Dickson Properties Pty Ltd as Trustee for the Dickson Investment Trust v Brisbane City Council & Ors [2015] QPEC 18 (2015) QPELR 595

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Dickson Properties Pty Ltd as Trustee for the Dickson Investment Trust v Brisbane City Council & Ors [2015] QPEC 18 PARTIES: DICKSON PROPERTIES PTY LTD (ACN 098 331 509) AS TRUSTEES FOR THE DICKSON INVESTMENT TRUST (appellant) v BRISBANE CITY COUNCIL (respondent) and ANTHONY LEIGHTON (first co-respondent by election) and BRUCE LOCKWARD (second co-respondent by election) and JOHN BRISTOW (third co-respondent by election) and RURAL ENVIRONMENT PLANNING ASSOCIATION INC (fourth co-respondent by election) and GEORGE PALLOT (fifth co-respondent by election) and MAX GODFREY GRINDON-EKINS (sixth co-respondent by election) FILE NO/S: 4072/12 -- 1 of 11 -- 2 DIVISION: Planning and Environment PROCEEDING: Hearing of an application ORIGINATING COURT: Brisbane HEARING DATE: 19 March 2015 and 6 May 2015 DELIVERED ON: 12 May 2015 DELIVERED AT: Brisbane JUDGE: R S Jones DCJ ORDER: 1. The changes to the proposed development as identified in Mr Schomburgk’s affidavit filed 12 March 2015 and in Exhibit 2 in this proceeding are minor changes for the purposes of s 4.1.52(2)(b) of the Integrated Planning Act 1997 and s 350 of the Sustainable Planning Act 2009; 2. I will hear from the parties if necessary as to any consequential orders. CATCHWORDS: APPLICATION – MINOR CHANGE – whether changes to the proposed development are minor changes for the purposes of the Integrated Planning Act 1997 and Sustainable Planning Act 2009 – where only substantive issue left in dispute was whether the introduction of an assembly point and flood emergency accommodation was a minor change – where proposed development located in a flood prone area – where respondent Council has refused development but does not contest the minor change application – where opposing co-respondents by election are long term residents of area who have suffered significant flood events – whether introduction of assembly point and flood emergency accommodation introduced a new use and unacceptable risks and was therefore not a minor change. Integrated Planning Act 1997 Sustainable Planning Act 2009 Independent Commission Against Corruption v Cunneen [2015] HCA 14 Parcel One Pty Ltd v Ipswich City Council and Ors [2007] QPEC 33 COUNSEL: Mr B Job for the applicant/appellant SOLICITORS: Anderssen Lawyers for the applicant/appellant -- 2 of 11 -- 3 Brisbane City Legal Practice for the respondent The first to the sixth co-respondents by election appeared in person on 19 March 2015 and on 6 May 2015 [1] This proceeding is concerned with an application under s 4.1.52(2)(b) of the Integrated Planning Act 1997 (IPA) which was repealed upon the introduction of the Sustainable Planning Act 2009 (SPA).1 The relief sought is that the proposed changes to the appellant’s development application are minor for the purposes of the IPA and SPA. For the reasons given the orders of the court are: 1. The changes to the proposed development as identified in Mr Schomburgk’s affidavit filed 12 March 2015 and in Exhibit 2 in this proceeding are minor changes for the purposes of s 4.1.52(2)(b) of the Integrated Planning Act 1997 and s 350 of the Sustainable Planning Act 2009; 2. I will hear from the parties if necessary as to any consequential orders. Background [2] This application first came before me on 19 March 2015. For reasons it is not necessary to go into, its hearing was adjourned to 6 May 2015. The application is not opposed by the respondent Council nor, albeit with a degree of reluctance, by the fourth and sixth co-respondents by election. The application was vigorously opposed by the first, second, third and fifth co-respondents by election. The opponents to the application are long-time residents of the area where the proposed development is to take place and who have been subjected to, over the years, a number of significant flood events. Indeed the first co-respondent by election’s family was trapped on site in the 2011 flood event. It is clear that their opposition is motivated by genuine concerns about public safety in significant flood events. [3] On 19 September 2012, the respondent issued a Decision Notice refusing the applicant’s development application. The substantive proceedings therefore are concerned with an appeal by the applicant against that refusal to approve the development which, inter alia, involved a reconfiguration of a lot/s and a preliminary approval for a material change of use to permit the construction of dwelling houses in a rural area. The subject lots are located at 108, 120 and 126 Weekes Road, Moggill (the “subject land”).2 [4] An appeal against the refusal of the development application was filed on 18 October 2012. Since that time there have been a number of meetings of experts retained by the respective parties and the preparation of reports by experts in various fields of study including flooding and storm water, ecology and town planning. As I understand it, the intended changes are primarily in response to issues raised during the meetings between the relevant experts. The proposed changes are summarised in the affidavit of Mr Schomburgk, the town planner retained by the applicant, in his affidavit filed 12 March 2015.3 The substantive changes include: 1 Transitional provision s 821 of the SPA provides that, for deciding the appeal, s 4.1.52(2) of repealed IPA applies as if the reference to a ‘minor change’ in s 4.1.52(2)(b) of the IPA were a reference to a ‘minor change’ as defined in s 350 of the SPA. 2 More particularly described as lots 1 and 6 on RP206168 and lot 3 on RP108155. 3 Refer to paragraph 9 of Mr Schomburgk’s affidavit filed. -- 3 of 11 -- 4 (i) An increase in the number of the proposed lots from 49 to 51; (ii) Changes to the size and configuration of the lots with some lots being larger, some smaller and some remaining the same; (iii) Nomination of building envelopes for the proposed lots; (iv) Access to Weekes Road has been amended to provide a single point of access between proposed lots 5 and 51, whereas the original plan of development proposed two access points from Weekes Road; (v) Pedestrian access has been provided from the internal access road through the common area into the public open space to provide a pedestrian access through from Weekes Road to the public open space proposed on the site and the respondent’s parkland northwest of the subject land; (vi) The dedication of public open space, rehabilitation of other parts of the site and onsite planting to address ecological issues raised; (vii) A landscape buffer to be provided to the frontage of Weekes Road intended to, among other things, provide koala food trees and to enhance the visual appearance of the proposal; (viii) The deletion of a proposed onsite detention basin to further facilitate tree retention; (ix) The introduction of access easements to improve accessibility particularly for large emergency vehicles; (x) Amendment of the proposal to a group title subdivision to ensure a body corporate is in place specifically to address flood management issues including evacuation; (xi) The designation of an area on proposed lot 26 to be above the Q2000 flood level for the purpose of flood emergency accommodation. [5] Notwithstanding there being a modest increase in the number of proposed allotments the proposed changes result in a substantial increase in public open space areas and areas which will remain undeveloped and form part of the common area of the proposed group title development. This has, in the main, been achieved by abandoning the originally proposed lot 49 which contained an area of 10.2 hectares. Most of the proposed changes can be readily identified by comparing the original lot layout4 with the amended proposed layout.5 [6] During the hearing of the matter on 19 March 2015 it became clear that those opposing the application were primarily concerned with the applicant’s intended means of dealing with significant flood events and, in particular, the introduction of an assembly point and flood emergency accommodation on proposed lot 26. Lot 26 would be located fronting a proposed road in the south western corner of the subject land and just to the west of the existing Zelita Road. The entire northern and eastern boundary of the subject land fronts the Brisbane River. [7] It is clear that all of the co-respondents by election and, the respondent Council, oppose the development on the subject land. However, whether or not that use is allowed by this Court is dependent upon the outcome of the substantive proceeding. 4 Exhibit 1. 5 Exhibit 2. -- 4 of 11 -- 5 This application is only concerned with whether the proposed changes are “minor” for the purposes of the SPA. Before going on to deal with the controversial issues in this application I should note that I consider all of the other proposed changes to be minor. The proposal is already impact assessable and those changes would not result in a substantially different development nor would they require the application to be referred to any additional referral agencies and nor do they change the type of development sought to be approved. The controversy [8] It is not in dispute that the land is subject to significant inundation in flood events from the Brisbane River.6 Indeed, the introduction of the assembly point and flood emergency accommodation was as a consequence of the input of Dr Johnson, the engineer retained by the applicant and Mr Collins the engineer retained by the respondent. The location was described by those two experts as a “safe refuge.”7 Mr Clark, the engineer retained by the fourth co-respondent by election, disagrees with Dr Johnson and Mr Collins in respect of a wide ranging list of matters but, in particular, with the proposed emergency flood management plan prepared by Dr Johnson.8 [9] While the proposed flood emergency accommodation might seem to address the concerns of the co-respondents by election about no provision being made to provide a safe and accessible community collection hub and shelter in the event of a flood emergency,9 what is now proposed is considered to be unsatisfactory for a number of reasons. It is not necessary to identify each and every document filed on behalf of the opposing co-respondents by election to identify what their real concerns were. In a document tendered on 19 March 201510 the second co-respondent by election summarised his objection in the following terms: “1. The original plan did not identify any need or provision for any Emergency Flood Accommodation. 2. The JER (Joint Expert Report) identified the need for Emergency Flood Accommodation of 200m2 to cater for 130 persons for two days. 3. Accommodating 130 persons for two days requires between 390-455m2. 4. This area and population is not in the category of a house, and would be non-compliant on the first floor of a house. 5. Disability provisions have not been considered. 6. Compliant facilities would be categorised as Class 9 Building or Place of Assembly. 7. Having a ‘failsafe’ or ‘safety in place’ Emergency Flood Accommodation facility on site catering for the entire population of the proposed subdivision (2.5 persons per resident) would clearly give residents a false sense of security 6 See for example Exhibits 6 and 9 and Exhibit 4, paras 1 and 12. 7 Exhibit 4, Points of Disagreement, para 1b. 8 Exhibit 4, Points of Disagreement, paras 1c and 4a. 9 See Exhibit 3, para 17. See also transcript of 19 March 2015 at pp 1-19 L 37-44 and 1-20 L 5-8. 10 Exhibit 5. -- 5 of 11 -- 6 and encourage them to act contrary to the proposed mandatory evacuation. 8. This false sense of security would be further reinforced if mandatory evacuations were carried out six hours before evacuation routes became impassable, but residences being at least 5m higher and could not actually see any threat. The ‘cry wolf’ scenario could lead to disbelief or lack of urgent compliance when major floods threatened. 9. Mandatory excavation in all flood emergencies if enforced would make residents feel wary of the Emergency Flood Accommodation and suspicious of its “failsafe” credentials.” (Original emphasis) [10] Similar concerns can be found expressed in paragraph 7 of the affidavit of the first co-respondent by election filed 18 March 2015 and in paragraph 7 of the affidavit of the fifth co-respondent by election filed on the same date. The third co-respondent by election raises similar but not identical concerns. In a further document described as an “affidavit” filed on 1 May 2015 the second co-respondent by election repeats his summary of concerns and addresses in more particularity his (and the other opposing co-respondents by election) arguments concerning the minor change application. It is contended that the proposed introduction of an assembly point and flood emergency accommodation could not reasonably be described as introduction of a minor change. That was so it was said for a number of reasons: 1. It fundamentally changes the nature of the proposed development from one where people would clearly know that they have to evacuate the site to escape from floodwaters as quickly as is practicable to one where “through the existence of a flood emergency accommodation facility people could understandably believe (irrespective of group title provisions) that it is safe to stay onsite during flood events when it is not”11; 2. It introduces a non-residential use (being a place of assembly use) into a purported residential subdivision and onto a purported residential lot; 3. The introduction of flood emergency accommodation is a new use; 4. To be compliant the flood emergency accommodation would involve the construction of a large and bulky building and the introduction of a car park, storage sheds and other supportive services; 5. The introduction of the flood emergency accommodation would create “new impacts” and would increase the severity of known impacts. [11] At page 3 of that same document it is expressly asserted: “The amended plan is considered to NOT be a MINOR CHANGE specifically because it encourages residents to now believe they can remain on these potentially dangerous islands and be safely accommodated in ‘fail safe’ Emergency Flood Accommodation as an alternative to evacuation.” (original emphasis) [12] The third co-respondent by election did not specifically address the minor change issue but otherwise made clear his opposition to the proposed development be it in its original or amended form. 11 Mr Lockwood’s “affidavit” filed 1 May 2015 at para 5(i). -- 6 of 11 -- 7 Relevant legislation [13] Insofar as the substantive appeal is concerned, the Court must not consider a change to the original development application upon which the respondent based its appealable decision unless the change is a minor one.12 Pursuant to s 350 of the SPA, a minor change, relevant to this application, is one which: “(1) … (d) … (i) does not result in a substantially different development; and (ii) does not require the application to be referred to any additional referral agencies; and (iii) does not change the type of development approval sought; and (iv) does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment. (2) In deciding whether a change is a minor change under subsection (1)(d), the planning instruments or law in force at the time the change was made apply (the applicable law).” [14] The matters identified in (ii) and (iv) are not relevant to this application. At one stage during submissions the second co-respondent by election raised the possibility of the need to refer the proposed flood emergency accommodation to an additional referral agency. That was not stated as a matter of fact and/or law but as a “question” that might need to be considered.13 As the amended proposal now stands, I am satisfied that the introduction of the flood emergency accommodation would not require referral to any additional agency. It may be that the flood emergency accommodation of the size and nature described by the second co-respondent by election14 would require referral but that is not the point. I am concerned here with the changes as proposed by the applicant. Discussion and Consideration [15] The applicant bears the burden of proving that the proposed changes can properly be described as being minor.15 [16] On more than one occasion those who oppose the application referred to Statutory Guideline 06/09: Substantially different development when changing applications and approvals (“the Guideline”). That document was prepared to:16 12 Section 4.1.52(2)(b) IPA. 13 Transcript of 6 May 2015 at p 1-40 L 34-39. 14 Refer to para 10 above and affidavit of second co-respondent filed 1 May 2015 at pp 5-6. 15 Section 493 SPA. 16 Statutory Guideline 06/09 at p 3. -- 7 of 11 -- 8 “assist applicants and assessment managers to determine if a proposed change to a development application or development approval would result in a substantially different development.” (Emphasis added). The Guideline then goes on to identify a non-exhaustive list of matters which may, depending on the circumstances, result in a substantially different development. The Guideline in this context relevantly provides:17 “A change may result in a substantially different development if the proposed change:  involves a new use with different or additional impacts  results in the application applying to a new parcel of land  dramatically changes the built form in terms of scale, bulk and appearance  changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment  removes a component that is integral to the operation of the development  significantly impacts on traffic flow and the transport network …  introduces new impacts or increases the severity of known impacts removes an incentive or offset component that would have balanced a negative impact of the development  impacts on infrastructure provision, location or demand.” [17] Only the first, third and seventh matters identified in the Guideline require consideration. [18] The primary objective of the development application is to achieve the reconfiguration of three large existing lots into 51 lots and to obtain preliminary approval for a residential development over part of the subject land. To put it another way, the intended use is for residential development dominated by smaller lot subdivision (albeit in group title), common areas, open space and roads. That intended use is not affected by the introduction of the flood emergency accommodation or by the introduction of a designated assembly point in flood events. While it may be true that those elements introduce a “new” use into the proposed development that does not mean that the underlying dominant use contemplated by the development application has changed. That is particularly so in the circumstances of this case where the “use” complained of would only occur, if not rarely then at least infrequently and even then only for relatively short periods of time. [19] Even accepting for the moment that the flood emergency accommodation would have to be of the size and dimensions contended for by the opposing co-respondents by election (including ancillary services and uses) that would not in any material way 17 Statutory Guideline 06/09 at pp 3-4. -- 8 of 11 -- 9 impact on the scale, bulk and appearance of the “built form” contemplated in the development application. [20] Turning then to what I consider to be the central issue in this proceeding, namely the potential consequences or impacts that would result from the introduction of the flood emergency accommodation and assembly point. According to Mr Schomburgk none of the proposed changes introduces a new impact nor do they increase the severity of known impacts.18 [21] While I am readily able to accept the latter assertion I am less certain about the first. It seems tolerably clear to me that when Mr Schomburgk asserts that no new impacts are introduced he was having regard to the more common impacts associated with a proposed development of this nature. That is, the amenity issues associated with size, bulk and appearance of development, impacts on traffic, external road networks and infrastructure etc. The new “impact” the opponents to this application say would be introduced by the flood emergency accommodation and assembly point is the introduction of a false sense of security which would in turn act as a deterrent to the proper response to a flood event, namely early mandatory evacuation. Their concerns extend to the possibility of residents from outside the proposed development also being attracted to Lot 26 rather than evacuating the area. In the context of this application, involving as it does the development of land subject to flooding and its associated risk to human life, the word “impact”, where used in the Guideline should not be given a too narrow interpretation and is capable of encompassing those risks. That is they involve influences and/or effects introduced by something new.19 Conclusions [22] On balance I am of the view that the proposed changes in so far as they are designed to address emergency flood situations at least have the potential to introduce new and not insignificant impacts. However, it is important not to lose sight of the fact that Statutory Guideline 06/09 is just that, it is meant to provide a set of indicia that “may”, depending on the “individual circumstances” of a particular case, assist the decision maker in determining whether a change would result in a substantially different development. The Guideline is neither definitive nor exhaustive. [23] It does not follow that changes that introduce new impacts or increases in the severity of known impacts necessarily result in there being a substantially different development when all the relevant facts and circumstances are looked at objectively. To do so would be to give the words used in s 350(1)(d)(i) an artificially technical and restrictive meaning. In Independent Commission Against Corruption (ICAC) v Cunneen20 French CJ and Hayne, Kiefel and Nettle JJ said: “As was said in Project Blue Sky Inc v Australian Broadcasting Authority: ‘… A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be 18 Affidavit filed 12 March 2015 at para 27. 19 Oxford Australian Reference Dictionary and Macquarie Dictionary. 20 [2015] HCA 14 at 31 and 32. -- 9 of 11 -- 10 alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.’ (emphasis added, footnotes omitted). Judged by reference to those imperatives, there are potential difficulties with each of the approaches adopted in the Court of Appeal. The difficulty with the approach taken by Bathurst CJ, which ICAC urged this Court to approve, is that it assumes that the plain and ordinary meaning of ‘adversely affect’ is its broadest possible meaning and does not attempt any kind of reconciliation of the meaning of that expression with the statutory context in which it appears.” (emphasis added). [24] Section 350 of SPA is to be found within Chapter 6 concerned with the decision making stage within the IDAS system. While, in the circumstances of this case, there is no apparent conflict arising from the language of particular provisions requiring adjusting the meaning of competing provisions, the construction urged by the first, second, third, and fifth co-respondents by election, on its face is artificially technical and restrictive, and I can see no basis by reference to the language of the surrounding provisions to warrant such a construction. That is particularly in circumstances where, while the personal experiences of the co-respondents by election means that their concerns cannot be dismissed as being speculative, I was not taken to any probative evidence that supported the magnitude of the problems/impacts they said would occur in a major flood event. [25] When looked at objectively it could not reasonably be said that the proposed changes result in a substantially different development. The overall purpose in both the original and the amended development proposals is for residential development dominated by smaller lot subdivision in the south western corner and some larger lots towards the east of the site. The road layout is materially the same, the only change of significance being restricting access onto Weekes Road to one ingress and egress point (as opposed to two). Another common feature between the original and amended proposals is that the frontages to the Brisbane River were to remain undeveloped. The land has and will remain at risk of significant flooding beyond the foreseeable future. What this application involves is a proposed solution. Such works, to adopt the approach of Wilson SC DCJ (as he then was) in Parcel One Pty Ltd v Ipswich City Council and Ors,21 are essentially operational in character and do not alter the fundamental nature and extent of the proposal. [26] For the reasons given I have reached the conclusion that the minor change application should succeed. The proposed changes do not result in a substantially different development and nor would they change the type of development approval sought. [27] For the sake of completeness I should observe that my findings of fact concerning the proposed changes, in particular those changes concerned with dealing with flood emergencies, are in no way binding on the parties insofar as a substantive appeal is concerned. No principles of issue or collateral estoppel arise. The first, second, third and fifth co-respondent by election and any other party for that matter opposing the 21 [2007] QPEC 33 at [10] and [11]. -- 10 of 11 -- 11 proposed development, would be able to agitate the issues addressed herein as a part of their overall case against the applicant at the hearing of the substantive appeal. [28] For the reasons given the orders of the court are: 1. The changes to the proposed development as identified in Mr Schomburgk’s affidavit filed 12 March 2015 and in Exhibit 2 in this proceeding are minor changes for the purposes of s 4.1.52(2)(b) of the Integrated Planning Act 1997 and s 350 of the Sustainable Planning Act 2009; 2. I will hear from the parties if necessary as to any consequential orders. -- 11 of 11 --