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G8C Pty Ltd ATF Crick Family Trust v Sunshine Coast Regional Council[2017] QPEC 77

G8C Pty Ltd ATF Crick Family Trust v Sunshine Coast Regional Council[2017] QPEC 77

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

G8C Pty Ltd ATF Crick Family Trust v Sunshine Coast Regional Council [2017] QPEC 77

PARTIES:

G8C PTY LTD ATF CRICK FAMILY TRUST

ACN 133 429 955

(applicant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

FILE NO/S:

D 174 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

15 December 2017 (Judgement allowing changes to Development Permit)

22 December 2017 (Reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

15 December 2017 

JUDGE:

Long SC DCJ

ORDER:

Application granted (allowing changes to Development Permit, as drafted)

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION – s 71 Planning Act 2016 – Where the applicant applied for the making of changes to a development approval previously granted by the Court – Where the applicant requests to make purportedly minor change to the development approval – Where the respondent supports the application – Where the application is supported by the uncontested evidence of a town planner – Whether the proposed changes are minor changes and should be approved

LEGISLATION:

Planning Act 2016 s 78; 78(3)(b)(iii); 78(4); 81(2); 81(2)(b); 81(2)(e); 81(3); 81(3)(a); 81(4)

Sustainable Planning Act 2009

CASES:

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

COUNSEL:

A Williams (sol) for the applicant

G Phillips (sol) for the defendant

SOLICITORS:

p&e Law for the applicant

Sunshine Coast Council Legal Services for the respondent

Introduction

  1. [1]
    These are the reasons for the judgement given on 15 December 2017, upon this application or request for the making of changes to a development approval previously granted by the Court, for a preliminary approval overriding the planning scheme for a material change of use of premises for Core Industry uses and a development permit for a material change of use of premises for General Industry and a development permit for the reconfiguration of a lot, being the land situated at 8-12 and part of 18 Sandalwood Lane, Forest Glen and described respectively as Lot 4 on RP113699, Lot 1 on RP96370, and part of Lot 1 on SP183176 (“the Land”).
  1. [2]
    The application for the subject development was “properly made” on or about 13 June 2007, on behalf of Focus Developments & Construction Pty Ltd who was the owner of the land at that time. The application:
  1. (a)
    Sought to override the Maroochy Plan 2000 (the planning scheme in force at the time);
  2. (b)
    Required referral to the following agencies:
    1. Department of Main Roads;
    2. Environmental Protection Agency;
    3. Department of Natural Resources and Water as Concurrence Agencies; and
    4. Department of Local Government and Planning as an Advice Agency;
  3. (c)
    Was impact assessable due to the General Rural Zoning of the subject site under the superseded planning scheme; and
  4. (d)
    Attracted two properly made submissions during public notification, one of which was subsequently withdrawn.
  1. [3]
    On 14 February 2008, the Council issued a Decision Notice refusing the application.
  1. [4]
    An appeal against that decision was filed on 11 March 2008 and given the file number 575 of 2008 (“the appeal”). On 1 February 2011 the applicant was substituted as the appellant in the appeal. On 2 March 2012, this Court allowed the appeal subject to conditions (“Development Approval”).
  1. [5]
    On 12 September 2017, the applicant sent a request to make minor changes to the development approval, to Council and the Department of Infrastructure Local Government and Planning (“DILGP”). The changes sought an amendment to the development permit for reconfiguration of a lot from a 3 lot into 4 lot subdivision to a 3 lot into 3 lot subdivision.
  1. [6]
    On 5 October 2017, DILGP gave a pre-request response notice to the applicant, as a relevant entity, indicating no objection to the proposed changes as revised.
  1. [7]
    On 27 November 2017, the Council gave a pre-request response notice to the applicant indicating Council’s support for the revised changes.

The Proposed Changes

  1. [8]
    The application is supported by the uncontested evidence of a town planner, Mr Pinese.[1] In summary, the changes seek to reduce the number of lots from four to three, by developing approved Lots 1 and 2 as a single lot, to be numbered Lot 1 and approved Lots 3 and 4 are renumbered accordingly and as demonstrated by reference to the approved and proposed plans which are labelled attachments “1” and “2”, respectively, in the exhibit “AJP-1” of Mr Pinese’s affidavit. There is some proposed readjustment of lot sizes and the size of a drainage easement, with adjustments to the corner truncation and alignment of the proposed internal access road. So as to “reflect the recently constructed road to the east and the approved operational works over the site”. And consequential changes are proposed to some conditions to reflect the change to the development.[2]

Jurisdiction

  1. [9]
    The application is made under the Planning Act 2016 (“the PA”) and pursuant to s 78, a person may make an application to change a development approval. If the changes are “minor changes”, this Court is the entity responsible for assessing and deciding the application, because the approval was given by court order and there were properly made submissions about the development application.[3]
  1. [10]
    The Court is bound to assess and decide the application in accordance with Chapter 3, Part 5, Subdivision 2, but is not otherwise bound by the process under that subdivision.[4] If the changes are ‘minor changes’, that will involve the application of s 81 of the PA.
  1. [11]
    Accordingly, the initial issue is as to whether the changes that are proposed are “minor changes”. That concept is relevantly defined as follows:[5]

Minor change means a change that –

… for a development approval—

  1. (i)
    would not result in substantially different development; and
  1. (ii)
     if a development application for the development, including the change, were made when the change application is made would not cause—
  1. (A)
     the inclusion of prohibited development in the application; or
  1. (B)
     referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or
  1. (C)
     referral to extra referral agencies, other than to the chief executive; or
  1. (D)
     a referral agency to assess the application against, or have regard to, matters prescribed by regulation under section 55(2), other than matters the referral agency must have assessed the application against, or have had regard to, when the application was made; or
  1. (E)
     public notification if public notification was not required for the development application.”
  1. [12]
    With regard to paragraph (i) of that definition, the “substantially different development” test is unchanged from the repealed Sustainable Planning Act 2009 (“SPA”).[6] Whether the changes are minor changes is a matter of fact and degree and proposed minor changes should be considered broadly and fairly, with guidance   formerly to be found in Statutory Guideline 06/09 under SPA.[7]  It may be concluded that similar guidance is now found at Schedule 1, section 4 of the Development Assessment Rules,[8] which provide:

Schedule 1: Substantially different development

  1. An assessment manager or responsible entity may determine that the change is a minor change[9] to a development application or development approval, where – amongst other criteria – a minor change is a change that would not result in ‘substantially different’ development.
  2. An assessment manager or responsible entity must determine if the proposed change would result in substantially different development for a change—
  1. (a)
    made to a proposed development application the subject of a response given under section 57(3) of the Act and a properly made application;
  1. (b)
    made to a development application in accordance with part 6;
  1. (c)
    made to a development approval after the appeal period.[10]
  1. In determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development, in the context of the change proposed.
  2. A change may be considered to result in a substantially different development if any of the following apply to the proposed change:
  1. (a)
    involves a new use; or
  1. (b)
    results in the application applying to a new parcel of land; or
  1. (c)
    dramatically changes the built form in terms of scale, bulk and appearance; or
  1. (d)
    changes the ability of the proposed development to operate as intended;[11] or
  1. (e)
    removes a component that is integral to the operation of the development; or
  1. (f)
    significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or
  1. (g)
    introduces new impacts or increase the severity of known impacts; or
  1. (h)
    removes an incentive or offset component that would have balanced a negative impact of the development; or
  1. (i)
    impacts on infrastructure provisions.”

 Whilst it may be noted that the criteria (in section 4) are not all expressed identically to those in the former Statutory Guideline,[12]the section is expressed permissively, rather than mandatorily, in respect of application of the criteria and accordingly they remain in the nature of guidelines and also, and particularly having regard to section 3, not as any exhaustive statement of circumstances that might be relevant to determination as to whether or not a substantially different development is involved.[13]

  1. [13]
    Mr Pinese has conducted an assessment of the proposed changes against the factors set out in the Development Assessment Rules.[14] Mr Pinese is of the opinion that the proposed change does not involve a new use, a new parcel of land, affect the operation of the proposed development, remove an integral component, significantly impact on traffic flow, introduce or increase impacts including impacts on infrastructure provisions or remove an incentive or offset component. He appropriately recognized that the factor that may be of some relevance, is as to whether the proposed change “dramatically changes the built form in terms of scale, bulk and appearance”.[15]
  1. [14]
    This is because as a single lot there is, hypothetically, the potential for one larger industrial building to be built, rather than two smaller ones, separated by any applicable setback requirements. However and as he noted, pursuant to condition 21 of the existing approval, which will remain unchanged, the buildings must still be constructed generally in accordance with the approved plans (which show building outlines, including setbacks). Any changes to the built form would require further approval and assessment against the applicable planning scheme industrial codes. Taking into account condition 21 of the approval, there will be no physical change to the built form and no other impacts.
  1. [15]
    Mr Pinese considers the approved plans to be compliant with the development outcomes of the industrial development codes in terms of setbacks, site cover and building height.[16]
  1. [16]
    Paragraph (ii) of the definition of “minor change” requires the Court to assume a hypothetical application now being made for the entire development, including the change, and has the effect of invoking consideration as to whether specific features of the development assessment process (prohibited development and additional referral agencies and public notification) would be engaged. If so, then such feature would preclude a conclusion of “minor change”. In this instance it is common ground that there is nothing to indicate any such preclusion.
  1. [17]
    The Court can therefore be satisfied that the physical changes to the lot configuration will not lead to any change to the built form, that in all other respects, the reduction in the number of lots is of negligible effect and that the proposed changes would not result in a substantially different development and amount to a minor change to the approval.

Assessment

  1. [18]
    However, these conclusions merely permit the application for change to be assessed and decided pursuant to s 81(4) of the PA:

“(4) After assessing the change application, the responsible entity

must decide to—

  1. (a)
     make the change, with or without imposing development conditions, or amending development conditions, relating to the change; or
  1. (b)
     refuse to make the change.”
  1. [19]
    Relevantly, s 81(2) of the PA requires the Court to consider the following when assessing a change application:

“(a) the information the applicant included with the application; and

…..

  1. (c)
     any pre-request response notice or response notice given in relation to the change application; and

…..

(da) all matters the responsible entity would or may assess against or have regard to, if the change application were a development application; and

  1. (e)
     another matter that the responsible entity considers relevant.”

Some elaboration is found in s 81(3), which relevantly provides:

“(3) For subsection (2)(d) and (da), the responsible entity—

  1. (a)
     must assess against, or have regard to, the matters that applied when the development application was made; and
  1. (b)
     may assess against, or have regard to, the matters that applied when the change application was made.”
  1. [20]
    A curiosity arises in relation to s 81(2)(b), which expressly provides for the following to be a consideration:

“(b)  if the responsible entity is the assessment manager—any properly  made submissions about the development application or another  change application that was approved.”

 The assessment manager for this development is the respondent Council and therefore, the Court, as the responsible entity, is not so specifically required to consider the properly made submissions. That outcome appears somewhat curious, given that one of the three factors that require this request to be made to the Court as the responsibility entity, is the fact that there were properly made submissions about the original development application.[17] It may be that such consideration is inherent in the assessment required by s 81(3)(a) and if not, may be regarded as relevant matter for s 81(2)(e).  It is unnecessary to dwell on the issue, because Mr Pinese addresses those submissions,[18] and appropriately concludes that the proposed changes will not exacerbate any of the concerns raised by submitters.[19]

  1. [21]
    Mr Pinese has considered the material filed with the application. That includes:
  1. (a)
    a copy of the Council’s pre-request response notice;[20] and
  1. (b)
    a copy of the DILGP pre-request response notice.[21]

It can be seen from those notices that the Council and the DILGP do not oppose the changes.

  1. [22]
    As noted above, s 81(3) requires consideration of the relevant matters at the time the original development application was made (the superseded planning scheme), but also permits consideration of the relevant matters that apply at the time of this application (the current planning scheme). Mr Pinese expresses his expert opinion about those matters in Exhibit “LJP-1” of his Affidavit at pages 5-6. In summary, he is of the opinion that:
  1. (a)
    The development of three lots instead of four would not create a further conflict with the now superseded Maroochy Plan 2000;
  1. (b)
    The superseded planning scheme zoned the subject site as General Rural Lands. The approval was given notwithstanding that designation and any attendant conflicts with that planning scheme. In Mr Pinese’s opinion, the proposed changes would not result in any new or different conflict with the reconfiguration of a lot code under the Maroochy Plan 2000;
  1. (c)
    Similarly, that the reduction in lot yield would not result in any further impacts on the matters addressed by the Maroochy Plan 2000 overlays. Those matters have been appropriately addressed in the design of the development and also in the conditions that were imposed upon the approval; and
  1. (d)
    That in the current planning scheme, the site is now zoned for industrial development. If a fresh application was made for the proposed three lot subdivision today, it would be code assessable and a “consistent use”. It is therefore submitted that the current planning for this site is supportive of the development as a whole, and the proposed change.
  1. [23]
    Not only are those views not contradicted and unchallenged in this application, but this Court’s review of the materials leads to a conclusion that they should be accepted. Further, it may be concluded that there do not appear to be any other relevant matters for the purpose of s 81(e). In that regard it is a clearly relevant consideration, of substantial weight, that the respondent Council, as the assessment manager and relevant planning authority, supports the application by consenting to the order which is sought.

Footnotes

[1]  Affidavit of LJ Pinese, filed 30/11/17.    

[2]  Ex. LJP-1 to the Affidavit of LJ Pinese, filed 30/11/17, at p 3-4.

[3]  PA s 78(3)(b).

[4]  PA section 78(4).

[5]  PA Schedule 2.

[6]   SPA s 367(1)(a).

[7]Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council [2010] QPELR 510, 514 (Rackemann DCJ).

[8]  The Development Assessment Rules are made pursuant to s 68(2)(e) of the Act and prescribed pursuant to s 44 of the Planning Regulation 2017.

[9]  For a definition of minor change, see schedule 2 of the Act.

[10]  For changing development approvals, see chapter 3, part 5, division 2, subdivision 2 of the Act.

[11]  For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment.

[12]  See Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council [2010] QPELR 510 at pp 148-149.

[13]  It may be noted that a “guideline of a public nature” is included within the meaning of “statutory instrument” in s 7(3) of the Statutory Instruments Act 1992.

[14]  Affidavit of LJ Pinese, filed 30/11/17, Exhibit “AJP-1” p 4.

[15]  Development Assessment Rules Sch. 1 s 4(c).

[16]  Affidavit of LJ Pinese, filed 30/11/17, Exhibit “AJP-1” p 4.

[17]  PA section 78(3)(b)(iii).

[18]  Affidavit of LJ Pinese, filed 30/11/17, Exhibit “LJP-1” at pp 5-6.

[19]  Original submissions are marked attachment “4” in Exhibit “LJP-1” at pp 56-63 in the Affidavit of LJ Pinese, filed 30/11/17.

[20]  Affidavit of LJ Pinese, filed 30/11/17, Exhibit “LJP-1”, attachment “3” p 44.

[21]  Affidavit of LJ Pinese, filed 30/11/17, Exhibit “LJP-1”, attachment “3” p 54. 

Close

Editorial Notes

  • Published Case Name:

    G8C Pty Ltd ATF Crick Family Trust v Sunshine Coast Regional Council

  • Shortened Case Name:

    G8C Pty Ltd ATF Crick Family Trust v Sunshine Coast Regional Council

  • MNC:

    [2017] QPEC 77

  • Court:

    QPEC

  • Judge(s):

    Long SC DCJ

  • Date:

    22 Dec 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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