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Dunland Property Pty Ltd v Brisbane City Council[2021] QPEC 34

Dunland Property Pty Ltd v Brisbane City Council[2021] QPEC 34

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Dunland Property Pty Ltd v Brisbane City Council [2021] QPEC 34

PARTIES:

DUNLAND PROPERTY PTY LTD

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

4545 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

14 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

28 and 29 June 2021 with further material received to 9 July 2021

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed. The respondent’s decision is set aside and will be replaced with a decision making the change subject to conditions. The parties are invited to submit appropriate minutes of order. 

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal of a change application to a preliminary approval – where the change application sought to include a condition of approval that specifies the minimum rate of on-site carparking for multiple dwelling use – where the effect would be to specify rates of on-site carparking corresponding with those that previously applied under the Transport, Access, Parking and Servicing Policy (TAPS Policy) at the time when the preliminary approval was granted and also at the time the change application was made and decided – where those rates have subsequently changed to higher rates – whether the proposed change is of a kind that can be considered – whether the change is a minor change because it would not result in substantially different development – whether the change removes an integral component of the development – whether the change ought be granted in the exercise of discretion – where the traffic engineering evidence called by the respondent did not consider the merits of the proposed on-site carparking provision – where the traffic engineering evidence called by the appellant was to the effect that the proposed rates would be sufficient in the circumstances – whether fairness requires the holder of a preliminary approval to be protected from subsequent changes to development standards – whether the rights of submitters would be unduly compromised – whether the appellant ought be left to justify its proposed on-site provision when it applies for later approvals – where change justified on its merits

CASES:

Carillon Development Ltd v Maroochy Shire Council and Birch Carrol and Coyle and Ors [2000] QPELR 216

Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579

Ferreyra v Brisbane City Council [2016] QPELR 334

Harris v Scenic Rim Regional Council [2014] QPELR 324

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Thomco (No 2087) Pty Ltd v Noosa Shire Council [2020] QPELR 1113

LEGISLATION:

Planning Act 2016 (Qld) ss 49, 53, 78, 81A, 286, sch 2

Planning and Environment Court Act 2016 (Qld) ss 43, 45, 47

Sustainable Planning Act 2009 (Qld)

COUNSEL:

D Gore QC with M Batty for the appellant

G Gibson QC with R Yuen for the respondent

SOLICITORS:

Corrs Chambers Westgarth for the appellant

City Legal – Brisbane City Council for the respondent

Introduction

  1. [1]
    This appeal is against the respondent’s refusal, on 18 November 2019, of an application pursuant to s 78 of the Planning Act 2016 (Qld) (PA) to make what the appellant contends is a minor change to a preliminary approval in relation to the proposed development of a large site at 60 Bridge Street, Wooloowin previously owned by the Sisters of Mercy. The approved Proposed Site Master Plan and the Precinct Plan, read together, illustrate a mixed use development composed of:
  1. (a)
    a mix of lot sizes for 84 two or three storey terrace homes over five stages in the Residential (Terrace Home) Precinct;
  1. (b)
    three multiple dwelling buildings in the Mixed Use (Apartment Buildings) Precinct – Buildings A and B are eight storeys and contain 131 units collectively, and Building C is six storeys and contains 57 units;
  1. (c)
    the adaptive reuse of the existing heritage buildings in the Heritage Laundry Precinct and the Heritage Convent Precinct;
  1. (d)
    a 4,000m2 public park, along with internal private open space and recreation areas in the Local Park Precinct;
  1. (e)
    internal roads and on-site carparking; and
  1. (f)
    site access from Chalk Street, Merehaye Street and Morris Street.
  1. [2]
    The proposed change would[1] affect only Buildings A and B in the Mixed Use (Apartment Buildings) Precinct. The appellant has already received a subsequent development permit for Building C. Insofar as that precinct is concerned, the preliminary approval relevantly:[2]
  1. (i)
    gave a preliminary approval for certain uses, including multiple dwellings,
  1. (ii)
    set maximum building height and minimum setback requirements,[3] and
  1. (iii)
    nominated levels of assessment and associated assessment benchmarks for later applications. Relevantly it provided that a future application for a multiple dwelling would be subject to code assessment against the Multiple Dwelling Code, prescribed secondary codes, and other overlay codes identified in the planning scheme as applying to the site. The codes are to apply as amended from time to time.
  1. [3]
    One of the secondary codes that applies in the assessment of multiple dwellings is the Transport, Access, Parking and Servicing Code (TAPS Code). That deals with a range of matters one of which is the number of on-site carparking spaces to be provided by a development. The change sought by the appellant is to include a condition of approval that would specify the minimum rate at which on-site carparking would have to be provided for the purposes of a multiple dwelling use, rather than leaving that for determination at the development permit stage by the application of the TAPS Code. The balance of the TAPS Code, as amended from time to time, would still apply.
  1. [4]
    After assessing the change application the respondent was required to:[4]
  1. (a)
    make the change, with or without imposing or amending development conditions in relation to the change, or
  1. (b)
    refuse to make the change.

On appeal this Court effectively stands in the shoes of the decision maker in conducting a hearing anew.[5] The Court may confirm the respondent’s decision, change it or set it aside and make a decision replacing it or remit it.[6] The appellant bears the onus of establishing that the appeal should be upheld.[7]

  1. [5]
    The appellant offered, in the course of the hearing, to submit to an approval of its requested change being conditioned such that it:
  1. (i)
    only applies for the purposes of buildings A and B, being the two buildings in the Mixed Use (Apartment Buildings) Precinct for which it has yet to obtain a development permit, and
  1. (ii)
    only applies for four years, so as to exclude any possibility that the effect might be to “lock in” the rates sought for a more extended period of time.[8]

To that might be added that the rates are only to apply to a multiple dwelling use.

  1. [6]
    The TAPS Code is supported by the Transport, Access, Parking and Servicing Planning Scheme Policy (TAPS Policy). That policy has tables which specify on-site carparking rates for various uses. The rates the appellant now wishes to specify in its preliminary approval are those which were applicable for multiple dwellings on its site under the TAPS Policy at the time it:
  1. (i)
    sought and received the preliminary approval,
  1. (ii)
    sought and received the development permit for Building C,[9] in which the quantum of on-site carparking is, according to its development permit, to be provided in accordance with those rates,[10] and
  1. (iii)
    made the subject request to change the preliminary approval and as at the date the request was refused.
  1. [7]
    Those rates applied because, at the time, the TAPS Policy, in “Table 13 – carparking standards in specific cases”, specified a lower rate of on-site carparking for multiple dwellings where, as here, the site was within 400m walking distance of a dedicated public pedestrian access point of a major public transport interchange.[11] The TAPS Policy has however, since been changed to exclude such multiple dwellings from table 13 and to instead include them in “Table 14 – carparking standards in all other cases”. The rates have also been revised. The combined effect is to apply higher rates. The various rates are as follows (v. 17 is the current version):

Trigger

Proposed condition

TAPS Policy

v.3 Table 13

TAPS Policy

v.3 Table 14

TAPS Policy v.17 Table 14

1 bedroom dwelling

0.9

0.9

1

1

2 bedroom dwelling

1.1

1.1

1.25

2

3 bedroom dwelling

1.3

1.3

1.5

2

4 bedroom dwelling

1.3

1.3

1.5

2.5

Visitor parking

0.15

0.15

0.15

0.25

  1. [8]
    The proposed amendments were publicly notified in August 2019 and adopted on 19 November 2019,[12] the day after the subject change request was refused. The amendments came into effect on 29 November 2019. Whilst that postdates the subject change application, the amendments are of obvious relevance because they are rates that would currently apply (if the TAPS Policy rates were applied) in the absence of the change now sought.
  1. [9]
    The change to the rates in the TAPS Policy was made in order to better accommodate parking demand on-site, where those rates are used, so that multiple dwellings in suburban areas provide sufficient on-site spaces to accommodate demand.[13] Of their nature however, those general rates do not necessarily reflect the on-site carparking demand generated in the particular circumstances of a given site or development.
  1. [10]
    The appellant contends that the rates which previously applied to multiple dwellings on its site under the TAPS Policy, and have been applied in the approval of its Building C, are sufficient and appropriate for multiple dwelling use of proposed Buildings A and B and wishes to have its preliminary approval changed to specify those rates (which would prevent the Council from contending, on any subsequent application for a development permit, for the rates now specified in the TAPS Policy). It sought the change in order to secure certainty as it plans for that development, and, in particular, the future development permit applications to be made in accordance with the preliminary approval.[14]

Can the Proposed Change be Considered?

  1. [11]
    A person may make an application to change a development approval.[15] A development approval is a preliminary approval, a development permit or a combination of the two.[16] Here, the appellant obtained a preliminary approval under the Sustainable Planning Act 2009 (Qld) (SPA). That continues to have effect under the PA.[17] Section 49(2) of the PA however, defines a preliminary approval as the part of the decision notice that (relevantly) approves development. I am conscious that the change requested in this case is, in substance, to the part of the decision that varies the effect of the planning scheme. Section 286(6) of the PA transitions that as a variation approval. I raised with Counsel whether that presented a difficulty to considering the kind of proposed change sought. Both submitted that it did not.
  1. [12]
    Mr Gore QC drew attention to the fact that the change sought is, in this case, to the conditions of approval (which is the way the variations were effected in the particular preliminary approval) and that the preliminary approval includes the conditions imposed on that approval.[18] Mr Gibson QC submitted that the imposition of conditions is an appropriate way to effect variations. To that may be added the observation that the definition of a variation approval describes it as part of a preliminary approval.[19] I have been content to proceed on the basis the matter was put by the parties, namely that the change is of a kind that can be entertained.

The Issues 

  1. [13]
    The issues the parties submitted for determination were as follows:
  1. (1)
    Whether the change proposed by the appellant is a minor change because, if made, it would not result in substantially different development.
  1. (2)
    If the answer to question 1 is “Yes”, whether the Court should make the change proposed by the appellant pursuant to s 81A of the PA, having regard to the matters raised in paragraphs 4 and 5 of the Respondent’s Consolidated Grounds for Refusal.

There was significant overlap in the respondent’s arguments on those issues.

Consideration of the Issues

  1. [14]
    What constitutes a minor change of a development approval is defined in Schedule 2 of the PA. The definition has two sub-paragraphs, the second of which is uncontroversial in this case. The consequence is that the change in this case is a minor change if it satisfies the first sub-paragraph, in that it would not result in “substantially different development”. That term is not defined. The assessment of whether a change would or would not have that effect is a comparative task that involves evaluation which can be both quantitative and qualitative as may be relevant in the circumstances.[20] Matters of scale and degree are often involved and the particular context and circumstances of the case are important.[21] Whether a proposed change would result in substantially different development is considered broadly and fairly, rather than pedantically.[22]
  1. [15]
    Schedule 1 of the Development Assessment Rules deals with the concept of substantially different development. It provides, in part, as follows (footnote deleted):
  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.
  1. 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; 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.
  1. [16]
    As has been previously noted,[23] paragraph 4 of the rules does not purport to be a comprehensive list of changes that may result in substantially different development, nor does it provide that something which falls within the sub-paragraphs must necessarily be adjudged to result in substantially different development, although it may be. 
  1. [17]
    The issue of whether the specification of minimum on-site carparking rates, as proposed, would result in substantially different development was considered by the traffic engineers in their joint expert report (JER). Indeed, Mr Trevilyan, the traffic engineer retained by the respondent, restricted himself to this issue, offering no opinion on the merits of the proposed on-site carparking rates.[24] His view and reasoning in relation to the “substantially different development” point focused on the potential “impacts on infrastructure” reference in the decision rules. He said as follows:[25]

“10. In consideration of this, BT considers that the sought change must necessarily constitute substantially different development as there is an impact on infrastructure provision by way of the proposed car parking supply sought being less than that the current condition requires. This is due to the current condition requiring car parking to be provided in accordance with the requirements of the planning scheme, and the minor change application seeks to provide less car parking space than the planning scheme requires. The variation sought would necessarily conflict with Acceptable Outcome (AO) 13 of the Transport, access, parking and servicing (TAPS) code as the on-site provision of car parking would not comply with the standards in the TAPS planning scheme policy.”

  1. [18]
    The appellant challenged Mr Trevilyan’s reading of the reference to the infrastructure provision as extending to the provision of on-site carparking. Whilst I tend to agree, I regard Mr Trevilyan’s assessment as inadequate in any event. It assumes that the variation seeks on-site carparking of “less carparking space than what the planning scheme requires”. This treats the rates quoted in the TAPS Policy as if they were mandatory requirements of the planning scheme. They are not. The planning scheme and, more particularly, the TAPS Code is performance based. It utilises the familiar performance outcome/acceptable outcome format. Unsurprisingly, the TAPS Policy, being a policy, is referenced in the relevant acceptable outcome (not the performance outcome). The rates in the tables are not mandatory.
  1. [19]
    The provisions of the scheme provide that compliance with a code may be achieved by complying with the purpose, overall outcomes and performance outcomes or the acceptable outcomes.[26] The relevant performance outcome[27] (PO13) does not specify any rate nor does it refer to the TAPS Policy. It requires provision of on-site carparking spaces to accommodate the design peak parking demand without any overflow of carparking. If that can be established,[28]  it matters not that the number of carparks provided for a given development is less than that calculated in accordance with the rates in the TAPS Policy. As Mr Healey, a well qualified and experienced traffic engineer engaged by the appellant, said in the JER,[29] it is entirely normal for alternative solutions (to the acceptable outcome) to be developed for carparking, which consider the specific characteristics of the site and the resultant carparking demand.
  1. [20]
    Compliance through meeting the performance outcome is just as much compliance as compliance through adoption of the acceptable outcome. It is not a relaxation or waiver of the acceptable outcome. It is simply the nature of performance based planning, which has been a feature of planning schemes in Queensland for two decades. It might still not be well appreciated by the uninitiated, but should be, and I am sure is, by experienced practitioners such as Mr Trevilyan. Indeed Mr Trevilyan makes some reference to it later in the JER (to which I will return).
  1. [21]
    All Mr Trevilyan really does is observe that the rates which the appellant now seeks to have specified in the preliminary approval are less than those currently specified in the TAPS Policy. He does not consider the magnitude or consequence of the difference in its application to development of the subject site in accordance with the preliminary approval in order to form an opinion in relation to whether it would result in substantially different development. He contents himself with the fact of nonconformity with the new rates in the TAPS Policy. That of itself does not take the matter very far, having regard also to his failure to have regard for whether what is proposed is nevertheless consistent with the planning scheme provisions and appropriate.
  1. [22]
    The submissions for the respondent put the case with respect to substantially different development not on the basis of infrastructure provision, but rather on the basis that the change would remove something integral to the operation of the development approved by the preliminary approval, namely the provision of on-site carparking as determined at the time of future development applications supported by appropriate traffic impact assessments in the context of contemporary carparking standards, set by the planning documents. It was submitted that the Court could not be satisfied that the change would not result in substantially different development. Indeed it was said that the definition of minor change cannot be shown to be satisfied in circumstances where a condition with respect to carparking locks in a particular set of requirements which will apply to subsequent applications.
  1. [23]
    It is, of course, commonplace for preliminary approvals which include variation approvals, to vary the effect of planning schemes by, amongst other things, setting assessment benchmarks, including in the nature of standards or requirements, that are “locked in” to apply when later approvals are sought, irrespective of the then provisions of the planning scheme. The preliminary approval in this case specifies maximum building height and minimum setbacks. The proposal is now to make a change to specify one further parameter, namely the rate of provision of on-site carparking, for a particular use for two specific buildings. The fact that the parameter is currently one of those left for determination by reference to the planning scheme provisions and, in particular, one of its various codes, at the time of a subsequent application does not necessarily disqualify the change from being considered to be minor.
  1. [24]
    This is an unusual context for a contention that a change would remove a component that is integral to the operation of a development. That consideration arises for consideration more plainly where a particular feature of a multifaceted proposed development would be either deleted (such as the deletion of a cinema component from a shopping centre proposal)[30] or rendered only optional[31] by the change. There is no proposal here to remove the on-site carparking component of the development. There is, on any view, substantial on-site carparking to be provided for Buildings A and B, just as there is under the development permit now granted for Building C. The question, at most,[32] relates to the rate to be used to calculate the quantum of that carparking for two buildings in the development.
  1. [25]
    Further, what the appellant seeks to do is not to change, but to embrace, the rate of provision that would have been compliant when the preliminary approval was sought and granted, and to thereby protect itself from the potential for the Council to contend for changed (and higher) rates in the future in reliance on changes to the TAPS Policy subsequent to when the preliminary approval was granted.
  1. [26]
    This is ultimately an issue about the quantum for one parameter (the number of on-site carparking spaces) for two buildings within the development the subject of the preliminary approval. It should be remembered that the question is not whether the change could or would result in a lesser number of on-site carparks for Buildings A and B. Even assuming it had that effect, the question would remain as to whether that would result in substantially different development to that approved by the preliminary approval. As Mr Schomburgk (the town planner engaged by the appellant) pointed out,[33] the proposal seeks only to add a condition that will provide clarification and certainty as to the required on-site carparking provision and will not change the built form or overall development intent of the subject matter of the preliminary approval. I am also satisfied that, as he also said,[34] the change will have no practical effect on the nature, scale or operation[35] of the development.
  1. [27]
    As my later treatment of the merits of the proposed condition reveals, there is no evidentiary basis, in the traffic JER, for the concern of Mr Perkins (the town planner engaged by the respondent) in relation to inadequate on-site parking and parking spill over with the potential to disrupt traffic.[36] I have already dealt with Mr Trevilyan’s remarks on infrastructure to which Mr Perkins also referred.[37] I do not consider that the change would result in substantially different development even if it is assumed that it would result in a lesser provision of on-site carparks (which, for the reasons given later, I consider is unlikely).
  1. [28]
    The appellant gains some comfort on this issue from an assessment of the merits of its intended carparking provision. That was something carried out, from a traffic engineering perspective, only by Mr Healey whose evidence in the JER was to the following effect:
  1. (i)
    The specific characteristics of the site are such that there is a very high probability that the parking demands will be less than the parking provision rates in the TAPS Policy.[38]
  1. (ii)
    The subject site benefits from very high levels of local connectivity to a network of active and public transport infrastructure (detailed in the JER) providing significant opportunities for future residents to utilise transport modes other than private motor vehicle.[39]
  1. (iii)
    Average vehicle ownership for 1, 2 and 3 bedroom dwellings[40] within key statistical areas is significantly less than the minimum parking rates in the TAPS Policy for the respective dwelling size.[41]
  1. (iv)
    Parking demand modelling of the development demands undertaken by Mr Healey demonstrates that the probability of carparking demands exceeding the proposed supply is very low.[42]
  1. (v)
    The location and design of the development is such that there is, in any event, very limited likelihood of overflow carparking on surrounding streets. Those streets immediately adjacent to the site[43] have limited on-street parking and opportunities further afield are unlikely to be convenient. These are matters many buyers will consider prior to purchase or taking up residence.[44]
  1. (vi)
    The proposed condition specifies a provision that does not, in any way, prejudice the achievement of PO13 of the TAPS Code.[45]
  1. [29]
    It has already been noted that Mr Trevilyan decided not to offer any opinion in the JER in relation to the merits of the proposed on-site carparking provision. He was however, obviously in a position to point out any error or defect or lack of justification in the basis for Mr Healey’s view. He did not, in the JER, make any comment on the substance of Mr Healey’s opinions on the merits or their bases. At the hearing, Senior Counsel for the respondent did not attempt to call Mr Trevilyan to adduce any evidence in relation to the merit issue and Mr Healey was not required for cross-examination. Accordingly Mr Healey’s evidence in relation to the merits of the proposed condition was not criticised, contradicted or otherwise challenged by any like expert and he was not challenged by cross-examination.
  1. [30]
    Notwithstanding the above, some points were sought to be made, in submissions for the respondent, in relation to Mr Healey’s evidence. First it was said that, on his evidence, the proposed provision of carparks might not be sufficient, with potential consequences for overflow carparking. It was pointed out that he did not speak in absolute terms, but rather said that there is a “very high probability” of demand being less than the TAPS Policy and a “very low” probability of it exceeding what is proposed to be provided. Whilst the calculation of numbers of carparks by reference to specified rates is a mathematical exercise, the prediction of the actual demand that will be generated by a given proposed development on a particular site is, of its nature, a matter involving degrees of probability. Such judgments or predictions are commonplace in assessing the acceptability of all manner of proposals and would be involved in establishing compliance with PO13 of the TAPS Code for the purposes of obtaining a development approval. The language used by Mr Healey does not cause me any concerns.
  1. [31]
    It was sought, in submissions, to undermine Mr Healey’s opinion by pointing out that the average vehicle ownership rates for multi-bedroom dwellings, quoted by him in the JER, are higher than the proposed rates for provision of on-site carparks for units of those sizes. Whilst the fact that vehicle ownership rates for various sized dwellings across the statistical areas are significantly less than the TAPS Policy carparking rates for multiple dwellings suggests that the carparking rates in the TAPS Policy may exceed what is required by such development in that area, it does not follow that carparking demand from the subject development, at its location, will be as great as the average vehicle ownership rates. I note that for example, Mr Healey’s evidence otherwise shows that the subject development is located on a site with very high levels of local connectivity to a network of active and public transport infrastructure within a broader area that otherwise has vehicle ownership rates already lower than the carparking rates in the TAPS Policy. Since he was not challenged in this way by his counterpart in the JER or by cross-examination, Mr Healey was given no opportunity to respond to the suggestion that his opinion is undermined by the vehicle ownership rates he presented. I do not accept that it is.
  1. [32]
    Further Mr Healey went on, in the JER, to say that the vehicle ownership rates were utilised by him in modelling of the development demand and that the modelling demonstrated a very low probability of demand exceeding the proposed supply. It was submitted, for the respondent, that the Court should not place weight upon that evidence because it offends the statement of reason rule,[46] by giving no detail or explanation about how the modelling was undertaken and how it came to that result utilising that data. It should be noted that this is only part of Mr Healey’s evidence on the merits of the proposed condition, the totality of which could not be said to be a mere unexplained bald conclusion. Whilst it would have been more helpful had the detail of the modelling been provided, it is difficult to be too critical of Mr Healey’s evidence or the appellant’s failure to adduce further evidence from him in this regard, in circumstances where neither the fact or veracity of the modelling or its outcome (or indeed the merits of the proposed condition from a traffic engineering perspective) were matters of contest in the JER or otherwise before or during the hearing prior to the close of the evidence and no objection was taken to the admission into evidence of that part of the JER. I am not prepared to ignore Mr Healey’s evidence in those circumstances.
  1. [33]
    It has been noted that the respondent contended that the determination of the adequacy of on-site carparking is appropriately done at the time of applications for later approvals. Part of the justification for that was the anticipation that a later application would be accompanied by a transport impact assessment report. Mr Healey has however, sufficiently considered matters of relevance to reach an informed and valid conclusion. In any event, Mr Healey was not criticised by his counterpart in the JER nor challenged under cross-examination in relation to having an insufficient basis for, or having carried out an insufficient assessment to support, his opinions as to the merits of the proposed condition.
  1. [34]
    I am satisfied, on the basis of Mr Healey’s evidence (and on the balance of probabilities), that the proposed condition would provide sufficient on-site carparking to accommodate demand for Buildings A and B of the development the subject of the preliminary approval for the site so as not to generate overflow carparking. That finding leads me to further find that, irrespective of the tables in the TAPS Policy, the change would not, in any way, compromise the operation of the development, whether by removal of a component as alleged by the respondent or otherwise. Further, it is likely that it would not even lead to a reduction in the number of on-site carparks required for multiple dwellings A and B if the change were not made, since, on the evidence, it is likely that the appellant could justify provision at the proposed rates as complying with the TAPS Code, and, in particular the relevant performance outcome, irrespective of the rates specified in the TAPS Policy from time to time. Those findings reinforce the finding that the change would not result in substantially different development. The effect of the change would be to afford certainty in relation to the acceptable rate of provision of on-site carparking for Buildings A and B on this site. It would not, I find, be productive of substantially different development.
  1. [35]
    It was submitted, for the respondent, that the change should, in any event, be refused on discretionary grounds. The issues for determination, as submitted by the parties, referred to the matters raised in paragraphs 4 and 5 of the Respondent’s Consolidated Grounds for Refusal. Paragraph 4 relates to the change to the TAPS policy, which has already been dealt with. It should be noted however, that paragraph 4, whilst drawing attention to the departure of the proposed rates from AO13 (and the new TAPS Policy rates), says nothing about the performance outcome and does not assert that the proposed rates would in fact be deficient in the circumstances. Paragraph 5 relates to the effect on submitters.
  1. [36]
    Reference was made to what was said to be the undesirability of fixing and applying outdated standards when those standards have changed and may change again in the future. It was pointed out that, as Mr Trevilyan said in the JER[47] (notwithstanding his characterisation of the TAPS Policy tables as requirements) and as I have already found, the appellant could, instead of seeking to change the preliminary approval, “simply demonstrate conformance with the relevant PO(s) at the time” it makes its applications for development permits. It was submitted, for the appellant, that it is, in effect, simply trying to preserve the status quo and that there is unfairness in the Council wanting to significantly “change the ground rules” during the life of the preliminary approval. In that regard:
  1. (a)
    There is, in my view, no dictate of fairness that would necessarily, or even generally, call for a preliminary approval to be changed simply to save the holder of it from having to comply with new standards that would otherwise apply to later approvals by reason of subsequent amendments to provisions otherwise unaffected by the terms of a preliminary approval. There is certainly no presumption in favour of changing a preliminary approval in those circumstances.
  1. (b)
    In this case however:
  1. (i)
    The changes to the standards are to provisions of a policy referenced in an acceptable outcome in a code. The corresponding performance outcome, which has remained constant, specifies no particular rate, leaving scope for identifying a provision (or rate of provision) that is compliant for the particular development in its context;
  1. (ii)
    The evidence satisfies me that the proposed rate of provision, whilst at variance to the existing (and perhaps any future) rate or standard in the TAPS Policy does not compromise achievement of the performance outcome and is adequate and appropriate for Buildings A and B given the particular circumstances of the development in its location;
  1. (iii)
    Accordingly, the rate of provision sought to be specified in the change is justifiable on its merits, rather than on the basis of protecting the appellant from a “change to the ground rules”;
  1. (iv)
    Whilst, it would be open to the appellant to establish compliance with the TAPS Code with respect to carparking by compliance with the performance outcome at the time later applications are made;
  1. (A)
    that does not prevent the appellant from seeking to secure its proposed carparking rate by way of a change to the preliminary approval and does not render approval of such a change inappropriate;
  1. (B)
    its desire for certainty in relation to this parameter is understandable in the circumstances; and
  1. (C)
    the provision of certainty in relation to the parameters for future development is, as Mr Gibson QC conceded in the course of submissions,[48] a legitimate purpose of a preliminary approval which includes a variation approval. Such approvals provide the framework within which further approvals are sought.[49]
  1. [37]
    A point was sought to be made about the effect of the change on the rights of submitters. It was pointed out that any development application that includes a variation request must be publicly notified.[50] It was submitted, for the respondent, that the appellant could have, but did not, seek to have the preliminary approval specify the carparking rates and that to permit that change now would be to deny the public the opportunity to make submissions about the adoption of carparking rates that are less onerous than the TAPS Policy, the amendments to which themselves were the subject of public consultation. It was also pointed out that some of the submissions made in response to the application for preliminary approval had raised concerns with respect to carparking. In that regard:
  1. (i)
    As has been noted, at the time the preliminary approval was sought, subject to public notice and decided, the TAPS Policy was in its former state which had rates that the appellant was content to adopt.[51] Whilst the appellant did not, at that time, ask for the rates in the policy to be “locked in” by the preliminary approval, the Council had not given notice of the proposed amendments to more “onerous rates” and there was no apparent reason to anticipate a change;
  1. (ii)
    There were two submitter appeals in relation to the preliminary approval. That litigation was resolved by agreement. I raised a question about those submitter appellants not being consulted about a change to the approval that flowed from a consensual resolution of the litigation, but was informed that carparking was not an issue in those proceedings;
  1. (iii)
    The change would not affect any submitter rights in relation to the further applications that are required for the development the subject of the preliminary approval, since those applications are, in any event, code assessable;
  1. (iv)
    Refusal of the current application would not necessarily lead to a new publicly notified application for a new preliminary approval including a new variation approval. The appellant could choose to establish compliance with the TAPS Code in future code assessable applications without adopting the acceptable outcome;
  1. (v)
    Whilst a hypothetical new development application for a preliminary approval including a variation request would trigger further public notification, the legislation permits minor changes to existing preliminary approvals without public notification; and
  1. (vi)
    The proposed change does not involve a challenge to the amendments to the TAPS Policy which have been duly adopted following public consultation. No challenge is mounted to them as rates for the purpose of the TAPS Policy. The TAPS Code however, does not require their application in all circumstances. The change sought here is to specify rates appropriate for the particular development in the particular circumstances. There is uncontroverted expert traffic engineering evidence from Mr Healey to the effect that what is proposed is sufficient. The respondent which relies, as a matter going to discretion, on the absence of an opportunity for input from submitters on the question of the adequacy of carparking numbers itself called no expert traffic engineering evidence to contest the merits of the proposed rates and did not require Mr Healey for cross-examination.
  1. [38]
    The submissions for the appellant were to the following effect:
  1. (1)
    the proposed change to the approval does not speak of a change to the underlying development the subject of the approval, or at least one that is productive of substantially different development. The change is minor;
  1. (2)
    the respondent’s opposition to the change appears to be motivated by city wide policy considerations[52] rather than by considerations directly relevant to the proposed change at hand, and
  1. (3)
    given the evidence that the proposed condition is adequate for the development, the discretion ought be exercised in favour of granting the requested change.

The respondent’s motivations (as distinct from its contentions) are of no present interest. There was however, I accept, a difference in the focus of the competing cases with the respondent’s case having a greater emphasis on broader policy considerations. For the reasons given I otherwise accept those submissions of the appellant.

Conclusion

  1. [39]
    I am satisfied that the appellant has discharged its onus. The appeal is allowed. The respondent’s decision is set aside. The Court will make a new decision replacing it with a decision making the change subject to the conditions indicated. I will ask the parties to submit appropriate minutes of order.

Footnotes

[1]  Ex 5 pp 6-9.

[2]  on the conditions offered during the hearing which are noted later in the reasons.

[3]  by requiring compliance with those parameters in order for the provisions as to levels of assessment and associated benchmarks for subsequent applications to apply.

[4]  s 81A of PA.

[5]  s 43 of Planning and Environment Court Act 2016 (Qld) (PECA).

[6]  s 47 of PECA.

[7]  s 45 of PECA.

[8]  it was pointed out, for the respondent, that a development permit obtained within that time might not be acted upon for some further time but that does not lead me to conclude that the specification of the carparking rate for the period proposed is unacceptable or inappropriate in this case.

[9]  approved on 2 August 2019 – Ex 2 pg 225.

[10]  Ex 6 pg 11.

[11]  subject to some other qualifications not presently relevant.

[12]  Ex 11.

[13]  Ex 2 pp 316-317.

[14]  Ex 2 pg 301.

[15]  s 78 of PA, Ex 11.

[16]  s 49 of PA.

[17]  s 286 of PA.

[18]  s 49(5) of PA.

[19]  Schedule 2 of PA.

[20] Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579 at [15].

[21] Harris v Scenic Rim Regional Council [2014] QPELR 324 at [104].

[22] Ferreyra v Brisbane City Council [2016] QPELR 334 at [25].  

[23] Thomco (No 2087) Pty Ltd v Noosa Shire Council [2020] QPELR 1113.

[24]  Ex 8 para 8.

[25]  Ex 8 para 10.

[26]  s 5.3.3 of Ex 3A.

[27]  it being common ground that the site is outside the city core and city frame.

[28]  together with meeting the purpose and overall outcomes of the code.

[29]  Ex 8 para 16.

[30] Carillon Development Ltd v Maroochy Shire Council and Birch Carrol and Coyle and Ors [2000] QPELR 216.

[31] Thomco (No 2087) Pty Ltd v Noosa Shire Council (supra).

[32]  ie. even if it were assumed that TAPS Policy rates were otherwise required to be provided.

[33]  Ex 7 paras 67, 68(vii).

[34]  Ex 7 para 68(viii).

[35]  the operation of the development is dealt with further, from a traffic engineering perspective later.

[36]  Ex 7 para 70(a).

[37]  Ex 7 para 70(b).

[38]  Ex 8 para 13.

[39]  Ex 8 para 17.

[40]  which include detached houses as well as multiple dwellings.

[41]  Ex 8 para 20.

[42]  Ex 8 para 21.

[43]  Chalk Street and Bridge Street.

[44]  Ex 8 para 22.

[45]  Ex 8 para 12(c).

[46] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

[47]  Ex 8 para 23.

[48]  T2-53 ll 33-40, albeit that he contended that the subject rates, not being the current rates, should not be locked in.

[49]  see explanatory notes to s 49 of PA.

[50]  s 53 of PA.

[51]  although the material lodged in support of the application erroneously quoted the then table 14 rates.

[52]  I have ignored a reference to political considerations.

Close

Editorial Notes

  • Published Case Name:

    Dunland Property Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Dunland Property Pty Ltd v Brisbane City Council

  • MNC:

    [2021] QPEC 34

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    14 Jul 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Carillon Developments Pty Ltd v Maroochy Shire Council & Ors (2000) QPELR 216
2 citations
Jump To
Cite 1 - (2000) QPELR 216
Cite 2 - (2000) QPELR 216
Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579
2 citations
Jump To
Cite 1 - [2014] QPELR 579
Cite 2 - [2014] QPELR 579
Ferreyra & Ors v Brisbane City Council & Anor (2016) QPELR 334
2 citations
Jump To
Cite 1 - (2016) QPELR 334
Cite 2 - (2016) QPELR 334
Harris v Scenic Rim Regional Council [2014] QPELR 324
2 citations
Jump To
Cite 1 - [2014] QPELR 324
Cite 2 - [2014] QPELR 324
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Thomco (No 2087) Pty Ltd v Noosa Shire Council [2020] QPELR 1113
2 citations
Jump To
Cite 1 - [2020] QPELR 1113
Cite 2 - [2020] QPELR 1113

Cases Citing

Case NameFull CitationFrequency
Kirra Developments Pty Ltd v Council of the City of Gold Coast [2022] QPEC 382 citations
1

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