the application was for approval of a permissible change to the Development Approval, pursuant to s 369(1)(d) of the Sustainable Planning Act 2009 (“SPA”).  And such an application requires attention to s 367 of SPA, which provides: 

367 What is a permissible change for a development approval

  1. (1)
    A permissible change, for a development approval, is a change to the approval that would not, because of the change—
  1. (a)
    result in a substantially different development; or
  1. (b)
    if the application for the approval were remade including the change—
  1. (i)
    require referral to additional concurrence agencies; or
  1. (ii)
    for an approval for assessable development that previously did not require impact assessment—require impact assessment; 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; or
  1. (d)
    cause development to which the approval relates to include any prohibited development.
  1. (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.” 
  1. [7]
    In this instance the application was pursued with the consent of both respondents as to the relief sought.[1]  In fact, it was the position of the Council that: 

“When of course the detailed planning started to occur, then what was found was that it was – the road was to be constructed on a ridgeline, and it fell away on either side actually, therefore, creating a road that had slip lanes and appropriate intersection treatment. So it became a difficulty and it would either be extremely expensive and costly to maintain, and/or alternatively would be unsafe. So this was considered by council to be a preferable solution for the local road system.”[2]

  1. [8]
    As was recognised by Robin QC DCJ, in Wroxall Investments Pty Ltd v Cairns Regional Council,[3] the issues relating to the road network external to the development, are particularly the responsibility and concern of the respondent.  And this exemplifies the appropriateness of giving some considerable weight, in these circumstances, to the respondents’ support of this application. 
  1. [9]
    Notwithstanding the assistance that may be attained from reference to the Ministerial Guideline: Statutory Guideline 06/09, 11 December 2009,[4]  in identification of the potential significance of impacts, including on traffic and the transport network and as raising the possibility of a result of a substantially different development within the meaning of s 367(1)(a) of SPA, the application was here supported by uncontested evidence of a town planner[5] and of an environmental scientist and bushfire consultant,[6] which supported the conclusion that the result would not be a substantially different development, including in identification of: 
  1. (a)
    Not just the difficulty and cost of effecting the originally proposed intersection with Diddillibah Road, due to the steep terrain, but also in the need to remove vegetation and the less than ideal outcome in respect of the safety of such an intersection; and
  1. (b)
    The suitability of the proposed single means of road access to Eudlo Flats Road, both in terms of the capacity of that road to meet traffic demands[7] and in terms of being the single point of egress in the event of risk from bushfire. 
  1. [10]
    Otherwise, no issue arose pursuant to s 367(1)(b) or (d). And in respect of s 367(1)(c), it was identified that most of the 33 properly made submissions in the original process of assessment, favoured the development and that each of the two submissions, which identified any issue in respect of the road access to Diddillibah Road, raised only concerns about the appropriateness and/or safety of that access. Therefore and in these circumstances it should be concluded that there was no likelihood of any properly made submission objecting to the proposed change, if circumstances allowed that.
  1. [11]
    It may be further noted that the consent of the owners of the land subject of the approval, was evidenced in accordance with s 371 of SPA and that it was accordingly appropriate to conclude that the application was for a permissible change to the Development Approval, within the meaning of s 367 of SPA.
  1. [12]
    Also and notwithstanding the repeal of the SPA, upon the commencement of the Planning Act 2016 (“PA”), on 3 July 2017, it was appropriate to continue to deal with and conclude this matter according to the provisions of the SPA and to which reference has been made.  It is clear that the intent of the PA was to transitionally preserve the operation of those provisions of the SPA to an extant application of this kind. 
  1. [13]
    For the applicant, specific reliance was placed on s 288 of the PA, upon the basis that an application of this kind was described as being of an “administrative” character and only required to be made to the Court, because the Development Approval was by way of earlier order of the Court.[8]  That is, the submission was to distinguish such an application from a “proceeding” in this Court, within the meaning of s 311 of the PA and to proceed upon the basis that this application was not therefore caught by s 311.  Otherwise, it might have been concluded that the more specific provision relating to proceedings in the Court might have been more apposite.
  1. [14]
    In this matter it was unnecessary to finally resolve the correctness of that contention. Notwithstanding the curiosity of the provision in s 288(3), it appears that the provision in s 288(1) of the PA is expressed broadly and sufficiently to cover this application. And if not, it might be concluded that there would not then be any apparent reason to conclude other than that it was caught by s 311(1)(a) of the PA.  Accordingly, there would be the same consequence as to the application of the relevant provisions of the SPA. 
  1. [15]
    Accordingly and on 21 July 2017 and in conjunction with a direction as to notification of the appropriate parties, pursuant to s 376 of the SPA, the following findings and orders were made:

UPON THE COURT BEING SATISFIED

  1. The requirements of the Sustainable Planning Act 2009 with respect to giving notice of this application have been complied with.
  1. The changes sought in the application, described in Attachment A to this judgment are permissible changes within the meaning of the Sustainable Planning Act 2009.

IT IS ADJUDGED BY CONSENT THAT

  1. The application to change the development permit in the way described in Attachment A to this judgment is approved.
  1. The parties bear their own costs of this proceeding.”

Footnotes

[1]  See Exhibit 2 in respect of the consent of the second respondent.

[2]  T1-10. 29-35.

[3]  [2011] 1 QPELR 82 at [31]-[43]. 

[4]  See Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 and Exhibit 3. 

[5]  Affidavit of S Vlato-Rulo, filed 21/7/17. 

[6]  Affidavit of J Lee, filed 21/7/17. 

[7]  Noting that because of more direct linkage to other more significant roads and commercial centres, it was more likely to be a preferred point of access, in any event. 

[8]  See s 4 of the Planning and Environment Court Act 2016 and the transitional provisions in Part 10 of that Act and as to the continuation of the Planning and Environment Court.

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Editorial Notes

  • Published Case Name:

    Sailmist Pty Ltd v Sunshine Coast Regional Council & Anor

  • Shortened Case Name:

    Sailmist Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2017] QPEC 63

  • Court:

    QPEC

  • Judge(s):

    Long SC DCJ

  • Date:

    27 Oct 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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