FKP Lifestyle Pty Ltd v Brisbane City Council [2015] QPEC 57 [2016] QPELR 113

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: FKP Lifestyle Pty Ltd v Brisbane City Council [2015] QPEC 57 PARTIES: FKP LIFESTYLE PTY LTD (appellant) v BRISBANE CITY COUNCIL (respondent) And QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LIMITED (TRADING AS POWERLINK QUEENSLAND) (first co-respondent by election) And CENTRAL SEQ DISTRIBUTOR-RETAILER AUTHORITY (TRADING AS QUEENSLAND URBAN UTILITIES) (second co-respondent by election) FILE NO/S: 3762/2014 PROCEEDING: Appeal DELIVERED ON: 20 November 2015 – ex tempore DELIVERED AT: Brisbane HEARING DATE: 20 November 2015 JUDGE: Rackemann DCJ ORDER: Order as per draft CATCHWORDS: PLANNING AND ENVIRONMENT – proposed creation of habitat lots – where public notification deficient – where additional informal advertising made good any adverse effect of non-compliance – where excusal justified – whether proposed amended layout, which increased the number of lots -- 1 of 8 -- for 17 to 19 and changed their distribution, was a minor change COUNSEL: C L Hughes QC, with him N Loos, for the appellant M T Woodhead for the respondent D D Purcell for the first co-respondent by election D M Cotton for the second co-respondent by election SOLICITORS: Cooper Grace Ward for the appellant Brisbane City Legal Practice for the respondent McInnes Wilson Lawyers for the first-co-respondent by election [1] This is an appeal against the Council’s refusal of a development application seeking to create residential lots, which are referred to as “Habitat” lots, in an area which is currently vegetated. The allotments would form part of a much larger residential estate on several parcels of land at Rochedale. [2] The parties are in agreement that, as a matter of merit, the appeal should be allowed and approval given on the basis of an amended proposal and the imposition of certain conditions. There are, however, two matters to be considered prior to the Court making an order to that effect. [3] The first consideration relates to public notice of the development application. In this respect there was admitted noncompliance. The applicant/developer seeks an order under section 440 of the Sustainable Planning Act, effectively excusing noncompliance. [4] At the time the application was made the land to be subdivided formed part of a broader undeveloped area, with a frontage to Gardner Road. When the advertising signs were erected, a sign was placed at the Gardner Road frontage. In the meantime, -- 2 of 8 -- however, the site had been the subject of substantial residential subdivision, which included the creation of internal roads (ie new public roads within the estate). It is accepted, that at the time the advertising was done, signs should have been placed on the frontages to the internal roads which adjoin the part of the site which was the subject of the application to create the Habitat allotments. [5] When the matter first came on for hearing I expressed a concern that the noncompliance may have had the effect that persons who would otherwise have wished to make a submission did not become aware of the application, and hence did not get to make a submission. In that respect, although the internal roads ultimately give access to Gardner Road, the place where the sign was positioned was such that not all traffic accessing the estate via by Gardner Road would necessarily pass the sign. [6] Secondly, the sign was placed in front of other undeveloped land and at a distance which was well removed from the area to be subdivided as part of this application. Hence, somebody driving past, seeing the sign, may not have thought that it related at all to the land which was, in fact, the subject of the proposal. Although someone who stopped, in order to look at the sign, could have worked out the land to which it related, it seemed to me that there was a concern that a person may not have been put upon that inquiry, given the location of the sign. [7] Rather than proceed to a determination of the point at that stage, the appellant had the further hearing adjourned, so that it could carry out further informal advertising so as make good any adverse consequences of the noncompliance. In that respect, it placed notices on the land which informed any reader of the proposal, and indeed, of the proposal as now sought to be amended. It gave the reader an opportunity to make any submission which they wished to make to the Council and also informed them of their -- 3 of 8 -- ability to be joined as a party to the proceedings, if they wished, by filing a notice of election. Although the notification was not a formal notification, it was implicit that the appellant would not have objected to anyone who made a submission being joined to the proceedings as a party if they so wished. [8] As a consequence of that further notification a significant number of submissions were received, which raised matters of objection, including matters of relevance to the merits of the proposal, as well as other matters of grievance (which were not so much relating to town planning as to what the residents said that they were led to believe at the time that they purchased their allotments). In all, some 57 submissions were received, most of which were by way of two proforma type submissions, although there were also individually drafted submissions received from some. [9] The Council has received those submissions and has considered whether, in light of those submissions, it should maintain its attitude in the appeal. It informed the Court that it remains supportive of the amended proposal, subject to the conditions which are proposed. It might be observed that the matters the subject of the submissions, insofar as they are relevant, were matters which were considered by both the developer and the Council. [10] Accordingly, insofar as public notification gives a right to make a submission, any adverse effect of the noncompliance in the past has been made good by giving an opportunity now to make submissions in an attempt to influence the Council’s attitude. Those rights have been exercised, and the Council has given consideration to those submissions. Indeed, the opportunity that has being given now is perhaps better than the opportunity which would have been given at the time, since the opportunity that has being given now relates to the proposal in its final amended form, whereas public -- 4 of 8 -- notification at an earlier time would have been in relation to the proposal as it then existed. [11] Those who make submissions of objection in response to public advertisement also obtain a right to appeal against a decision to approve the application, or to elect to become a party to an appeal against a refusal. The appellant stood ready to accommodate anyone who now wished to join as a party in the proceeding, and certainly those people were also informed of their right to seek to be made a party, not only by the advertisement that was recently carried out, but also by correspondence sent by the Council, which informed each submitter as to when the matter was next before the Court, and informed them that they should be present if they wished to participate. Notwithstanding that correspondence, no submitter has sought either to elect to become a party to the appeal, nor has any submitter appeared in Court on the days when this matter has been back before Court, in order to seek to become a party to the appeal. [12] In those circumstances, it seems to me that, given the lengths to which the appellant has gone to remedy the effects of noncompliance, that it is appropriate for me now to exercise the discretion under section 440, to excuse the previous noncompliance in relation to public notification. [13] The second point to consider is whether the proposed change to the application falls within the bounds of a minor change. The development proposal has evolved over time. Initially, it sought the development of 23 allotments proximate to the western and southern boundaries of the site. That was later amended to a 17-lot proposal, which was the subject of the council’s refusal. What is now sought is a 19-lot proposal, -- 5 of 8 -- which deletes development from the southern boundary, but includes more lots in the western part. [14] The differences between the 17-lot proposal, the subject of the council’s decision, and the 19-lot amended proposal were summarised in Mr Hughes QC’s submissions as follows: (a) An increase in the number of lots from 17 to 19, with the location of lots having been moved to accommodate the council’s preferences about vegetation buffers; (b) the relocation and reduction in number (from eight to six) of road access to the proposed lots, from Kate Circuit and Cooper Crescent; (c) the dedication to council of land (both detention basins and generally to the west); (d) the relocation of some building lot envelopes to allow the retention of existing trees; (e) the inclusion of bushfire mitigation infrastructure in accordance with an updated bushfire hazard assessment dated 16 June 2015 (including relocation of emergency access points); (f) a reduction in the size of stormwater detention basin; and (g) the addition of bin enclosure locations and sealed driveways. [15] The basic nature and extent of development in the proposal remains similar to that of the proposal which was before the council at the time of its decision. The amendments do not trigger any additional referral agencies, do not change the type of development approval sought and do not change the level of assessment. [16] Matters to be considered in looking at whether the amendment presents a substantially different development include whether the proposal would introduce any new, -- 6 of 8 -- significant element or remove any significant element and whether it would have any new or increased impacts compared to the previous proposal. In this case, the amendments do not do so. [17] Insofar as impact is concerned, the land which is proposed to be subdivided has both environmental and aesthetic values. Indeed, the submissions which were received in response to the recent further public notification focused upon those issues as well as others which are referred to in the report of Mr Saunders which is exhibited to his affidavit. [18] Although the proposed amendment increases the number of lots by two compared to the proposal which was before the council, the material before the Court demonstrates that it does not have any significant additional adverse impact. Indeed, the report of Mr Saunders, which is annexed to his affidavit filed on the 17th of September 2015, summarises the ecological impacts of the two proposals and reaches the conclusion that there are no perceptible or actual increases in direct or indirect aggregate impacts as a result of the amended proposal. To the contrary, there are obvious ecological improvements from the revision of the proposed layout, including the dedication of conservation land as a council asset, the removal of potential impacts from conservation areas associated with the southern tributary corridor and net quantitative gains in vegetation, which are set out in section 5 of his report. [19] Insofar as aesthetic considerations are concerned, his report concludes that there are overall net benefits in visual amenity terms. While some building envelopes are closer to the internal road, the conditions of approval, which will require additional screen planting between the road reserve and the existing bush adjacent to these allotments, will ensure no discernable additional visual impacts. -- 7 of 8 -- [20] It may be noted that the submissions which were received in response to the most recent advertising did not take issue so much with the proposal to change from the 17 to the 19 lot proposal, but rather took issue with development of the area at all. And, indeed, one of the submissions expressly acknowledged that the amended proposal is preferable to the earlier 17 lot proposal. [21] In the circumstances I am well satisfied that the proposed change does not result in a substantially different development, and that it is a minor change. In those circumstances I am prepared to make the orders which are sought. -- 8 of 8 --