DSL Securities Pty Ltd v Scenic Rim Regional Council [2023] QPEC 50

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: DSL Securities Pty Ltd v Scenic Rim Regional Council [2023] PARTIES: QPEC 50 DSL SECURITIES PTY LTD (ACN 064 744 861) (applicant) v SCENIC RIM REGIONAL COUNCIL (respondent) FILE NO/S: 300 of 2023 DIVISION: Planning and Environment Court PROCEEDING: Minor change application ORIGINATING COURT: Planning and Environment Court at Southport DELIVERED ON: 14 December 2023 DELIVERED AT: Southport HEARING DATES: 27 October 2023; 28 November 2023 JUDGE: Judge Wooldridge KC ORDER: The application is refused. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – application pursuant to section 78(1) of the Planning Act 2016 (Qld) for a development application to be changed – where the applicant seeks that a condition of the development application be deleted and replaced – where the applicant contends the change is the nature of a minor change as defined in schedule 2 of the Planning Act 2016 (Qld) – where the respondent does not oppose the application – whether the applicant has discharged the onus of establishing that the proposed change to the development approval is a minor change – whether the proposed changes would result in substantially different development – whether the application should be granted Planning Act 2016 (Qld) s 68, s 78, s 78A, s 80, s 81 Emaaas Pty Ltd v Brisbane City Council [2014] QPEC 31; [2014] QPELR 579 GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33 -- 1 of 9 -- 2 Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8 Zumbo v Brisbane City Council & Ors [2020] QPEC 14 COUNSEL: A Knox for the appellant A Rooney for the respondent SOLICITORS: Hickey Lawyers for the appellant Corrs Chambers Westgarth for the respondent Background [1] This is an application filed 16 October 2023 seeking an order, pursuant to section 78(1) of the Planning Act 2016 (Qld), that a development approval constituted by a Judge of the Planning and Environment Court be changed. The approval is attached to land described as Lot 101 on SP282988, previously described as Lot 11 on SP135508, situated at 258 Beaudesert-Nerang Road, Benobble in the State of Queensland (“the subject land”). The applicant is the registered owner of the subject land, with the benefit of the development approval. [2] The development approval attached to the subject land is constituted by the judgment of her Honour Judge Dann of this Court of 21 January 20221, further to the final judgment of 13 December 2019 of his Honour Judge Jones2, approving a development permit for a material change of use (Rural to part Rural residential B and part Rural), and a development permit for reconfiguring a lot (52 Rural residential B lots and 4 balance Rural lots). This Court is therefore the responsible entity for the change application pursuant to section 78A(2) of the Planning Act 2016 (Qld). [3] The applicant contends that the proposed change is of the nature of a minor change as defined in Schedule 2 of the Planning Act 2016 (Qld). 1 Originating application No 445 of 2021 refers. 2 Originating application No 4126 of 2018 refers. -- 2 of 9 -- 3 The nature of the change application [4] The extent of the change sort by the applicant, on its face, is that condition 11 of the current development approval be deleted and replaced. [5] Condition 11 (“the current condition”) presently reads as follows: 11. ACCESS TO COUNCIL ROADS (GENERAL) – Access to Council controlled roads is to be designed and constructed to Council’s Design and Construction Manual adopted by Council by resolution. The Developer is to provide for the construction of an access crossover to each of the individual allotments in accordance with the attached Drawings No’s 50416 Rev A or 50418 Rev A at approved location/s to the satisfaction of Council’s Director – Works and Infrastructure Services. The form of the access crossover will be dependent upon the existing topography and the roadway profile to the frontage of the respective allotments. The locations of the accesses are to be assessed and located so as to provide Safe Intersection Sight Distances per the requirements of Austroads Part 5 – Intersections at Grade – AP-G11.5-0.5. A copy of the assessment undertaken is to be submitted in conjunction with the Operational Works application for this stage of the proposed development. The assessment is to include documentation demonstrating the compliance zones determined for each and every allotment demonstrating where access provisions are seen to comply in the case of kerb and channel construction, or alternatively the locations within which an access crossover (i.e. pipe crossing) can be established in the case of flush kerb and swale drain construction. [6] By the application it is sought that condition 11 now read as follows (“the proposed amended condition”): An application for a Property Access Approval under the Scenic Rim Regional Council’s Subordinate Local Law No 1.1 (Alteration or Improvement to Local Government Controlled Areas and Roads), must be submitted by the future lot owners for the construction of an access crossover to a Council controlled road to evaluate the safety of the location for lots not included. Any construction or updating of accesses conditioned by this approval will be assessed upon inspection and are to comply with current Council standards. The access provisions shall be maintained in good condition for the lifetime of the proposed use. Note: Access crossovers for lots 1, 4, 16, 35, 39, 40, 43, 45, 46, 48, 53 and 54, as specified in the Operational Works approvals OPW20/031 and OPW23/044 must be completed by the developer before plan sealing. Should Council proceed with plan sealing for a specific lot without the physical works provided, Council may accept the bonding of the works. It is further advised that these access crossovers are -- 3 of 9 -- 4 exempt from requiring a “Property Access Approval” under Council’s local law. Pre-request response notice [7] Prior to bringing the application, the applicant consulted with the Scenic Rim Regional Council, as respondent. A pre-request response was also sought under section 80(2) of the Planning Act 2016 (Qld) from the Department of State Development, Infrastructure, Local Government and Planning, as a referral agency for the development approval. That collective correspondence led to a refinement of the original proposed amended clause 11 that was sought by the applicant, to that which is now sought on this application. The Department confirmed an absence of objection to the proposed change in the form sought on this application. The Council indicated at that time, as remains the position now, that the application is not opposed. The legislative framework [8] The term “minor change” is defined in schedule 2 of the Planning Act 2016 (Qld). A minor change for a development approval means 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. -- 4 of 9 -- 5 [9] The term ‘substantially different’ with reference to a development, is not defined in the Act. [10] Although reference to Schedule 1 of the Development Assessment Rules, promulgated by the responsible Minister pursuant to section 68 of the Planning Act 2016 (Qld), is not legislatively mandated, the rules provide guidance as a non- exhaustive list of considerations relevant to a determination of whether a change would result in a substantially different development. However, the rules do not comprise an exhaustive list of matters of relevance, nor are they determinative of whether a proposed change is of the kind that would result in a substantially different development. Whether the proposed changes are of the nature of being a minor change is a matter of fact and degree, to be considered broadly and fairly.3 Both quantitative and qualitative matters ought to inform the decision.4 The Court is to be concerned with the cumulative effect of changes as proposed. [11] As was observed by his Honour Judge Rackemann in Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8: “[15] An approval can only result in development if it is acted upon to some extent. The question of whether the applicant has established that the proposed change would not result in substantially different development must therefore be answered on the assumption that the changed approval would be acted upon to some extent and by considering the resulting development. [16] A comparison between pre and post change development scenarios often involves considering the whole of the development authorised by the existing approval and proposed to be authorised by the changed approval…” The material relied upon by the applicant in support of the application [12] In furtherance of the application to this Court, the applicant initially sought to rely upon an affidavit of Antony Knox sworn 23 October 2023, an affidavit of Anthony Hugh Parker sworn 16 October 2023, and an outline of submissions filed with leave 3 See GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33 at [49]. 4 Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19 at [14]; Emaaas Pty Ltd v Brisbane City Council [2014] QPEC 31; [2014] QPELR 579, 583 [15]; Zumbo v Brisbane City Council & Ors [2020] QPEC 14, [4]. -- 5 of 9 -- 6 on 27 October 2023. Within his affidavit, Mr Parker expresses the opinion that, from a town planning perspective, the proposed changes would not result in a substantially different development. Mr Parker also opines that none of the criteria in paragraph ii) of the definition of minor change in schedule 2 of the Planning Act 2016 (Qld) are impugned by the proposed change. [13] In the course of proceedings, I raised with the parties that while that material included Mr Parker’s opinion of whether the resulting change was of the nature of a “minor change”, there was little articulation in the material before me of what in practical terms would be the resulting change from amending the conditions of the development approval as proposed, in order for the Court to make its own assessment, nor going to the matters the Court is required to consider pursuant to section 81 of the Planning Act 2016 (Qld).5 [14] The applicant seeks to rely upon a further one-page supplementary outline of submissions and a further affidavit of Anthony Hugh Parker of 30 November 2023. The respondent has not filed any material and does not seek to make further submissions on the application. [15] In his affidavit of 16 October 20236, Mr Knox acknowledges that the amendment to condition 11 was sought in circumstances where “any works necessary to comply with condition 11 of the development approval were the last remaining steps to sealing of the survey plan lodged by the applicant”. [16] In both his affidavit of 16 October 2023, and the report attached to his second affidavit dated 30 November 2023, Mr Parker states that “the extent of proposed change…is limited to responsibility for construction of access by the developer to specific lots, with others subject to an application by the lot owner to Council”. On the material presently before me, I am unable to accept that opinion. [17] The current condition, on its face, places responsibility on the developer for each of the planning aspects, design aspects, and construction – not only the construction – of access crossovers. Further, that is required with respect to each and every of the 5 See the discussion in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 729-30 per Heydon JA at [59]-[60] and [68]. 6 At paragraph 9. -- 6 of 9 -- 7 individual residential allotments. The condition also proscribes assessment criteria for the location of the access crossovers to each allotment, including with specific reference to topography, safe intersection site distances, and kerb and channel or drain construction considerations. [18] By way of contrast, the proposed amended condition refers to future lot owners – with 12 exceptions – being required to submit an application for a property access approval, to “evaluate the safety of the location for lots not included”. That is, while the current condition requires construction of access crossovers to each and every of the residential allotments, the development approval, if amended as proposed, would appear to allow for plan sealing to occur without construction of access crossovers to the lots having first occurred, as concerns all but 12 of the lots. [19] The evidence before me on the application does not establish what if anything is known about the likelihood of a safe location for construction of access crossovers, otherwise meeting the same criteria as presently required, being identified with respect to each and every individual lot; whereas presently that requirement is implicit in the condition that such access crossovers be first constructed by the developer in accordance with the stipulated terms. [20] In either case, the result is that under the development approval, amended as proposed, no such access crossover may ever be constructed as concerns a number of the lots. [21] To the extent that the “Note” to the proposed amended condition excludes specified lots – 1, 4, 16, 35, 39, 40, 43, 45, 46, 48, 53 and 54 – from requiring a “property access approval”, as otherwise to be required under the condition as amended, it does not retain the requirements of the current condition as concerns those lots. While the proposed amended condition provides that access crossovers for the specified lots must be completed by the developer, the requirement is for completion as specified in operational works approvals, the details of which, by way of comparison to the requirements of the current condition have not been placed before the Court. [22] In the pre-request response correspondence, the basis for the requested amendment to the conditions of the development approval by the applicant was said to be that construction of lot access prior to the sealing of the survey plans may not be as -- 7 of 9 -- 8 preferred by the lot owner, consequently requiring the owner to demolish such existing access and construct a new access, resulting in unnecessary impact to Council roads7. However, within his affidavit, when addressing whether the changes introduce any new impacts or increase in the severity of any known impacts, Mr Parker describes the proposed changes as being “to simply accommodate topographical site constraints”8. Of note, the inclusion, at the instigation of Council, of the requirement in the proposed amended condition that the developer complete the construction of the twelve specified lots, was intended to “alleviate the potentially excessive construction costs that future lot owners might incur due to site constraints”. Such constraints or considerations, as referenced by Mr Parker or Council, are not otherwise expressly addressed within the material on this application. [23] The potential relevance of topographical and geotechnical considerations is also apparent from the discussion of topography, slope and related traffic safety and land stability considerations within the material furnished on the earlier applications to this Court and exhibited to affidavits on this application, as well as a number of other aspects of the development approval. [24] In the circumstances, on the material presently before the Court, there remains in my view a real question whether a change to the development to no longer require that each and every of the residential lots have constructed access crossovers at locations identified as safe, and compliant with the other requirements under the existing approval, would not, for example, affect the ability for the development to work as intended as an accessible residential development, or result in traffic or other related safety ramifications or impacts. Mr Parker’s expressed ultimate opinion, that from a town planning perspective at least, that the proposed change would not result in a substantially different development, is insufficient for me to be satisfied on the material presented that the proposed change is of the nature of a minor change as defined. [25] The applicant has not in my view discharged its onus of establishing that the proposed change is a minor change. Nor would I have determined to grant the application, further to the limitations to the material before the Court, and having regard to the 7 It is unclear how substantial any additional impact to Council roads would be from the “demolition” aspect, associated with an approved construction of an access crossover. 8 Paragraph 24 of the Affidavit of Anthony Hugh Parker of 16 October 2023. -- 8 of 9 -- 9 matters to which the Court must consider under section 81 of the Act. Accordingly, the application in its present form is refused. -- 9 of 9 --