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Hobson Constructions (Qld) Pty Ltd v Chief Executive Administering the Planning Act (No 2)[2018] QPEC 57

Hobson Constructions (Qld) Pty Ltd v Chief Executive Administering the Planning Act (No 2)[2018] QPEC 57

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Hobson Constructions v Chief Executive Administering the Planning Act & Anor (No 2)  [2018] QPEC 57

PARTIES:

HOBSON CONSTRUCTIONS (QLD) PTY LTD

(applicant)

v

CHIEF EXECUTIVE ADMINISTERING THE PLANNING ACT

 

(first co-respondent)

TOWNSVILLE CITY COUNCIL

(second co-respondent)

FILE NO/S:

168 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

30 November 2018 (Order)

3 December 2018 (Reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

30 November 2018

JUDGE:

Long SC DCJ

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPLICATION – where the applicant filed an application for the making of  minor change to development permit, pursuant to s 78 of the Planning Act 2016 – where the court is the responsible entity – whether the proposed change is  minor change

LEGISLATION:

Planning Act 2016 ss 68, 78, 79, 81, sch 2

Planning Regulation 2017 s 44

CASES:

Hobson Constructions (Qld) Pty Ltd v Chief Executive Administering the Planning Act & Anor [2018] QPEC 56

COUNSEL:

A K Williams (sol.) for the applicant

A Fernandez (sol.) for the first co-respondent

C A Osborne-Jones (sol.) for the second co-respondent

SOLICITORS:

p&e law for the applicant

Ashurst Australia for the first co-respondent

Keir Steele Lawyers for the second co-respondent

  1. [1]
    These are the reasons for making, on 30 November 2018, an order in terms of an agreed draft, allowing an application to make minor change to a development permit for a material change of use of premises (preliminary approval overriding the planning scheme – section 3.1.6) from the rule 400 planning designation to the park residential designation (M09/07), in respect of premises situated at Granitevale Road Alice River, previously described as lot 2 on RP 738646 and part of lot 2 on RP 728339 (“the development approval”). More particularly, the application was to make changes to referral agency conditions attaching to the development approval.
  1. [2]
    It is common ground that the requirements for service of the originating application have been satisfied.[1]
  1. [3]
    This application was made pursuant to s 78(3)(b) of the Planning Act 2016 (“the PA”) because this Court granted the original approval and there were properly made submissions for the development application.[2]
  1. [4]
    The court is required to assess and decide the application in accordance with Chapter 3, Part 5, Sub-Division 2 and, most relevantly, s 81 of the PA but is not otherwise bound by the process under that sub-division.[3]
  1. [5]
    However, one issue covered in the applicant’s material relates to the issues arising pursuant to s 79(1A) of the PA. That sub-section provides as follows:

“(1A) Also, a change application must be accompanied by the written consent of the owner of the premises the subject of the application to the extent—

 (a) the applicant is not the owner; and

 (b) the application is in relation to—

  (i)a material change of use of premises or reconfiguring a lot; or

  (ii)works on premises that are below high-water mark and outside a canal; and

 (c) the premises are not excluded premises.”

Whilst this requirement may be seen, in the fuller context of the remainder of s 79, as directed at the procedural step of acceptance of an application for assessment, it may also be seen as directed at a consideration of a more substantive nature, potentially relevant to the assessment to be conducted.  Also and despite the difficulty of the reference in sub-paragraph (b) to “the application” being “in relation to – a material change of use of premises”, it is noted here that the approval given upon the original development application, was in relation to a material change of use of premises.  And it is for reasons that follow, difficult to see how any application for a minor change, to be considered pursuant to s 81 of the PA, could itself be “in relation to a material change of use of premises.”[4]

  1. [6]
    Here the materials include the consent of the owners of lot 2 on RP 738646 and part of lot 2 on RP 728339, being the balance of the lots that have been created but not sold to private owners as at the date of the application.[5]  However the consent of those owners of the residential lots that have been created and sold prior to the date of the application, has not been obtained.  That is said to be because the minor change application does not materially affect those premises, as being limited to external roadworks and because it would be impractical to obtain consent from the 120 owners of the sold lots.  In that regard, reference is made to the definition of excluded premises in the PA, which relevantly provides as follows:

excluded premises means—

……

  1. (b)
    for a change application or extension application – premises in relation to which one or more of the following apply for the application –

 ……

(iii)the responsible entity or assessment manager considers the application does not materially affect the premises and that because of the number of owners, it is impracticable to get their consent.”[6]

And reliance is placed upon the specific example provided in the definition:

“Example of when owners’ consent may be impracticable – since the development approval was given, the premises have been sub-divided and now has many owners.”

  1. [7]
    In the circumstances it may be accepted that as is common ground between the parties, the court may proceed on the basis of treating the now sold lots as excluded premises under paragraph (iii) of the definition and proceed to deal with the application.
  1. [8]
    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

(da)  … —all matters the responsible entity would or may assess against  or have regard to, if the change application were a development               application;[7]

  1. (e)
    another matter that the responsible entity considers relevant.”
  1. [9]
    For sub-paragraph (a), the applicant relies upon the material read in these proceedings and the resolved agreement of the parties in the context of that material.
  1. [10]
    For sub-paragraph (da), the proposed changes are noted to only relate to the conditions imposed by the Department of Transport and Main Roads (“DTMR”) and it is pointed out that none of the proposed changes relate to the otherwise approved development or the impact of it, apart from the extent to which those conditions imposed by DTMR, were directed at the impact of the development upon the surrounding road network.
  1. [11]
    And there is no suggestion of and there does not appear to be any other relevant matters, for the purposes of sub-paragraph (e).
  1. [12]
    Accordingly this application turns upon the issue as to whether or not the proposal is as to “minor change” to the development approval.
  1. [13]
    Assessing whether the proposed changes amount to “minor change” is a matter of assessing fact and degree and the proposed changes should be considered broadly and fairly, with guidance now to be found at Schedule 1, section 4 of the Development Assessment Rules.[8]  The definition of “minor change” under the Planning Act is as follows:[9]

minor change means a change that—

……

  1. (b)
    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. [14]
    Guidance in relation to the meaning of “substantially different development” is found in s 4 of Schedule 1 of the Development Assessment Rules. And it may be noted that whether or not s 3 of Schedule 1 of the Development Assessment Rules is necessarily applicable to the position of the Court as the “responsible entity” assessing this application for change, it is nevertheless a matter of assessing whether the proposal is in respect of “minor change” to the approval, whether considered in an individual or overall sense.
  1. [15]
    As has been noted, the proposal is not to change the subject development, rather it is to change some conditions originally imposed by DTMR as a consequence of and upon the development approval.
  1. [16]
    It is common ground that the current DTMR conditions require certain works to be done at specified times or events and that the work can be categorised as follows:
  1. (a)
    Constructing a designated left turn only lane on the Ridge Drive approach to Harvey Range Road (which work has been completed);
  1. (b)
    Upgrades to the intersections of Harvey Range Road with Ridge Drive, Granitevale Road, Rangewood Drive and Kalynda Parade;
  1. (c)
    Construction of Granitevale Road (currently a formed but unsealed road), and
  1. (d)
    Duplication of about 2km of Harvey Range Road in each direction. 
  1. [17]
    Those conditions also provide for the timing and event triggers for completion of each item of work, subject to change depending upon the rate of development and the submission of a further traffic impact assessment. And the conditions also contained various requirements for the way in which the work is to be carried out, including in relation to flood immunity, traffic amelioration, drainage and public transport.
  1. [18]
    The proposed changes are described as to:
  1. (a)
    Remove the condition requiring a left turn only lane on the Ridge Drive approach to Harvey Range Road, as that work has been completed;
  1. (b)
    Remove the requirement to upgrade the Harvey Range Road intersections with Kalynda Parade and Rangewood Drive;
  1. (c)
    Remove the requirement to construct Granitevale Road, although that road is still required to be constructed by the conditions imposed by Council;
  1. (d)
    Remove the requirement to duplicate a section of Harvey Range Road; and
  1. (e)
    The timing of the work that remains to be done under the conditions, with a retaining of a mechanism for reviewing the timing of work. 

It is also noted that the first respondent has taken opportunity to revise a number of the administrative requirements and to generally redraft and renumber the conditions.

  1. [19]
    It is pointed out the proposed changes are supported by a traffic impact assessment report, which has been developed in the following circumstances:
  1. (a)
    A condition of the DTMR conditions incorporated into the development approval required that a revised traffic impact assessment be provided no later than March 2018;[10]
  1. (b)
    The applicant provided a revised traffic impact assessment dated 12 February 2016 which updated information in relation to the development yield, staging, traffic impacts and consequential road upgrades as required by the DTMR conditions; and
  1. (c)
    After DTMR conditioned a technical review of that assessment and the adoption of parameters recommended in that review, the applicant relies upon a final version dated 16 April 2018 (“TIA”) as the proposed changes based on the findings and recommendations in that traffic impact assessment. 
  1. [20]
    It is further common ground that after participation in a joint meeting of experts and the production of a joint expert report (“JER”), agreement was reached that the provision of overtaking lanes, as proposed in the position statement of the first respondent dated 24 April 2018, are not reasonable required.[11] And that after a process of negotiation between the first respondent and the applicant the position has been reached where the proposed changes are agreed and not opposed by the second respondent. 
  1. [21]
    In these circumstances it may be concluded that the proposed changes do not result in a substantially different development, including by reference to the guidance provided in s 4 of schedule 1 of the Development Assessment Rules. In particular, it may be noted that the uncontested position before the court supports a conclusion that the proposal does not:
  • Change the ability of the development to operate as intended;
  • Remove any component that is integral to the operation to the development, particularly because the removal of certain requirements for road works is based on the recommendations in the TIA and the JER where such works were found to not be warranted by the development and therefore not integral to the development;
  • Significantly impact on traffic flow and the traffic network, as supported by the findings in the TIA;
  • Introduce new impacts or increase the severity of known impacts; or
  • Impact on infrastructure provisions because the conditions still require certain road works to be undertaken, with only the removal of some requirements as recommended and supported in the TIA. 
  1. [22]
    Further and in relation to sub paragraph (ii) of the definition of minor change, it is common ground and should be concluded that none of the precluding circumstances relevantly arise.
  1. [23]
    It was, therefore, appropriate to conclude that the proposal involves only minor change to the development approval.

Footnotes

[1]  See Affidavit of Helen Christine Smith filed 29 November 2017, Exhibit HCS–15 and HCS–16.

[2]  See Hobson Constructions Qld Pty Ltd v Chief Executive Administering the Planning Act & Anor [2018] QPEC 56.

[3]  See s 78(4) of the PA.

[4]  In particular, reference may be made to s 4(a) in Schedule 1 of the Development Assessment Rules.

[5]  Exhibit HCS-4.

[6]  See Schedule 2 of the PA.

[7]  Noting that pursuant to s 81(3) the court: “(a) must assess against, or have regard to, the matters that applied when the development application was made; and (b) may assess against, or have regard to, the matters that applied when the change application was made.”

[8]  As made pursuant to s 68(2)(e) of the PA and published pursuant to s 44 of the Planning Regulation 2017.

[9]  See schedule 2 of the PA.

[10]  Exhibit HCS-1, p 12, condition 4(a).

[11]  Affidavit of AK Williams filed X, AKW-15

Close

Editorial Notes

  • Published Case Name:

    Hobson Constructions (Qld) Pty Ltd v Chief Executive Administering the Planning Act and Townsville City Council (No 2)

  • Shortened Case Name:

    Hobson Constructions (Qld) Pty Ltd v Chief Executive Administering the Planning Act (No 2)

  • MNC:

    [2018] QPEC 57

  • Court:

    QPEC

  • Judge(s):

    Long DCJ

  • Date:

    03 Dec 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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