Gillespie v Scenic Rim Regional Council
[2023] QPEC 22
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- Gillespie v Scenic Rim Regional Council[2023] QPEC 22
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Gillespie v Scenic Rim Regional Council[2023] QPEC 22
Gillespie v Scenic Rim Regional Council[2023] QPEC 22
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Gillespie v Scenic Rim Regional Council [2023] QPEC 22 |
PARTIES: | ROSEANNA GILLESPIE AS TRUSTEE FOR RSG INVESTMENT TRUST (Appellant) v SCENIC RIM REGIONAL COUNCIL (Respondent) & TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC. & 15 ORS (Second Co-Respondent by Election and 15 Others) |
FILE NO/S: | 1578/2022 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 14 April 2023 (Ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 April 2023 |
JUDGE: | Rackemann DCJ |
ORDER: | The proposed changes to the development application the subject of the appeal (Development Application) as set out in paragraph 7 of the Application in Pending Proceeding filed 1 March 2023 (Court Document 151), and the affidavits of Leo John Mewing filed 1 March 2023 (Court document 157) and 2 March 2023 (Court Document 158) respectively (Proposed Changes) are a “minor change”, as that term is defined in Schedule 2 to the Planning Act 2016 (Qld), and for the purposes of section 46(3) of the Planning and Environment Court Act 2016 (Qld). |
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – AMENDMENT TO PROPOSAL – where the development application is one for a development permit for a material change of use for nature-based tourism comprising accommodation, an onsen bathhouse and manager’s residence – where the appellant made an application in a pending proceeding to make a change to the development application the subject of the appeal – 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’. |
COUNSEL: | JG Lyons and WDJ Macintosh for the Appellant. E Kay for the Respondent. |
SOLICITORS: | HWL Ebsworth Lawyers for the Appellant. King & Company Solicitors for the Respondent. |
- [1]This is an application in a pending proceeding to make a change to the development application the subject of the appeal. The development application is one for a development permit for a material change of use for nature-based tourism comprising accommodation, an onsen bathhouse and manager’s residence. The subject land is located adjacent to the western escarpment of Mount Tamborine.
- [2]The Court cannot consider a change to a development application unless the change is a minor change. A minor change is defined in schedule 2 of the Planning Act to mean a change that, for a development application:
- (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 it, by having regard to, a matter, other than the matter the referral agency must have assessed the application against or have regard to, when the application was made; or
- (e)public notification was not required for the development application.
- (i)
- [3]Ultimately, it was common ground that the change does not offend any of the matters in subparagraph (ii) above. The remaining question is whether it would result in substantially different development. That term is not defined, but it is well settled, that the Court conducts a broad and fair assessment of the proposed change, having regard not only to the quantum of any change, but also to its likely effects and impacts.
- [4]The changes to the proposal are depicted in new proposal plans and may be summarised as follows:
- (a)repositioning the proposed onsen building by moving it closer to both the front boundary and the existing lodge reception building (with a resultant increase in finished floor level as a result of it being moved up the slope);
- (b)internal rearrangements within the onsen building and the addition of a door to its sub-floor area;
- (c)repositioning of each of the proposed villas, with villas 1, 2 and 3 moving slightly closer to the front boundary and villas 4 and 5 moving slightly further away from that boundary (with a resultant increase in finished floor levels in villas 1 and 4 as a result of their changed position on the slope);
- (d)amendment of the vegetation line further up the slope, which, together with that movement of the villas outside tree protection zones, sees the proposed development result in a loss of four existing trees rather than between 12 to 18 trees as was the case under the initial proposal;
- (e)a change to water storage for fire fighting by replacing the existing 20,000-litre tank beside the lodge reception with one 10,000-litre tank by the southern car park and two 10,000-litre tanks by the northern car park;
- (f)a regrading of the access to the northern car park; as well as,
- (g)change to the size and layout of the southern car park, comprising a changed car park layout, widening of the access driveway, clarification of grading, reduction of width, increase in the size of parallel parking spaces and inclusion of an SRV service vehicle bay;
- (h)the inclusion of an asset protection zone (APZ) for bushfire hazard reduction purposes; and
- (i)changes to landscaping, including the planting of bushfire resistant and resilient species to better screen the proposed development.
- (a)
- [5]Whilst, as can be seen, there are a number of elements to the proposed change, it must be said that, when looked at broadly and fairly, the proposal, in its modified form, comprises the same uses and elements distributed generally in similar ways across the subject site, as was the case for the original proposal.
- [6]In order to assist the Court in understanding the effect and possible impacts of the changes, the applicant Appellant obtained affidavit material from a range of experts. One of those experts was Mr Holland, a well known traffic engineer. For the reasons set out in his affidavit, he considered that the proposed changes would not change the ability of the proposed development to operate as intended from a traffic perspective, nor did he consider that the proposed changes would significantly impact traffic flow or the traffic network. In particular, he regarded the northern car park and the changed layout of the southern car park to each provide a well resolved and appropriate car parking layout to support the safe and efficient flow of traffic to and from the subject site and immediately surrounding the proposed development.
- [7]He regarded the widening of the access driveway to the southern car park as providing a safer and more convenient access to and from the main western road, and he saw the accommodation for an SRV, which he considered to be an appropriately sized vehicle for serving of the subject site, as being compliant with the relevant benchmark in the planning scheme. Further, he regarded the northern car park and the changed layout of the southern car park as marginally reducing internal or external traffic impacts. He also saw benefit in the widening of the driveway to the southern car park, and considered that the inclusion of the SRV service bay was unlikely to cause any vehicle conflict points. He considered the reduction in aisle width of the southern car park left the proposal in a position where it was still compliant with the applicable Australian standard. He confirmed the acceptability and workability of the amended southern car park layout.
- [8]The Appellant also obtained an affidavit from Dr Watson, a well-known ecologist. He considered that the proposal would not change the ability for the proposal to operate as a nature-based tourism development, because the removal of native vegetation is limited to the car parking areas and the rearrangement of the villas and onsen building, now results in no native vegetation being removed to facilitate their establishment. He also saw the proposed changes as resulting in a decrease in the ecological impacts of the proposed development because they contemplate the removal of four trees instead of the 12 to 18 trees that would have been removed under the previous proposal. Further, he regarded the trees to be removed as of lesser ecological value.
- [9]The Appellant also obtained evidence from a bushfire management expert, Mr Janssen. He considered that the proposed changes did not introduce any new bushfire impacts or increase the severity of any known impacts. Rather, he regarded them as ameliorative in nature.
- [10]He saw the movement of the villas and the onsen building away from the line of vegetation to the west of the subject site, as marginally decreasing the potential of radiant heat exposure to those buildings. He saw the installation of firefighting tanks adjacent to the northern car park as improving the accessibility to water supply for firefighting and allowing for a better defence of the villas in the event of a bushfire scenario. He saw the firefighting tank that was remaining adjacent to the southern car park as being capable of ensuring an adequate supply of water for firefighting in respect of the onsen building, lodge reception and manager’s residence. He saw the introduction of the AP zone as marginally decreasing bushfire risk and the planting of bushfire resistant species as reducing the bushfire risk associated with the proposed landscaping.
- [11]The Appellant also obtained evidence from Dr Johnson, a well-known engineer, who concluded that, in overall terms, the proposed changes would see the proposed development continuing to achieve acceptable civil engineering outcomes in relation to on site effluent treatment, irrigation, landslip and the provision of adequate water for firefighting. He saw the changes to the water storage for firefighting as more than compensating for the removal of the tank closest to the southern car park. He saw the changes as improving the development of performance in respect of firefighting and water quality management.
- [12]The Appellant also obtained evidence from Dr McGowan, a well-known visual amenity expert. He did not see the proposed changes as dramatically changing the built form in terms of scale, bulk or appearance. In that regard, his evidence was that the change of location of the onsen building and villas would largely be imperceptible from the street as a result of both proposed landscaping and the more deliberate retention of native vegetation. He also referred to the way in which the scale, bulk and appearance of the villas, onsen building and lodge reception would be broken up in terms of appearance of the built form, because the buildings are a modest scale, are dispersed across the site, and are well-integrated with the existing vegetation on the site, and appropriately integrated into the landscape as a result of proposed landscaping and retention of native vegetation.
- [13]Further, whilst the car parks remain generally located in the same parts of the subject land, and generally of the same size, the proposed changes include the provision of fencing and landscaping to assist with screening the car parks such that they do not result in any meaningful increase in adverse visual impacts. Further, there is an increased setback from the northern-most villa from the adjoining lot to the north and the northern car park, reducing the scale, bulk and appearance of the proposed development. Overall, he saw the proposed changes, to the extent that they can be perceived from the street when viewing the subject site and when viewed together as resulting in an overall reduction in the likely visibility of the proposed form.
- [14]The Appellant also obtained evidence from Mr Newing, a town planner. He observed, as I have already observed, that the changes do not change the nature of the development proposal or the general distribution, form and design of the buildings and features of the development across the site and went on to express his opinion that the changes do not lead to a substantially different development. I should say, however, that my ultimate conclusion in relation to that depends upon my assessment of that, assisted, in particular, by the evidence of the other experts, rather than upon the opinion of the town planner.
- [15]Having regard to what I have already observed about the nature of the changes, and bearing in mind the evidence of the experts, it would appear that the changed proposal does not lead to a substantially different development, and that is the view of the Respondent. The position of the co-respondents by election was initially not so clear. It appeared, from correspondence, that there was some blurring of the distinction between whether the proposed change was more than a minor change and whether the proposal, as changed, was satisfactory from their perspective.
- [16]Accordingly, when the matter came before Judge Williamson on the 17th of March, he ordered the co-respondents by election to notify the parties, in writing, as to why they contend the proposed changes will result in a substantially different development. Following that order, material was received from each of the parties who appear here today, either personally or by agent, with the exception of Oliver Dale. When Mr Dale appeared this morning, he clarified that he simply wished to refer to the email from his wife that was sent prior to Judge Williamson’s order. That email acknowledged that, on the face of it, the changes sought:
...technically appear to constitute minor changes -
but went on to make a few points. The first point related to water consumption having regard to an extra 10,000 litres of water storage. That concern seems to be misplaced. Whilst water consumption is certainly one of the concerns, the 10,000 litres of extra storage is not for storage for water to be consumed in the day-to-day activities of the proposal, but rather for storage for firefighting purposes. Mr Dale acknowledged that when it was pointed out to him in the course of the hearing. The second point that he was raising in Ms Dale’s email related to increased visibility of the cabins, but in light of the evidence of Mr McGowan, there seems to be little basis for concluding that there would be any change of visibility such as to constitute the changed proposal one that was a substantially different development.
- [17]There was also a concern that the movement of the buildings might increase noise levels. There does not seem to be any particular reason for fearing that. The movement of positions is relatively small, and it is unlikely that any minor increase would be of such a significance as to constitute the proposal as changed, viewed as a whole, as something which is a substantially different development.
- [18]The last point that was raised spoke about the car park now enveloping the primary residence. When one has regard to the plans, there seems to be little in that point in relation to the proximity of the primary residence relative to car parks. And in any event, any impact is entirely internal to the development, and so it is certainly one that the occupant of the primary residence would be entirely aware of before taking up residence. Otherwise, I accept that Mr Dale remains opposed to the proposal, but as I took him to ultimately accept and as the email from his wife also appears to concede, his points do not really amount to a basis for saying that the changes are more than minor for the purposes of the legislation.
- [19]After the order was made by Judge Williamson, the Waistells provided an email by which they made it clear that they do not contend that the proposed changes will result in a substantially different development. It is unnecessary then to delay any further on their response.
- [20]Ms Hay provided an email which annexed the documents of her and of Margaret Campbell and of the McDonalds. The statement of Margaret Campbell was a relatively lengthy document which descended to detail of the respects in which she is opposed to the proposal and does not consider that the changes alleviate her concerns. When, in the course of the hearing, I pointed out to her that the question is not whether the proposal as changed is acceptable, but rather whether the proposed changes render the proposal a substantially different development, she acknowledged that she did not think that the changes had that effect.
- [21]The McDonalds provided a brief statement, part of which was directed to their opposition to the proposal. Part of it pointed to some things about the proposal that represented increases. That was followed by a statement that:
Almost every proposed change will definitely result in a substantially different development.
- [22]I do not consider that there is any basis for that conclusion, particularly in light of the expert evidence to which I have referred.
- [23]The document provided by Ms Hay to some extent dealt with the question about the requirement for a referral. Having seen the outline of submissions for the Appellant, she withdrew reliance upon that part of the document.
- [24]She referred to a catalogue of the changes that were proposed, or at least some of them. Insofar as the relocation of part of the development closer towards the main western road is concerned, she spoke of the potential for a greater impact on amenity for some neighbouring properties, but for the reasons that I have already given, I do not think that there is a basis to contend that there is likely to be an impact, or at least an impact of sufficient gravity, as to result in the development being found to be substantially different development.
- [25]In the course of oral argument, she said words to the effect that, whilst she accepted that the changes may be technically minor, she was concerned about the cumulative effect of the changes. But having regard to the expert evidence, I cannot see any way in which the various changes interact together to produce a result which is substantially different development. In the course of argument, she also made reference to a further change that she would like to see, but of course, that is not a matter for the Court to consider on the hearing of the subject application. No doubt the Appellant will give that whatever consideration it thinks it should.
- [26]In an email that was sent prior to the order of Judge Williamson, Ms Hay raised a concern that minor changes made to a proposal at the appeal stage could be seen to lessen the weight that was ultimately put on submissions that were made during the application stage. She quoted a passage from the judgment of his Honour Judge Williamson in SDA Property Nominees Pty Ltd v Scenic Rim and Regional Council & Ors [2022] QPEC 39. There is nothing in the legislation to suggest that such an effect, if it occurs, is one which should restrict the discretion to allow a minor change. It should also be said that the mere fact that there has been a change permitted to a proposal at the appeal stage does not necessarily, in and of itself, render the public submissions made during the development application stage irrelevant. Much will depend upon the nature and extent of the change, and the contents of the public submissions. To the extent that matters complained of in the public submissions still remain relevant to the proposal, as changed, there is no reason for them to be disregarded.
- [27]It is not unusual, however, for applicants for development approval to change their proposals in the course of an appeal in ways which are aimed at addressing concerns and ameliorating impacts which were complained of either in the course of the development application stage or more particularly in the course of the appeal. One would not have thought that is something to be discouraged. For a developer to recognise, address and ameliorate a concern raised in a submission or by a party in an appeal, is, one would have thought, a beneficial use of the ability to make a minor change.
- [28]I am satisfied that the proposed changes do not result in a substantially different development. I am satisfied that they are within the boundaries of a minor change, and that the proceeding should be allowed to proceed on the basis of the application as changed. Order as per draft, initialled by me and placed with the papers.