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North Harbour Holdings Pty Ltd v Moreton Bay Regional Council QPEC 61
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
North Harbour Holdings Pty Ltd v Moreton Bay Regional Council  QPEC 61
NORTH HARBOUR HOLDINGS PTY LTD
MORETON BAY REGIONAL COUNCIL
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING
Planning and Environment Court
Planning and Environment Court, Brisbane
14 November 2022
14 November 2022
The appeal be heard and determined on the basis of the changed development application.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – AMENDMENT TO PROPOSAL – where the development application is one for preliminary approval and requested variations to the planning scheme to pave the way for a mixed use residential, business, recreation and open space development over an area in excess of 400 hectares at Morayfield – where the appellant proposed to vary its development application so that the variations sought are much more limited such that future development applications will be governed much more by the planning scheme and there is to be some change to building height in a special use area and to the spatial distribution of the uses within the site – where the Court cannot consider a change to a development application unless the change is a ‘minor change’ as defined in schedule 2 of the Planning Act 2016 (Qld) – whether the proposed change is a ‘minor change’.
Planning Act 2016 (Qld)
D Gore KC, J Ware and K Wylie for the Applicant.
K Buckley for the Respondent.
D O'Brien KC for the Co-Respondent.
McBride Legal for the Applicant.
Council Legal for the Respondent.
HopgoodGanim for the Co-Respondent.
- This is an application by the applicant-appellant for orders, permitting it to proceed in the appeal on the basis of an amended application, on the basis that it is only a minor change within the meaning of that expression for the purposes of the Planning Act. The only part of the definition of minor change which needs to be considered is whether the change results in a substantially different development. The change in question does not trigger any other part of the definition.
- The application is one which seeks a preliminary approval and requests variations to the planning scheme. It is designed to pave the way for a mixed use residential, business, recreation and open space development over an area in excess of 400 hectares. It is intended to form part of the larger North Harbour development which comprises approximately 800 hectares at Morayfield, east of the Bruce Highway.
- It is relevant, in considering the question of whether the proposed changes are minor, that the Court is dealing with an application which is at a relatively high level of generality, in the sense that it is only for a preliminary approval and, as such, does not descend to the detail-built form. It is, at this stage, very much a matter of deciding the broad land use over a large area and setting the ground rules, as it were, for future applications.
- There have been a deal of discussions and negotiations amongst the parties to the litigation and, at least as between the appellant and the respondent, an accord has been reached on the basis of the proposed amendments, reflecting that the council supports the amendments as being within the scope of a minor change and is in support of the appellant’s proposal if it is changed in that way. The co-respondent has not yet reached that point, but does not oppose the orders sought today by the appellant. It did not make any submission one way or the other in relation to whether the Court should permit the appellant to proceed on the basis of the amended proposal.
- One of the features of the amendments is changes to the scope of the variations that are now sought in respect of the planning scheme. In short, the appellant is now content to amend its application so that the variations sought are much more limited and future development applications will be governed much more by the planning scheme. As a consequence, a number of areas on the original plan have been renamed to reflect the corresponding name of the applicable zone under the planning scheme.
- There has been removal of a proposed area plan code such that, instead, future development applications will be assessed against codes called up in the tables of assessment in the planning scheme. There has been the removal of the extensive material change of use tables of assessment in the proposed variations, such that now the tables of assessment set out in the planning scheme, subject to one modification, will guide future development if the application is approved. Similarly, there has been the removal of references to integration plans, subdivision plans, design guidelines and development plans that may have been delivered as part of future development applications, had they been guided by the more extensive variations previously sought.
- Those variations may be great in terms of number, but it is difficult to see that they could be objectionable or, more to the point, considered to be more than minor in their impact for the purposes of the Planning Act. It simply means that the application, insofar as it seeks variations to the planning scheme, has become less ambitious than it previously was, and so is more in tune with what expectations would otherwise have been in accordance with the planning scheme provisions.
- In addition to those changes, there have been a number of minor clarifications, corrections, typographical errors and consequential changes which I need not delay upon. There has been one change to permit an increased building height in a special use area which is intended to cater for a private school. The increased height is only from two to four storeys and is only a possibility, because the development application which would be required in order to facilitate the school would be subject to a code assessment in any event. Ms Vigar, the town planning consultant engaged by the appellant, expressed the opinion that the increase in height to 12 metres is not a significant change and is consistent with the height limit in the general neighbourhood precinct under the respondent’s town planning scheme.
- The changes otherwise are to the spatial distribution of the various land use elements within the site. The open space area is effectively unchanged, save that its name has been changed to the sport and recreation area, which reflects the corresponding zone under the respondent’s planning scheme. Reference to the provisions which apply to the open space area in the original application shows that its intent was consistent with what is intended in the sport and recreation zone.
- The most change, in terms of spatial distribution, has been the relative decrease of the land given over to residential development, which is to be renamed from the Residential North Precinct to the Next Generation Neighbourhood, again to reflect the appropriate description under the planning scheme, and the corresponding increase of land allocated to the mixed industry and business precinct (previously the North East Business Park). That has, in turn, led to the relocation of what was previously called a Neighbourhood Hub, which is now called a Local Centre, which still sits at the interface between the residential development and the mixed industry and business development, but with the change in the location of that boundary, has shifted eastwards and, it would seem, reduced in area somewhat. I will return to those changes in a minute.
- There were some smaller changes. A heritage park which has now already been built, has been removed from the plan. Some sporting fields designations have been removed. That is not because there is a positive intention not to provide them, but rather, because their development within the sport and recreation area will be a matter now for subsequent applications in accordance with the planning scheme.
- One of the community use precincts that was formerly intended to provide for a public school has disappeared. That is because the State has identified a site beyond the subject site for that school and so it is no longer necessary or appropriate to provide for that facility within the subject site. There was another community use precinct formerly noted within the residential area which was to provide for a sports club. The removal of that designation is, again, not intended to be an indication that such a facility cannot be provided, but is part of allowing for the future location and development of any such facility to be a matter of application under the planning scheme, rather than a designation at this stage.
- Returning, then, to the distribution of the uses particularly as between what I will refer to, in shorthand form, as the residential mixed industry and business and the local centre. The expert evidence before me, both from the town planners, Ms Vigar and Mr Buckley, the latter being the town planner engaged by the respondent, and by the economist, Mr Duane, who was engaged by the appellant, is to the effect that the changes to the spatial distribution will not have any substantial effect on the ability of the development, as a whole, to operate as intended as a mixed use development with the elements that have been identified. Mr Duane in particular, says that the relocation of the local centre will have no adverse consequence of an economic nature and will not result in any material disadvantage.
- In relation to particular impacts which might result from some change to the spatial distribution of uses within the site, that is, of course, somewhat difficult to be precise about when one is dealing with an application for a preliminary approval, rather than an application which is for a specific development in a specific form. In order to ensure that there is some level of certainty about the levels of development which might ensue from an approval and therefore the impacts which might flow, the appellant and the council have reached an agreement in relation to a framework for an infrastructure agreement which sets out land use caps for a range of specific land uses within the site.
- The experts who have looked at the question of the impacts of the minor change have had regard to those caps in looking at the likely effect of the change of spatial distribution of land use components. The appellant is prepared to be bound by those land use caps and is prepared to undertake, as a condition of being able to pursue its amended application proceedings, that it will submit to a condition requiring those land use caps on any approval. That is the case, is it not, Mr Gore?
- MR GORE: Yes, your Honour, with the one variation relating to the MYBA limit. Mr Fraser’s most recent affidavit points out that the cap for MYBA under the framework document is higher than the cap that is in with our outline or our submissions, and we are accepting the lower cap as a condition.
- HIS HONOUR: Yes. Thank you for that clarification. Bearing that in mind, I will deal briefly with the evidence that is before me. Mr Natoli’s evidence is that the underlying trunk infrastructure requirements for the site remain the same, regardless of whether the land is used for industrial or residential purposes. Consequently, the changes that are proposed remain consistent with the council’s planning scheme and the existing approvals for the site from an infrastructure perspective. Mr Butcher, an expert in visual amenity, says that the proposed changes are not significant but, in any event, are ameliorative in nature for reasons set out in his affidavit. Dr Johnson says that, from an hydraulics engineering flooding and drainage perspective, the changes are not significant.
- Mr Forbes is of the view that the proposed change will not result in any net change to offsite lighting amenity and that, whilst there will be some lighting changes to individual sites within the development to align with the revised reconfiguration, he does not consider the overall changes to be significant from a lighting perspective.
- Mr Byers is of the view that any change in noise impacts of sensitive uses beyond the site boundaries would be consistent with those for the original plan and that he does not consider the proposed changes would introduce any impacts or increase the severity of known impacts because the same land uses are retained, albeit in different locations and sizes. Because of the changes in location and the use of the arterial road as a buffer, the proposed changes are, in his view, likely to decrease the severity of known noise and air impact.
- It seems to me, when one has regard to that expert evidence, and to the nature of the application and the scale of the development, that the changes, when looked at broadly and fairly, fall within the scope of a minor change because they do not result in a substantially different development. I am prepared to make the orders sought.
- Published Case Name:
North Harbour Holdings Pty Ltd v Moreton Bay Regional Council
- Shortened Case Name:
North Harbour Holdings Pty Ltd v Moreton Bay Regional Council
 QPEC 61
14 Nov 2022