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- Unreported Judgment
Paige Pty Ltd v Redland City Council QPEC 51
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Paige Pty Ltd v Redland City Council  QPEC 51
PAIGE PTY LTD (ACN 068 405 649)
REDLAND CITY COUNCIL
2893 of 2020
Planning and Environment
Application in pending proceeding
Planning and Environment Court, Brisbane
16 September 2021 (ex-tempore)
17 August and 16 September 2021
The application in pending proceeding seeking to change the development application is dismissed
PLANNING AND ENVIRONMENT – APPLICATION – Application in pending proceeding – application for minor change – where the development application seeks a development permit for reconfiguration of lots – where, at the time of the decision, the development application provides access to Bunker Road – where the proposed change includes removal of vehicular access to Bunker Road – whether the proposed change is a minor change
Planning Act 2016 (Qld), Sch 2
Planning and Environment Court Act 2016 (Qld), s 43, s 46
W Macintosh for the Appellant
A Hellewell for the Respondent
HWL Ebsworth for the Appellant
Redland City Council Legal Services Department for the Respondent
- The Appellant seeks an order of the Court permitting a change to its development application the subject of the appeal on the basis that the change is only a minor change.
- The appeal relates to a deemed refusal by Redland City Council (“the Council”) of a development application seeking a development permit for reconfiguration of one lot into 23 lots and road (“the proposed development”). The development application relates to land located at 152 – 156 Bunker Road, Victoria Point.
- The Council does not oppose this application for a minor change. It has not provided the Court with any assistance with respect to the question of whether the change is a minor change. That is not a criticism of Counsel engaged by the Council, being Ms Whitehouse on the first occasion, and Ms Hellewell on this occasion. The lack of assistance reflects the instructions provided by the Council itself.
- Pursuant to s 43 of the Planning and Environment Court Act 2016 (Qld), the appeal is to be conducted by way of hearing anew. Pursuant to s 46(3) of the Planning and Environment Court Act 2016, the Court cannot consider a change to the development application unless the change is only a minor change to the application.
- The term “minor change” is defined in schedule 2 of the Planning Act 2016 (Qld). That section provides that a minor change for a development application is a change that:
- “(i)does not result in substantially different development; and
- (ii)if the application, including the change, were made when the change is made—would not cause—
- (A)the inclusion of prohibited development in the application; or
- (B)referral to a referral agency if there were no referral agencies for the development application; or
- (C)referral to extra referral agencies; or
- (D)a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or
- (E)public notification if public notification was not required for the development application;”
- Here, the real issue is whether the proposed change would result in substantially different development.
- The legislation does not define “substantially different development”. Under s 68(1) of the Planning Act 2016, the Minister has made the Development Assessment Rules. Schedule 1 of those rules assists in the construction of the phrase “substantially different development”. Although the considerations set out in schedule 1 to the Development Assessment Rules provide a useful guide, they are not determinative. Whether a proposed change would result in substantially different development depends on the individual circumstances of the development.
What change is sought to be made to the development application?
- The Appellant seeks to make the following changes to the development application:
- (a)a reduction in the number of residential lots from 23 to 19;
- (b)an increase in the minimum lot size from 368 square metres to 403 square metres;
- (c)an increase in the maximum lot size from 800 square metres to 1,785 square metres;
- (d)removal of the one proposed dual occupancy lot;
- (e)dedication of proposed Lots 901 and 902 to the Council for the accommodation of combined bioretention/detention basins and the protection of koala habitat trees, replacing proposed Lots 902 and 903;
- (f)an increase of 2,027 square metres of land area to be dedicated for park, stormwater treatment and protection of koala habitat trees, including a 129 square metres decrease in the area of land to be dedicated as park from 1.53 hectares (Lot 901) to 1.52 hectares (Lot 900), and an increase in the area of land to be dedicated for the accommodation of bioretention/detention basins and the protection of koala habitat trees from 1,185 square metres (Lots 902 and 903) to 3,341 square metres (Lots 901 and 902);
- (g)the retention of koala habitat trees along the western boundary, in addition to those within the park lot;
- (h)the provision of koala exclusion fencing at the interface between Lots 1 to 4 and Lot 902, and between Lots 16 to 19 and Lot 900 and 901, and along the eastern edge of the vegetation covenant area on Lot 19;
- (i)removal of the temporary bushfire protection area over the former proposed Lot 4, and the introduction of bushfire setbacks and/or vegetation covenants to proposed Lots 10 to 19, consistent with the recommendations of the Appellant’s bushfire expert;
- (j)identification of optional build to boundary locations on proposed Lots 12 to 14 and indication of typical building envelopes, driveways, and bin pads for all lots;
- (k)identification of the proposed conceptual earthworks across the site, reducing the proposed extent of cut and fill, as well as identifying the location and height of retaining walls, with the majority of retaining walls stepped where exceeding 1.5 metres in height;
- (l)provision of a pathway to Bunker Road for pedestrian, cyclist and emergency access;
- (m)provision of a two metre land dedication along the subject land’s frontage to Bunker Road;
- (n)reconfiguration of the internal road network of the proposed development, including changes in road widths from a maximum width of 15 metres to 14.5 metres and a minimum width of 12 metres to 10.5 metres; and
- (o)removal of temporary access to Bunker Road, and provision for roads to be constructed to provide two points of access to the adjoining land to the west, being Lot 22 on RP86773, and one point of access to the adjoining land to the east, being Lot 24 on RP86773.
- It is convenient to address the last of the proposed changes first, as it is the most troubling. As was explained by the Appellant’s town planner, Ms Natalie Rayment, the Appellant seeks to change the access arrangements so that access will now be achieved solely from the adjoining land, rather than from Bunker Road. There will only be emergency and pedestrian access to Bunker Road.
Will the proposed change result in a substantially different development?
- In an affidavit sworn on 6 August 2021, Ms Rayment opines that the proposed changes, including the change to the access arrangements, will not result in substantially different development. Her opinion is premised on three observations.
- First, Ms Rayment says the proposed changes will not result in any new land being the subject of the development application. It seems apparent from this observation and the affidavit material that access via the adjoining land is not facilitated by including that land, or even part of that land, in the development application. There is no evidence of an easement over the adjoining land.
- Second, Ms Rayment opines that the proposed changes will not change the ability of the proposed development to operate as intended. She says the proposed development will continue to operate as a residential estate and will be able to be appropriately serviced with all necessary infrastructure, with a road connection provided by way of the adjoining development. In that respect, she notes that the temporary Bunker Road access that is proposed to be removed as part of the changes sought was only introduced in response to a referral agency information request. She says it was introduced when there was little certainty as to whether access could be provided through the adjoining development. She also says it was to be removed as soon as such access became available. She says the removal of the Bunker Road temporary access returns the proposal for access to that originally proposed.
- It is apparent from the material that the access arrangements originally proposed were changed prior to the decision stage. It is the application as it stood at the decision stage to which I must compare the now proposed changes.
- Third, Ms Rayment opines that the proposed changes will not remove a component of the proposed development that is integral to its operation. In explaining the basis of that opinion, Ms Rayment referred only to the proposed removal of the dual occupancy lot.
- The proposed change to the access arrangements was also addressed by Mr Adam Pekol, the traffic engineer retained by the Appellant. Like Ms Rayment, Mr Pekol opines that the proposed changes will not result in a substantially different development from a traffic engineering perspective. His opinion is premised on two observations.
- First, Mr Pekol opines that the proposed changes will not change the ability of the proposed development to operate as intended from a traffic engineering perspective. In that respect, he says that the proposed access through the adjoining development will be sufficient to service the proposed development. He draws comfort from the fact that the temporary access was only to operate until a permanent access was provided through the adjoining development.
- Second, Mr Pekol opines that the proposed changes will not remove any component of the proposed development that is integral to its operation from a traffic engineering perspective. In this respect, he notes that the temporary access from Bunker Road was to be removed as soon as access through the adjoining development was available.
- The evidence of Ms Rayment and Mr Pekol was not challenged. Despite that, I do not accept their evidence. The opinions expressed by each of them ignore that the proposed change to the access arrangements involves removal of the only lawful means of access to the lots proposed to be created. Their opinions are premised on an assumption that the proposed development will be able to achieve access through an adjoining development. That has not been established on the evidence.
- As I have already mentioned, the Appellant seeks to remove the temporary access to Bunker Road. In its place, the Appellant proposes to construct roads internal to the subject land that provide two points of access to the adjoining land to the west, being Lot 22 on RP86773, and one point of access to the east, being Lot 24 on RP86773.
- The development application was not made over Lots 22 and 24 on RP86773. There is no evidence that the owners of Lot 22 and Lot 24 on RP86773 consent to providing access over their land. There is no obligation for them to do so.
- Ms Rayment notes that Lot 22 on RP86773 is subject to a development permit for reconfiguration of eight lots into 176 lots and new road, granted by this Court on 23 March 2021. Condition 12 of that approval states, in part:
“12. Lot 23 on RP86773 Access & Services
Provide potential future access & services corridor to lot 23 on RP86773 in accordance with the following:
- (a)Land is to be transferred to Council generally on the alignment shown as ‘Potential Future Access Corridor’ that is 10.5m in width (so as to facilitate the maximum retention of trees in the event of a future approval for the construction by others of a road pavement 6m in width, with sufficient verge widths to accommodate necessary services, in the event of access being required for Lot 23 on RP86773 via this corridor);
- (b)The intent of the transfer referred to in 12(a) above is to provide for the future dedication of a road connection through to Lot 23 on RP86773 generally in accordance with ‘Option 1’ as shown on the approved plan ‘Option 1 – WM & JW’, Drawing No. 2019- 100- PLC Dated 30 November 2020 (with the removal of the vegetation necessary to facilitate the connection generally as shown on the approved plan) as part of any approval granted in Brisbane PE Appeal 2893 or if otherwise reasonably required for any other lawful development or use of Lot 23 on RP 86773;
- (c)the transfer referred to in 12(a) above is to be achieved at the time of the creation of proposed Lot 157 shown on approved plan Stage 1 - RAL Design, Drawing No. 0715- 0859-02-DR11, rev 01 Dated 19 March 2021 and that part of the land lying to the east of New Road 1 that is to be dedicated as conservation in accordance with condition 11(b)”.
- Ms Rayment opines that it follows from condition 12 that the road corridor will be dedicated to the Council as part of stage 1.1 of the adjoining development, being the very first stage.
- The existence of that condition does not persuade me that the removal of the only lawful means of access for the 19 proposed lots does not result in a substantially different development. The existence of the condition does not provide a lawful point of access. There is no obligation on the owner of Lot 22 on RP86773 to proceed with the development as currently approved.
- There are many issues that could arise, each of which would result in the prospect of the subject development being left with no lawful means of access. For example, the owner of Lot 22 may decide not to proceed with the development at all. Another possibility is that the owner of Lot 22 may successfully apply to change their development approval to reposition the alignment of the potential future road providing access to Lot 23. Similarly, the development may proceed in accordance with condition 12, but the land transferred to the Council may not match the alignment proposed in the development the subject of this appeal because condition 12 only requires that the land to be transferred be “generally” on the alignment shown on the plan. These are all possible scenarios that could result in the 19 proposed lots having no lawful means of access.
- Until there is a dedicated road through the adjoining land connecting at the boundary of the subject land in a location corresponding to that shown on the proposed plans, the change sought is one that involves removal of the only lawful point of access.
- Given that change alone results in a substantially different development, there is no need for me to consider the other proposed changes. I am not satisfied that the proposed changes sought involve only a minor change and as such, the application in pending proceeding is dismissed.
- Published Case Name:
Paige Pty Ltd v Redland City Council
- Shortened Case Name:
Paige Pty Ltd v Redland City Council
 QPEC 51
16 Sep 2021