Comiskey Group (a firm) v Moreton Bay Regional Council & Anor [2012] QPEC 44 [2012] QPELR 649

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Comiskey Group (a firm) v Moreton Bay Regional Council & Anor [2012] QPEC 44 PARTIES: COMISKEY GROUP (a firm) (appellant) v MORETON BAY REGIONAL COUNCIL (respondent) and CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS (co-respondent by election) FILE NO: 210/2010 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 29/06/12 DELIVERED AT: BRISBANE HEARING DATE: 19/04/12 JUDGE: Searles DCJ ORDER: APPLICATION GRANTED CATCHWORDS: Application – Integrated Planning Act 1997 - Minor Change - Meaning of Minor Change – Flooding Impacts – Visual Amenity COUNSEL: Applicant: D.Gore QC with J.Hayden Respondent: A.Skoien SOLICITORS: HWS Lawyers Morton Bay Regional Council -- 1 of 30 -- 2 Application [1] The Appellant (Comiskey) proposes changes to its development proposal and seeks an order that those changes constitute a minor change within s 4.1.52(2)(b) of the Integrated Planning Act 1997 (IPA) and s 821 of the Sustainable Planning Act 2009 (SPA). Statutory Regime [2] The relevant Development Application (DA) was made under IPA but had not been decided prior to its repeal upon the introduction of SPA on 18 December 2009. By operation of the SPA ss 802(2), 819(5)(a) and 819(6) the Appeal and this Application are to be decided under IPA as if SPA had not commenced. That is subject to one important exception namely SPA s 821(2)(b) which deems any minor change application under IPA s 4.1.52(2) be a reference to a minor change as defined under SPA. Development Application [3] The DA was lodged on 27 April 2009 and relates to a proposed residential housing estate at Todds Road, Lawnton involving the development of 216 allotments contained in Residential A and Rural Zones under the Pine Rivers Planning Scheme (Scheme). It requires impact assessment. [4] The DA sought:- -- 2 of 30 -- 3 (a) Preliminary approval for a material change of use to override the Planning Scheme (Proposed Residential Housing Development); and (b) Development Permit for reconfiguring a lot. Appeal [5] The appeal was filed on 21 April 2010 against the Council‟s deemed refusal of the DA. The Land [6] The land comprises four allotments bounded by Todds Road to the south and the North Pine River to the north with a total area of 45.5815 ha. It is presently developed with four residential dwellings and associated outbuildings all of which are located on the upper higher area towards Todds Road. There is a lower area of the land adjoining the North Pine River. [7] In June 2006, pursuant to an approval obtained by the appellant, earthworks were undertaken on the lower level of the site to create a small water body and to re- contour the surrounding area to provide a raised platform (Island Platform). The approval required that the filling for the raised platform would not exceed a height of RL 8.9 m AHD. Those works have been carried out and the platform now gives an appearance of a small kidney shaped island. -- 3 of 30 -- 4 Proposed Development [8] The appellant‟s proposal involves the creation of the 216 allotments over 12 stages with lots created in each stage varying between 5 and 38. The Island Platform is an area of 8.9 ha and will have a total of 79 allotments developed over three stages 2A, 2B and 2C. Access to the development is to be provided by two intersections at each end of the long frontage to Todds Road, then with access from the Todds Road end of the estate onto the island via a bridge. Changes sought by Comiskey [9] The proposed changes are:- (a) To raise the level of the Island Platform for development stages 2A, 2B and 2C and the height of the roadway surface of the abovementioned island access bridge to a level of RL 10.6 m AHD from the level of RL 9.5 m AHD which was the height shown in the Publicly Notified Plan. That involves an increase of 1.1 m; (b) To change the island bridge design from a BEBO Arch bridge to a Land bridge involving 10 culverts. Previous Minor Change Applications First Application – October 2010 -- 4 of 30 -- 5 [10] There have been two previous minor change applications relating to this project. On 11 October 2010 His Honour Judge Andrews SC approved the following changes as minor changes:- (a) The raising of the island development platform in stages 2A, 2B and 2C to a level of RL 9.6 m AHD from the previously approved height of RL 8.9 m AHD, an increase of 1.1 metres; and (b) Replacement of the BEBO Arch access bridge by a Land bridge with 10 culverts at a height of RL 9.6 m AHD. Second Application – February 2012 [11] The second application was the subject of an order of His Honour Judge Jones on 17 February 2012 where His Honour declined to make an order that the following changes were minor changes:- (a) Change in the design and construction of the proposed bridge from the BEBO Arch style at a height of RL 10.6 m AHD; (b) Filling part of the Lagoon to the north of the bridge to RL 5.8 m AHD; (c) Increasing the level of fill on the Island Platform to RL 10.6 m AHD; and -- 5 of 30 -- 6 (d) Backfilling to the west of the Island Platform to a level of not less than RL 6.8 m AHD. Only changes (a) and (c) are relevant to this application. Although, of course, I must decide the present application de novo, I note that Jones DCJ declined the minor change application as a consequence of His Honour declining to make an order in relation to change (d) above.1 His Honour did, however make some observations about the visual amenity aspects. As to the proposed change (a) to the design and construction of the proposed bridge he said:- “[8] Notwithstanding a significantly different visual appearance of the new bridge when compared with the original design, this change could only be described as minor when considered in the light of the nature and extent of the proposed sub division.” [12] As to the proposed change (c) involving the increase in the level of fill on the island pad to RL 10.6 m AHD His Honour said:- “[22] On the evidence before me I accept that the raising of the island pad by 1.1 m would have no material effect on the scale, bulk or appearance of the development. I also accept that any visual amenity impacts associated with this change would tend to be minor and capable of being dealt with by appropriate landscaping.” [13] Notwithstanding those comments His Honour declined to approve changes (a) and (c) because of unresolved differences of opinion between the engineers Messrs Collins & Clark both of whom gave evidence before me.2 Given the level of those unresolved differences of opinion, between Mr Collins and Mr Clark, His Honour was not sufficiently satisfied that those changes would not result in a substantially 1 Comiskey Group (a firm) v Moreton Bay Regional Council & Anor [2012] QPEC 4 at [10]-[16] and [26] 2 Ibid, [9] and [23] -- 6 of 30 -- 7 different development by introducing significant new impacts and/or increasing the severity of known impacts.3 The meaning of minor change [14] As I have said the meaning of this term in SPA s 350 governs the application. It relevantly provides:- “350 Meaning of minor change (1) A minor change in relation to an application, is any one of the following changes to the application:- (a) … (b) … (c) … (d) A change that:- (i) Does not result in a substantially different development; and (ii) … (iii) … (iv) … (2) … (3) …” [15] Statutory Guideline 06/09 made by the Chief Executive pursuant to SPA s 760 relevantly provides:- “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 3 Ibid, [28] -- 7 of 30 -- 8 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, such as increasing traffic to the site 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.” It is common ground that the above two highlighted criteria are the only ones relevant to this application. [16] In Parcel One Pty Ltd v Ipswich City Council4 Wilson SC DCJ as he then was, in considering the test for minor change under IPA s 4.1.52(2)(b) set out principles His Honour distilled from the authorities namely:- “(a) It is important not to adopt a test other than that stipulated in the statute. The phrase „only a minor change‟ is a simple and straightforward one which should be construed principally by reference to matters of scale and degree, and broadly and fairly; (b) It is attractive to adopt a generous approach to the interpretation of the limits within which an application may be changed; (c) It must, however, be remembered that the matter comes before the court by way of an appeal and the court must not deprive the proceedings of that character by usurping the function of the decision maker at first instance; (d) The question may be determined with some assistance from the criteria referred to in Schedule 10 of IPA; (e) The possibility that the changes proposed are beneficial or ameliorative may be relevant to the third arm of the definition of minor change in Schedule 10, (c) of IPA; but the fact that the changes proposed may be characterised in that way does 4 [2007] QPELR 474 at 476-477. -- 8 of 30 -- 9 not automatically overcome the jurisdictional hurdle that the changes must be limited to ones which are only minor; (f) For the purpose of the exercise it will be useful in some cases to distinguish between the salient, and the incidental, features of the original proposal. Modification of a salient feature, if small or inessential, may amount to no more than a minor change. On the other hand, modification of a salient feature which cannot reasonably be seen as small or inessential is likely to be more than a minor change; (g) The dictionary meaning of „minor‟ includes unimportant, or insignificant. The use of the word „only‟ in s 4.1.52(2)(b) of IPA might be taken as an indication that what is contemplated is something relatively unimportant.” [17] The definition of minor change in IPA Schedule 10 was:- “Minor change, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change:- (a) Require a referral to additional concurrence agencies; or (b) Cause development previously requiring only code assessment to require impact assessment; or (c) For a development requiring impact assessment – be likely, in the assessment manager‟s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allow.” It is to be noted that sub paragraph (c) in that definition has not been repeated in SPA s 350 which has been recognised by this court as being a more generous test to developer applicants than the predecessor provisions of IPA.5 That is not to say that this court under IPA was not mindful of the principle of generosity of approach identified by Wilson SC DCJ above. For instance in Gaven Developments Pty Ltd v Scenic Rim Regional Council6 Robin QC DCJ had occasion to reflect on the meaning of the term “only a minor change” in IPA s 4.1.52(2)(b), the lynch pin to the courts jurisdiction to consider a change of application”. His Honour said:- 5 McDonalds Australia Ltd v BCC [2010] QPELR 640 at 642. -- 9 of 30 -- 10 “The court has had occasion to explore more of the ramifications of „only a minor change‟ in s 4.1.52(2)(b) of IPA than the „usual‟, simpler case. The present circumstances present an opportunity for reflection on the implications of the word „minor‟, which may be seen as the opposite of „major‟. On a more refined approach, flexibility can be introduced by a category inbetween of „moderate‟ local authority recognition of such a system or arrangement may be found in Schedule 1 in the Criminal Offence Victims Act 1995. Some adverse consequences for victims of crime such as brain damage are categorised as „minor/moderate‟ or „severe‟. The same applies for bruising/lacerations ex cetera, ex cetera, fracture/loss of use of leg/ankle and facial disfigurement or bodily scarring. For other types of injury, three separate categories are recognised and provided for. It cannot be said that, of necessity, something that might be seen as substantial or significant is therefore not „only minor‟. Phenomena such as minor surgery, minor accidents or minor disturbances are likely to be significant for those directly involved. Section 4.1.52(2)(b) should not be construed so restrictively that it becomes unreasonably difficult for developers to refine their proposals to accommodate changes inspired by their own more mature consideration or by suggestions of others, without being forced back to the beginning or some such earlier stage in the process of seeking and obtaining a development approval.” Engineers’ evidence [18] The evidence of the engineers focused on increased flood levels and, the flood impact of the development built in accordance with the Publicly Notified Plans (Island Platform RL 9.5 m AHD) and the proposed Current Plans respectively. There is no issue that the relevant Defined Flood Event (DFE) for the land under Chapter 5, Part (Major Flood Events Overlay Code) of the Pine Rivers Plan is Q100.7 6 [2010] QPELR 385 at 391 [20]. 7 Affidavit S.Q. Clark 12 April 2012 paragraphs 8 & 9 -- 10 of 30 -- 11 Mr Collins (Comiskey) [19] .Mr Collins, a flooding expert engineer, gave evidence for Comiskey. He said the proposal to raise the Island Platform to RL 10.6m AHD was in response to the January 2011 flood event and criticism by the Council‟s engineer, Mr Clark.8 Taking that platform level and the level of the proposed land bridge to RL 10.6m AHD, he said, will raise the immunity level of roadways on allotments on the platform to well over the average recurring interval (ARI) 500 year flood level. [20] As to the impacts of development in accordance with the Current Plans, Mr Collins says that will provide a safer development than that developed in accordance with the Publically Notified Plans because the platform and the bridge roadway surface will not be inundated in the event of a flood event similar to 2011 resulting in the time for evacuation of the platform increasing. 100 year ARI storm event [21] Mr Collins compared the maximum impacts of development in accordance with the Publically Notified Plans on the 100 year ARI storm event with the impact if built in accordance with the Current Plans. Impacts refer to additional flooding caused by the development. If developed in accordance with the Publically Notified Plans he said the maximum impacts/additional flooding external to the site and measured adjacent to the northern boundary would be 55mm. The equivalent figure for a development in accordance with the Current Plans was less than 51mm, and those impacts are within the existing floodplain well removed from existing urban development including houses and roads. -- 11 of 30 -- 12 [22] He made an aerial comparison of the extent of predicted flood impacts for the Q100 ARI storm event resulting from development in accordance with the Publically Notified Plans and the Current Plans and concluded:- (a) there is very little difference in the extent of impact; (b) no existing houses are impacted by either proposal; and (c) there is no significant effect on existing roads. He did a similar exercise comparing the existing situation with development under the Current Plans and found that the extent of flooding in both cases was identical in large measure and that where there are differences they are small.9 500 ARI storm event [23] A similar comparison of maximum impacts/additional flooding caused by the development in accordance with the Publically Notified Plans and the Current Plans was carried out in relation to the 500 year ARI storm event measured from the same position as for Q100.10 [24] Mr Collins found that the additional flooding caused by development in accordance with the Publically Notified Plans was 44mm whereas for the Current Plans it was less than 55mms. Whereas there was an increase of 11mms, he said the 55mm impacts were within the existing flood plain well removed from the existing urban development including houses and roads. Further, he said that, because those impacts would only affect areas within the flood plain, it did not increase the 8 Collins affidavit 18 April 2012, paragraph 2 9 Ibid, paragraph 22 10 Ibid, paragraph 23 -- 12 of 30 -- 13 impacts of the proposed development because there would be no impact on existing habitable dwellings or any significant increase in inundation on any existing roads. [25] Again, he carried out an aerial comparison of the above predicted flood impacts and concluded in relation to development in accordance with either the Current Plans or the Publically Notified Plans that:- (a) there is very little difference in the extent of impacts; (b) no existing houses are impacted by either proposal; and (c) there is no significant effect on existing roads. As with the Q100 he compared Q500 with the existing situation and with the site developed in accordance with the Current Plans and concluded that the extent of flooding in both cases was identical in large measure but to the extent of any differences, they were small. January 2011 size storm event [26] Mr Collins next measured the predicted maximum impacts of developments in accordance with the Publically Notified Plans and the Current Plans by reference to a storm event of the size of the January 2011 flood event.11 Again, the measurement was taken from the same position as above. He found that the impact of development in accordance with the Publically Notified Plans was 30mm and for the Current Plans, 60mm. Again, he said those impacts would be within the existing flood plain well removed from existing urban development including houses and roads. 11 Ibid, paragraph 25 -- 13 of 30 -- 14 [27] He said that, despite the increase in the maximum impacts under the Current Plans, this would not increase the impacts of the proposed development because it would only affect areas within the flood plain not existing habitable dwellings. Further, it would not cause any significant increase in inundation on existing roads. [28] His aerial comparison of predicted flood impacts between the Publically Notified Plans and the Current Plans in relation to a January 2011 size storm event showed that a development in accordance with either the Current Plans or Publically Notified Plans:- (a) there is very little difference in the extent of impacts; (b) no existing houses are impacted by either proposal; and (c) there is no significant effect on existing roads. [29] As to the comparison of the 2011 storm event with the existing situation of the site; again, he said development in accordance with Current Plans the two cases are identical in large measure with any difference being small. Probable maximum flood event [30] Mr Collins next measured the maximum impacts of development in accordance with both Publically Notified Plans and Current Plans on the probable maximum flood (“PMF”), again measured from the same position as above. As to the Publically Notified Plans, development impacts were 5mm and for the Current Plans, 9mm, but again, Mr Collins said the impacts were within the existing flood plain well removed from the existing urban development including houses and roads. Again he said, whilst there was an increase in the maximum impact between the Publically Notified Plans (5mm) and the Current Plans (9mm), this did not -- 14 of 30 -- 15 increase the impacts of the proposed development because it only affects areas within the flood plain and does not impact on existing habitable dwellings or cause any significant increase in inundation on any existing roads. [31] Mr Collins‟ aerial comparison between impacts resulting from the development in accordance with the Publically Notified Plans and Current Plans led him to conclude that:- (a) there is very little difference in the extent of impact; (b) no existing houses are impacted by either proposal; and (c) there is no significant effect on the existing roads. His comparison of the PMF with the existing situation, again, led him to the view that development in accordance with either the Publically Notified Plans or the Current Plans would result in flooding impacts in large measure identical to each other, but where differences presented they were small. Mr Collins’ conclusions [32] Based on the above assessments Mr Collins concluded that the changes the subject of this application do not introduce new flooding impacts and that the predicted flooding impacts of the Current Plans development were acceptable. Mr Clark (Council) [33] The Council‟s flood expert engineer said12 the impact on flood patterns in the area which would result from the present proposed raising of the island platform and 12 Affidavit Clark 12 April 2012 -- 15 of 30 -- 16 bridge road to RL10.6m AHD would have a significantly greater impact on flood patterns in the area for events larger than Q100 than the impact which would result from the raising to only RL9.5m AHD, the height in the Publically Notified Plans. The raising to RL 10.6 m AHD, he says, would constrict flows to the main channel of the Pine River in those greater than Q100 flood events which flows would previously have moved over and around the island platform. This would increase levels and velocities adjacent to an upstream of the site. [34] Mr Clark said that the January 2011 flood event showed estimated peak levels based on debri marks in and around the site of between RL10.27 and 10.72m AHD, higher than Q100, the designed flood event (“DFE”) for the site. He said public concerns have heightened since the January 2011 flood event and that it would be reasonable to expect that residents in the two residential areas immediately upstream of the proposed development and those who experienced inundation of roads adjacent to their premises in January 2011, would be concerned about the flood impact resulting from a development in accordance with the Current Plans.13 [35] In relation to the evidence of Mr Collins and his comparison of development pursuant to the Publically Notified Plans and the Current Plans on each of the ARI 100 year, 500 year events and the January 2011 flood event, he said he had undertaken a preliminary review of Mr Collins‟ model and considered whether that model was the appropriate model for predicting flood impacts of the proposed development.14 13 Ibid 14 Ibid, paragraph 31 -- 16 of 30 -- 17 [36] On that issue he referred to the second joint witness statement he and Mr Collins signed where it was said to be appropriate to use the analysis and models detailed in a report of Worley Parsons being the lower Pine River flood study of 24 June 2009. That study calibrated the hydraulic (SOBEK) model against two historic flood events, namely, 1974 and 1989. By adopting the 2011 flood levels reflected by the debri rather than any comprehensive review,15 Mr Clark then looked at the record flood levels for the 1974, 1980 and 1989 floods and the outflow from the North Pine Dam and prepared this table:- Event Recorded levels near site (mahd) North Pine Dam outflow (m3/s) 1974 flood event 6.39 to 7.20 979 1989 flood event 7.12 to 7.71 1327 2011 flood event 10.27 to 10.72 2850 Those figures, he said showed that in the 2011 event the outflow from the North Pine Dam was twice that of the largest previous flood event in 1989. Mr Clark’s review of Mr Collins’ models [37] Mr Clark utilised the SOBEK model mentioned above and reviewed Mr Collins‟ models in relation to the January 2011 flood although that review was variously 15 Ibid, paragraph 28 -- 17 of 30 -- 18 described by him as preliminary16 and brief.17 He identified two main differences between his model and that of Mr Collins. Firstly, he questioned the peak outflow from Lake Kurwongbah used by Mr Collins. He said he did not know the basis for Mr Collins‟ figure and that it was substantially larger than the reported outflows. [38] The second area of difference related to Mr Collins‟ use of 36 hour duration hydrographs. Mr Clark said he did not know the basis for their use and they exhibited a substantially slower rise in flood level than would have been observed during the January 2011 flood event. [39] Mr Clark then went on to say that having reviewed the calibration of the SOBEK model upon which he relied and Mr Collins‟ modelling, he considered that:- (a) available data on the January 2011 flood indicated that the SOBEK model is underpredicting levels for an event of this magnitude; (b) due to this underprediction by the SOBEK model and the use by Mr Collins of the 36 hour hydrographs to determine inflows some questions arise as to the accuracy of Mr Collins‟ representation of the January 2011 flood event; (c) if SOBEK is underpredicting flood levels of January 2011 it is likely it is underpredicting flood levels for any designed flood events larger than the calibration used in the Lower Pine River Flood Study of which the SOBEK model formed part; and 16 Ibid, paragraph 38 17 Ibid, paragraph 47 -- 18 of 30 -- 19 (d) the SOBEK model should be recalibrated specifically in relation to the January 2011 event if it is to be used for assessment of design levels.18 Mr Clark’s comments on Mr Collins’ affidavit [40] For each of Mr Collins‟ comparative studies on the ARI 100 year, ARI 500 year, January 2011 storm events and his probable maximum flood (“PMF”) event, Mr Clark said:- 100 ARI storm event He agreed that the maximum impacts of the development in accordance with the Current Plans was less than those associated with the Publically Notified Plans. He also agreed that for the 100 ARI storm event as defined by the Lower Pine River Flood Study:- (a) there is very little difference in the extent of impacts; (b) no existing houses are impacted by either proposal; and (c) there is no significant effect on existing roads. In other words, he agreed with Mr Collins but qualified that agreement by saying that it was likely that the ARI 100 year storm event, when the modelling is reviewed, would result in increased levels which may change Mr Collins‟ conclusions. ARI 500 year storm event [41] In relation to Mr Collins‟ work on the ARI 500 year storm event Mr Clark said he had not had the time to review the modelling in detail but observed that Mr Collins‟ 18 Ibid, paragraph 43 -- 19 of 30 -- 20 material19 show that the impacts extend beyond the site boundary and as such, represent an increase in impact in the Current Plans when compared to the Publically Notified Plans. Mr Clark reiterated his view as to the likely result of a review of the modelling of the ARI 500 year event resulting in increased levels as he said in relation to Q100. January 2011 flood [42] As to Mr Collins‟ modelling for the January 2011 event he said as with the Q500 year event, that by reference to Mr Collins‟ material20 the impacts extended beyond the site boundary and represented a doubling in impact between the Publically Notified Plans (30mm) and the Current Plans (60mm). [43] Mr Clark did not agree with Mr Collins that the relevant impacts are within the existing flood plain well removed from existing urban development including houses and roads, and said that in relation to two locations upstream he understood the roads to have been inundated in January 2011 and both those locations were adjacent to habitable dwellings. Probable maximum flood event (PMF) [44] As to Mr Collins‟ modelling this event, Mr Clark said he had not had the time to review in detail the modelling of and did not specifically accept Mr Collins‟ figure of an impact of 5mm, but said he could infer from Mr Collins‟ material that it was less than 10mm. 19 Collins affidavit 26 March 2012, Exhibit NC-3 pp 24-25 20 Ibid, pp 28-29 -- 20 of 30 -- 21 Mr Clark’s conclusions [45] Mr Clark concluded that the Current Plans represent a substantial change to the Publically Notified Plans from a flood risk perspective because:- (a) the proposed raising of the island platform by 1.7m from the 2006 approved fill level of RL8.9 m AHD21 to RL10.6m AHD is much more than double the proposed raising of .6m being the difference between RL8.9 m AHD and the height of RL 9.5m AHD notified in the Publically Notified Plans and represents a substantial additional amount of fill in the flood plain; (b) the combination of raising the island platform and the bridge road access will have an impact on events such as the January 2011 flood thus increasing the impact which would result from the Publically Notified Plans development; (c) the impacts under the Current Plans are approximately double those under the Publically Notified Plans for an event equal to the January 2011 flood. This refers to Mr Collins‟ above opinions of an increase from 30 mm to 60 mm between the Publically Notified Plans and the Current Plans22; and (d) observed and modelled flood levels for an event such as the January 2011 event show that flooding in the vicinity of the site affected roads if not also private property. Mr Collins’ reply 21 Paragraph 7 above. 22 See para 7 above; T1.35.28-38. -- 21 of 30 -- 22 [46] Mr Collins responded to the above critique of his work23 and in relation to the conclusions of Mr Clark in the previous paragraph said: (a) the raising of the island platform was in response to the January 2011 flood and the Councils and Mr Clark‟s previous criticism is now requiring the platform to be elevated to a maximum of the defined flood level or the January 2011 flood event; (b) any impacts on habitable dwellings or road traffic ability under the Current Plans are not significant; (c) as to Mr Clark‟s assertion that the impacts were approximately doubled under the Current Plans, that impact is not significant for the reasons earlier set out; and (d) there is only one road affected by the development under the Current Plans and that road is equally affected by development under the Publically Notified Plans. Visual amenity [47] Two visual amenity experts were called, Mr Chenoweth for Comiskey and Mr Mongard for the Council. Mr Chenoweth (Comiskey) [48] Mr Chenoweth said that the narrow neck of land adjacent to One Mile Creek and the lagoon to the north of the proposed land bridge will not significantly change in 23 Affidavit 18 April 2012 -- 22 of 30 -- 23 visual appearance from their existing appearance consistent with the Publicly Notified Plans.24 [49] The fact that the raising and vegetating of the lagoon area is subject of the unsuccessful minor change application the subject of the decision of Jones DCJ of 17 February 2012 was now not being proceeded with does not mean the proposed development, either in accordance with the Publicly Notified Plans or the Current Plans, will introduce unacceptable visual amenity impacts. In his view, the existing mature trees along the One Mile Creek bank will screen the views from the houses located to the west of the elevated building platform. Further, additional screening will be provided by the proposed tree planting at the top of the fill batters around the northern perimeter of the platform. [50] Mr Chenoweth explained that the proposed development includes landscape screening using a combination of large existing trees, parkland shade trees and riparian tree species in the lower lying area between the elevated building platform and the bank at the North Pine River. Street trees are also incorporated between the road around the northern perimeter of the platform and the proposed residential lots adjacent to that road.25 [51] As to visual amenity, Mr Chenoweth expressed his conclusion as follows:- (a) The houses that are located to the west and south-west of the Island Platform are already quite well screened and there will be little or no visual impact of the proposed development on houses 24 Affidavit A Chenoweth 23 March 2012, paragraph 11 25 Ibid, paragraph 12 -- 23 of 30 -- 24 in these areas, regardless of whether the level of the Elevated Building Platform is filled by an extra 1.1m; (b) The Island Platform will be screened by the new houses and vegetation that is constructed and planted as part of Stages 1, 3 and 4 of the proposed development; (c) The proposed tree screening that is to be planted on the top of the fill batters around the Island Platform can also increase in height to screen the view from the north; and (d) The extra height of the Island Platform is minor compared to the mature height of existing and proposed screening trees in the low lying area, and will not decrease the effectiveness of these screening trees; (e) The consequential change in the height of the bridge to 10.6m AHD does not change the built form or design of the bridge. The location of the proposed bridge in relation to existing topography and vegetation obscures views from most surrounding residences and roads. When the proposed houses have been constructed in Stages 1, 3 and 4 and also on the Elevated Building Platform, the bridge will only be visible from within the subject site. Mr Mongard (Council) [52] Mr Mongard gave evidence26 that the site is viewed as an open rural landscape and flood plain area between built up urban areas and acts as a continuous visual break between areas of urban development. In his view, raising the Island Platform to 26 Affidavit 10 April 2012 -- 24 of 30 -- 25 10.5m will increase negative impacts upon the role the site plays as a visual break particularly because some parts of the island‟s development will never be able to be screened from elevated view points. [53] He said, with elevation of the platform, it will be significantly more visually exposed from the south and south-east aspect until the following Stages 3 and 4 are completed. As to the north/north-east aspect, he said those areas presently have panoramic views across the flood plain and the island pad is clearly visible from many existing positions. Once development occurs on the island it will be more visibly dominant from those elevated view points if the platform is raised to 10.6m.27 [54] As to the screening of the island platform by existing trees, Mr Mongard says there are three existing trees central to the northern bank of the platform but no trees close to the platform to offer immediate screening. He says the proposed screening trees will take some 15 years to reach sufficient maturity to begin to screen some of the houses and roofs particularly any two-storey homes.28 In his view the raising of the island platform by an additional 1.1m to 10.6m is a significant increase in the island‟s overall height and pointed to photographs from three points Daguilar Street, Mungarra Reserve and Gordon Jackson Lookout showing mounds of fill on the island above the presently approved level of 8.9m. [55] These images he says give a useful indication of the visual impact of the proposed raising of the platform.29 As to Mr Chenoweth‟s opinions on the raising of the level and the changing of the form of the bridge structure Mr Mongard says that the two 27 Ibid, pp 4-6 28 Ibid, paragraph 7 -- 25 of 30 -- 26 bridge proposals are very different in terms of visual impact. The original looks like a bridge incorporating arches and columns whilst the current proposal in his view will read like a road with culverts underneath it, looking not like a bridge structure but rather a heavy constructed land form. In his view the physical form of the currently proposed bridge is significantly different from the previous proposal and there are no trees to the sides of the bridge to screen it on viewpoints particularly the south and southeast from which it will be visible until development Stages 3 and 4 are completed. At night, given the requirement for safety illumination, the culvert structures will be more visible within the flood plain if raised by the 1.1 metres. [56] In summary Mr Mongard believes that the raising of both the island platform and the bridge structure to 10.6m would represent a significant increase in the visual impact on the development. He sees the current proposal as substantially different to the prior one in terms of visual amenity because parts of the island platform will never be able to be screened from elevated viewpoints and the roofs of houses will become more prominent in these areas thus increasing the impact in the long term. Further, any screening from trees will require at least 15 years to achieve effective screening on the prior proposal and longer than that to screen the platform on the current proposal. Prior to full tree maturity the island development will be highly visible and the raising of the height to 10.6m will significantly increase this unavoidable visual impact by elevating houses further into the skyline above existing trees which provide only partial screening of houses at the perimeter of the creek and on hill slopes. As to the bridge, its elevation as proposed will create more 29 Ibid, paragraph 8 -- 26 of 30 -- 27 visual impact until Stages 3 and 4 are completed and in the long term will create greater illumination at night given that it will be in the open.30 Mr Chenoweth’s response [57] In response to Mr Mongard, Mr Chenoweth says the screening of the island platform from the southeast will be the same whether the platform is elevated to the lower or proposed higher height. As to the photographic images referred to by Mr Mongard31, Mr Chenoweth said that the mounds of fill he refers to are approximately 4 m above the dominant existing level of the building platform and significantly higher than is proposed either in the publicly notified plans or the current plans. He disagrees that the elevation of 10.6m will cause a significant increase in visual impact. [58] As to the maturation process of the proposed tree screening, Mr Chenoweth sees no difference between development on the island platform either in accordance with the publicly notified plans or the current plans because, in both cases, the screening vegetation will be planted near the upper edge of the embankment and the growth rate and mature height of the trees, relative to the heights of buildings, will be the same in both cases. [59] As to the opinion expressed by Mr Mongard on the bridge structure, again, Mr Chenoweth disagrees that it will have any greater visual impact. In his view the raising of the building platform as proposed will not elevate the houses further into the skyline as Mr Mongard said because the only potential skyline intrusion by 30 Ibid, paragraph 11 31 Mongard affidavit, paragraph 8 -- 27 of 30 -- 28 houses will be at the northwest corner which will be fully screened by new parkland trees. Although the houses will be further above existing trees, as seen from elevated viewpoints the trees in question are 12 to 15m tall mainly Camphor Laurels between Mungarra Reserve and the platform. Along the riverbank there are 25 to 30 m tall Eucalypts and the new houses will be below these canopy heights whether or not constructed in accordance with the publicly notified plans or the current plans. [60] From the elevated viewpoints referred to by Mr Mongard, the proposed screening will also be above the Camphor Laurel tree canopies and will provide screening in the gaps between the tall Eucalypts. Consideration of expert evidence [61] As to the flooding expert evidence, I prefer the evidence of Mr Collins to that of Mr Clark. Mr Clark agrees with Mr Collins in relation to the defined flood event which is a Q100 event and his concerns stem from the potential impacts from events larger than the DFE. Even then however, he did not express disagreement with Mr Collins‟ conclusions in relation to the projections of Mr Collins for the 500 year, January 2011 or the Probable Maximum Flood (PMF) projected flood event. Mr Clark‟s central concern was that the modelling upon which present levels are struck may well be inadequate given the affect of the 2011 flood event. That may well prove to be the case but is not a matter for determination in this application. Importantly, Mr Clark accepts Mr Collins‟ conclusion in relation to the maximum impacts of a Q100 event. In relation to the Q500 event, he had not reviewed Mr -- 28 of 30 -- 29 Collins‟ work in detail same was the case in relation to the PMF impacts.32 He expressed reservations in relation to the January 2011 event model of Mr Collins but did not bring forward any model of his own to contradict it. [62] I accept the evidence of Mr Collins that the increased elevation of the island platform, bridge and road approach will not introduce new flooding impacts. Visual amenity impacts [63] In relation to the issue of any increased visual impacts, I prefer the evidence of Mr Chenoweth to that of Mr Mongard. In relation to the screening aspect, Mr Mongard seems to be mainly concerned with the length of time it will take for the relevant trees to mature to the point of effective screening. That of course is a consideration with any landscaping. Its effect will never be instant. The evidence of Mr Chenoweth, which I accept, demonstrates to me that the difference between the visual impact of the development in accordance with the Publicly Notified Plans and the Current Plans will not be significant so far as the vegetation screening is concerned. [64] As to the possible impact of the proposed new bridge structure and road is concerned, again I accept the evidence of Mr Chenoweth in preference to that of Mr Mongard that neither the increase in the height of the bridge and road nor its design would not have a greater visual impact than the structure proposed under the Publicly Notified Plan. 32 Clarke affidavit, pp 44 and 45 -- 29 of 30 -- 30 Conclusion on Minor Change Issue [65] In light of my above findings I am satisfied that the changes proposed are minor changes within meaning of that term in SPA s 350(1)(d). In forming this opinion I am mindful of the words of Robin QC DCJ in Gaven Developments Pty Ltd v Scenic Rim Regional Council33 where he said: “Section 4.1.52(2)(b) should not be construed so restrictively that it becomes unreasonably difficult for developers to refine their proposals to accommodate changes inspired by their own more mature consideration or by suggestions of others, without being forced back to the beginning or some such earlier stage in the process of seeking and obtaining a development approval.” The proposed changes must be considered in light of the entire Development Application, which in this case is the development of 216 allotments contained in Residential A and Rural Zones under the Scheme. The Statutory Guideline 06/09 mentioned above is a guide rather than a code to assist interpretation of the meaning of substantial change. It must bear its ordinary meaning. In light of the evidence I have accepted, I am not convinced that either of the proposed changes dramatically change the built form in terms of scale, bulk and appearance, or introduce new impacts or increases the severity of known impacts. Accordingly, Comiskey‟s application for a change to the proposal is granted. 33 [2010] QPELR 385 at 391 [20]. -- 30 of 30 --