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Spraybuilt Investments (1) Pty Ltd v Brisbane City Council[2018] QPEC 3

Spraybuilt Investments (1) Pty Ltd v Brisbane City Council[2018] QPEC 3

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Spraybuilt Investments (1) Pty Ltd v Brisbane City Council [2018] QPEC 3

PARTIES:

SPRAYBUILT INVESTMENTS (1) PTY LTD
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

3477 of 2015

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

6 February 2018, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2018

JUDGE:

Everson DCJ

ORDER:

  1. Application for an adjournment dismissed
  2. Application dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – Whether changes to a development application are a minor change – Whether changes to a development application result in a substantially different development

Sustainable Planning Act 2009 (Qld) s 350

Northbrook Corp Pty Ltd v Noosa Shire Council [2015]

QPELR 664

COUNSEL:

K Wylie for the appellant

SOLICITORS:

Mark Treherne & Associates for the appellant

Brisbane City Legal Practice for the respondent

  1. [1]
    This is an application seeking, amongst other things, an order that changes to the development application on which the decision being appealed was made come within the definition of a minor change pursuant to section 350 of the Sustainable Planning Act 2009. Relevantly it is necessary that the proposed changes not result in a substantially different development.
  1. [2]
    The appeal has a considerable history. It was originally filed in 2015. A previous application of this type was heard and determined by me on 10 June 2016 and the appeal proceeded to a merits hearing but was adjourned on the first day. Upon indicating some concerns I had as to whether or not the proposed changes come within the definition in section 350, having regard to their architectural presentation, Mr Wylie who appears on behalf of the appellant sought an adjournment to obtain architectural evidence.
  1. [3]
    Although it is usual for architectural evidence to be presented in an application of this type no architectural evidence is before me. Upon me indicating that it would appear that architectural considerations are relevant to the assessment of the development application, given the provisions of the respondent’s planning scheme identified in the affidavit of Mr Ovenden, the planner whose evidence is relied upon by the appellant, Mr Wylie has sought to investigate and potentially obtain evidence addressing these matters. On behalf of the respondent, Mr Osborne, although not formally opposing either application, submits that there are notable changes to the design and further submits that of particular concern is the consideration in Statutory Guideline 06/09 that the changes not dramatically change the built form of the development in terms of scale, bulk and appearance.
  1. [4]
    A combination of the patent differences in presentation and style, and the evolution of them from a design perspective over time, is such that I do not believe I would be assisted by an architectural analysis of the applicable statutory provisions relevant to architectural outcomes pursuant to the respondent’s planning scheme. As noted in Northbrook v Noosa Shire Council [2015] QPELR 664 at 669, the test in determining whether or not the proposed development is a substantially different development requires a consideration of the definition of “substantial” which is defined in the Macquarie Concise Dictionary as, inter alia, “essential, material or important.”
  1. [5]
    The application of this test in terms of the presentation of the changes from the perspective of the scale, bulk or appearance of the proposed development requires an objective assessment of fact by the court. Although an architectural analysis would clearly be of assistance in contextualising the changes, it is difficult to see how an analysis would be pivotal in determining the ultimate question fact as to whether the changes result in a substantially different development. I already have the benefit of Mr Ovenden’s assessment of the changes and suffice to say there has been a massive reduction in the GFA, and it is now proposed that the number of residential units be reduced from 37 to seven.
  1. [6]
    There is also a reduction in proposed building height from five storeys to three storeys with a partial fourth storey and a significant consequential reduction in bulk. All of these changes appear to be ameliorative on the evidence before me. However what is pivotal is the change in presentation of the built form. It goes from a bulky extremely modern looking five storey building with futuristic design elements to a much less bulky series of separated buildings which evoke traditional character elements such as predominantly gabled rooves. On any objective assessment it presents as a completely different architectural treatment, and this is conceded by both Mr Wylie and Mr Osborne.
  1. [7]
    On the facts before me, I would not be assisted by an architect explaining the changes in determining the question the subject of the application. The changes are so extreme from a design perspective that it is apparent from a perusal of the plans before me that what is now proposed is so different that it is essentially and materially different. Therefore, what is now proposed is clearly a substantially different development applying the definition in section 350 of the Sustainable Planning Act. Accordingly, I dismiss the application for an adjournment and I dismiss the application seeking an order that the proposed changes are a minor change.
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Editorial Notes

  • Published Case Name:

    Spraybuilt Investments (1) Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Spraybuilt Investments (1) Pty Ltd v Brisbane City Council

  • MNC:

    [2018] QPEC 3

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    06 Feb 2018

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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