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Roseingrave v Brisbane City Council[2021] QPEC 76

Roseingrave v Brisbane City Council[2021] QPEC 76

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Roseingrave & Anor v Brisbane City Council & Anor [2021] QPEC 76

PARTIES:

JEROMA JOSEPH ROSEINGRAVE AND NANCY STELLA CASTILLO
(applicants/appellants)

v

BRISBANE CITY COUNCIL
(respondent)

and

CHIEF EXECUTIVE OF THE DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING

(co-respondent by election)

FILE NO/S:

601 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

2 December 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2021

JUDGE:

Rackemann DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where the development application was for a five-lot subdivision gaining access to Old Northern Road via a new access road internal to the site – where the development application explained the proposed road access was intended to be temporary on the basis of alternative access if and when the adjoining lot to the north is developed – where the applicant seeks to change the application so that the subdivision occurs in stages – where stage 2 depends on the future road access – whether the change to the development application is a minor change

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) s 46(3)

COUNSEL:

A Skoien for the applicants/appellants

N Loos for the respondent

R Jones (sol) for the co-respondent

SOLICITORS:

O'Shea Lawyers for the applicants/appellants

City Legal – Brisbane City Council for the respondent

McCullough Robertson Lawyers for the co-respondent

  1. [1]
    This is an application for orders which would facilitate the appeal proceeding on the basis of a change to the development application the subject of the appeal. That development application is one for a development permit for the reconfiguration of one lot in five, in respect of land located at 155 Old Northern Road, Everton Park. The application is not actively opposed by the respondent or co-respondent by election, but nor is it supported by those parties. And each of those parties addressed the court with respect to matters which the Court might bear in mind in deciding whether to accede to the appellant’s application.
  1. [2]
    The proposal, as refused by the council, was for a five-lot subdivision gaining access to Old Northern Road via a new access road internal to the site along most of the site’s northern boundary. At the access point on to Old Northern Road, there was proposed to be what was referred to as a temporary road access and a pedestrian pathway. The application to the council was accompanied by a structure plan. Such a document does not constitute any part of an approval for land beyond the site. It does not authorise any work. It primarily identifies, relevantly for present purposes, how the subject site could fit into future development of the surrounding area without compromising the effect of any future development of those lands.
  1. [3]
    The land to the immediate north of the subject site is a large parcel which is not yet developed at any urban density. To the north of it lies Keona Road. The structure plan submitted with the subject proposal showed indicatively a future road connection from the proposed internal road on the subject site to Keona Road across the land to the north of the subject site. Whether such a road connection is ever built is something which, at this stage, is unknown, as are the development intentions of the owners of the land to the immediate north of the subject site.
  1. [4]
    The material lodged in support of the development application explained the sense in which the proposed road access to Old Northern Road was intended to be “temporary”. In that regard, the intention was that the road access, which was to be the subject of an easement, would be terminated if and when the adjoining lot to the north was developed in a way that extended access from the Keona Road to the subject site. The current proposal then is one in which the proposed five lots rely and may continue in perpetuity to rely, on the Old Northern Road access, but where some provision is made for the possibility of an alternative access at some point in the future.
  1. [5]
    The proposed changes extend to a number of details which are set out more fully in exhibit MC4. It is unnecessary for me to go into the detail of all of them. None are of any real concern, save for the proposed staging and its interaction with access. The proposed change, in that regard, is to seek a development permit for the subdivision of the land in stages. Stage 1 would feature three lots, one of which is essentially a balance lot, which would be further subdivided into three lots in stage 2. Stage 1 would rely on access to Old Northern Road at least until and unless a northern access became available. Stage 2, however, would occur if and when a future access road to Keona Road was provided to the subject site, enabling the easement access, to Old Northern Road, to be terminated and for all five lots namely, the lots created as part of stage 1 and the new lots by virtue of stage 2, to obtain access solely through the future northern access. Although the changed plans show a “potential access road” in a location which is different from the location shown on the structure plan lodged in support of the existing proposal, I was informed, in the course of the hearing, that stage 2 is to be understood as being able to proceed irrespective of where the future northern access is provided, so long as it provides a connection to the subject development. I note that the changes include a new structure plan which shows a couple of “proposed access” locations.
  1. [6]
    It was submitted by counsel for the appellant that, effectively, this results in little change of any consequence, because if the application had been changed to simply limit it to stage 1, then the Court would likely find it within the bounds of a minor change, and all stage 2 does is introduce the prospect of some additional lots in the event that a northern access is provided at some point in the future. Further, he pointed to cases which dealt with changes to development approvals in relation to staged development to suggest that there would be little consequence of any concern if, in the end of the day, the northern access was not provided such that stage 2 did not proceed.
  1. [7]
    I am mindful that, pursuant to section 46(3) of the Planning and Environment Court Act 2016 (Qld), the Court cannot consider a change to the development application unless the change is only a minor change to the application.  The expression “minor change” is defined by reference to the definition in the Planning Act, which in turn references the concept of substantially different development.  It should also be noted that whilst section 46(3) prohibits the Court from considering a change unless it is only a minor change, the section does not require the Court to consider a change so long as it is a minor change.
  1. [8]
    The material filed in support of the application included one from a town planner, who endeavoured to make the point that the proposed change does not alter the ability of the proposal to operate as intended, because it will remain a small subdivision with permanent access ultimately achieved across land to the north to Keona Road. That involves supposition.
  1. [9]
    The key difference between the existing proposal and the proposed changed proposal is that, in the existing proposal, the five lots are proposed to be developed in one stage and rely on access to Old Northern Road, an existing road to which the subject site has direct frontage. The proposal acknowledges and takes account of the prospect that in the future, there might be some northern access road developed as part of future development of the land to the north, but it does not rely upon it.
  1. [10]
    The changed proposal, insofar as stage 2 is concerned, relies on a northern access, an access which does not exist, for which there is presently no firm plan or approval, and in respect of which its future location is unknown. In short, the change removes from what is now to be stage 2 its only existing means of access. It is true that the proposal contemplates that stage 2 would not be developed unless and until an access was created, but what is sought is to change a development application such that a development permit is now sought for the reconfiguration of land, being stage 2, in respect of which no access can be identified with any certainty.
  1. [11]
    The proposal has gone from an unstaged development with existing access, but with consideration being given to potential future access to a staged proposal where approval is now sought by way of a development permit for the reconfiguration of the land which is wholly reliant upon access which does not exist and is not planned. It seems to me that is productive of a substantial difference and is not a change which I would be minded to permit be made to the development application in the context of the appeal. Of course, the appellant is free to make a fresh application if it wishes in whatever terms it is so advised. The application is dismissed.
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Editorial Notes

  • Published Case Name:

    Roseingrave & Anor v Brisbane City Council & Anor

  • Shortened Case Name:

    Roseingrave v Brisbane City Council

  • MNC:

    [2021] QPEC 76

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    02 Dec 2021

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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