Comiskey Group (a firm) v Moreton Bay Regional Council & Anor [2012] QPEC 4

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Comiskey Group (a firm) v Moreton Bay Regional Council & Anor [2012] QPEC 4 PARTIES: COMISKEY GROUP (A FIRM) (Applicant/Appellant) AND MORETON BAY REGIONAL COUNCIL (Respondent) AND CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (Co-Respondent by election) FILE NO/S: BD210/2010 DIVISION: Planning and Environment Court of Queensland PROCEEDING: Hearing of an application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 17 February 2012 DELIVERED AT: Brisbane HEARING DATE: 10 February 2012 JUDGE: RS Jones DCJ ORDER: The application is refused. CATCHWORDS: APPLICATION – whether change to proposed development is a minor change for the purposes of s 350 of the Sustainable Planning Act 2009 – proposed development involves the creation of a total of 216 residential allotments – part of subject land lies in the flood plain of the North Pine River – part of residential development to be located on an elevated platform within the flood plain –development application refused by the respondent – refusal under appeal by applicant – substantive changes from original application are an increase in the level of fill, a change in the detail and construction of a bridge crossing the flood plain and additional filling over an area within the flood plain – one proposed change requires referral to an additional referral agency -- 1 of 8 -- 2 Sustainable Planning Act 2009 ss 350, 440, 441, 820 Integrated Planning Act 1997 ss 4.1.52(2), 4.1.5A Sustainable Planning Bill 2009 Explanatory Notes Statutory Guideline 06/09 11 December 2009 Heritage Properties Ltd v Redlands City Council [2010] QPEC 19; (2010) 175 LGERA 146 COUNSEL: Mr J. Haydon for the applicant/appellant Mr A. Skoien for the respondent No appearance on behalf of the co-respondent by election SOLICITORS: HWS Lawyers for the applicant/appellant Legal Services Branch of the Moreton Bay Regional Council for the respondent No appearance on behalf of the co-respondent by election [1] This application is brought by the applicant for orders that changes to a proposed development constitute a ―minor change‖ for the purposes of s 350 of the Sustainable Planning Act 2009 (SPA). For the reasons set out below the application is refused. Background [2] The subject land is situated at Lawnton and, generally speaking, is bounded by Todds Road to the south, the North Pine River to the north, One Mile Creek to the west and residential development and some vacant land to the east and south. [3] The proposed development involves a staged residential subdivision of in excess of 200 allotments. While the majority of the allotments are to be located to the south of a part of the North Pine River flood plain, a number of them are to be located on an elevated area of land situated within the flood plain.1 The proposal is impact assessable. [4] The development application for a material change of use and for a development permit for reconfiguring a lot was refused by the respondent. On 21 January 2010, the applicant filed a notice of appeal appealing that refusal. Pursuant to the transitional provisions of SPA, the substantive appeal is to be heard and determined under the provisions of the Integrated Planning Act 1997 (IPA). Pursuant to s 4.1.52(2)(b) of IPA, this court may only deal with a changed development application if the change is a ―minor‖ one. It is not in dispute that, notwithstanding that the substantive appeal will be dealt with under IPA, for the purposes of this application s 350 of SPA is applicable. That section relevantly provides: ―Meaning of a minor change (1) A minor change in relation to an application, is any of the following changes to the application— 1 See Exhibit 1 (Book of Plans) and Exhibit 7. -- 2 of 8 -- 3 … (d) a change that— (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 … (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). (3) Application of the applicable law does not stop a change mentioned in subsection (1)(d)(ii) or (iv) from being a minor change only because the applicable law, if applied to the application as originally made, would require referral to any additional referral agencies or involve impact assessment.‖ The changes to the proposal [5] The relevant changes to the proposal are:2 (i) a change in the design and construction of the proposed bridge connecting the subdivision to the south to the subdivision on the island pad situated in the flood plain; (ii) part of the currently proposed lagoon to the north of the bridge is to be filled to RL 5.8 metres AHD, (iii) an increase in the level of fill on the island pad of about 1.1 metres from RL 9.5 metres AHD to RL 10.6 metres AHD. (iv) filling or ―back filling‖ to the west of the island pad to a level not less than RL 6.8 metres AHD. [6] Whether or not a change (changes) to a proposed development is a minor change for the purposes of s 350 involves consideration of the nature and extent of the proposed development and questions of degree. As Rackemann DCJ observed in Heritage Properties v Redland City Council & Ors,3 whether changes result in a substantially different development is a matter which should be looked at broadly and fairly. The bridge 2 Paragraph 14 of Mr Haydon’s written submissions. Also compare Plan 1 (current design) with Plan 4 (original design) in Exhibit 1. 3 (2010) 175 LGERA 146 at 152. -- 3 of 8 -- 4 [7] The bridge as originally proposed is described as a Hume Bebo Arch Bridge, which spanned the flood plan connecting the island pad area to the balance of the subdivision to the south of the flood plain.4 The new bridge is described as a Land Bridge and Culverts.5 The design of the bridge is significantly different. The original bridge involved a series of arches which supported the access road at a level of RL 9.5 metres AHD. The new bridge incorporates 10 box culverts which will support the road at presumably the level of the island pad. That is, at or about RL 10.6 metres AHD. [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 subdivision. [9] The increase in elevation of the bridge will not materially affect the visual amenity of the development. However, according to Mr Clark, a civil engineer relied on by the respondent, the raising of the bridge by about 1.1 metres will significantly change the flow patterns (compared to those resulting as a consequence of the original proposal) around the elevated island pad for flood events greater than Q100.6 Mr Collins, the engineer relied on by the applicant, strongly disputes Mr Clark’s concerns.7 Neither Mr Collins nor Mr Clark were required for cross examination. The filling of part of the lagoon to the north of the bridge [10] As I understand it, the original application did not involve any filling of the lagoon area north of the proposed bridge. However, during a significant flood event which occurred on 14 October 2010, flood waters backed up One Mile Creek (which runs along the western boundary of the proposal) and entered into the lagoon area to the north of the bridge. It was considered by consultants to the applicant that the filling of at least part of this area will materially reduce the risk of erosion from significant flood events. [11] While these works do not involve a new use or materially affect the bulk, scale or appearance of the development, a direct consequence is that it would require filling below RL 5 metres AHD.8 It is not disputed that filling below RL 5 metres AHD will require referral of those works to the Department of the Environment and Resource Management (DERM). To adopt the words of Mr Haydon, counsel for the applicant, these works ―disclose that an acid sulphate soil issue arises and that calls up a referral agency‖.9 [12] Relying on s 350(1)(d)(ii) of SPA Mr Skoien, counsel for the respondent, contends that that is the end of the matter. According to Mr Skoien, the fact that the proposed changes include a change which requires referral to a referral agency that, up until the changes, had not been involved, is fatal to the application. However, relying on subsections (2) and (3) of s 350, Mr Haydon contends that the new requirement that the application be referred to DERM as an advice agency is not fatal. In this regard, 4 See Exhibit 8 p 5. 5 See Exhibit 8 p 6. 6 Exhibit 5 para 10. 7 His affidavit filed 7 February 2012, para 14. 8 See Exhibit 1 p 2 s 4. 9 T 1-9 L 40. -- 4 of 8 -- 5 Mr Haydon emphasised the different roles and responsibilities of advice agencies and concurrence agencies under IPA. [13] In my opinion, subsections (2) and, in particular, (3) of s 350 of SPA do not have the meaning and effect contended for by Mr Haydon. In this case, the trigger for the referral has nothing to do with any changes to the ―applicable law‖ but is instead a direct consequence of proposed new works. While I might be prepared to accept that the wording of s 350(2) and (3) is sufficiently ambiguous or obscure to justify a consideration of extrinsic material,10 the Explanatory Notes to the Sustainable Planning Bill 2009 are clearly against the position adopted by the applicant. These Notes relevantly provide: ―Subclause (2) provides that, for determining a minor change under subclause (1)(d) the planning instruments or law in effect at the time the change was made apply. That is, in determining whether, if the application were remade including the change, it would trigger any new referral agencies or require impact assessment, the planning instruments that existed at the time the change is made, or the legislation or law in force at the time the change is made (the applicable law) must be considered. However, subclause (3) seeks to clarify that what is relevant is whether it is the change itself which causes the need for referral to additional referral agencies or impact assessment. It is not the intention to prevent a change being made simply because, since the original application was made, there has been a change to the legislation or planning instrument, which has the effect that the application as originally made would now trigger additional referral agencies or require impact assessment – it is only intended to prevent changes being made if the change itself is the reason why the new referral agency is triggered or impact assessment is required.‖ (emphasis added) [14] In the event that this construction point was determined against his client, Mr Haydon submitted, to the effect, that this court nonetheless still retained a discretion to decide that the change was still a minor change for the purposes of s 350. In this regard, Mr Haydon relied on ss 440, 441 and 840 of SPA: ―440 How court may deal with matters involving non-compliance (1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with. (2) The court may deal with the matter in the way the court considers appropriate. (3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.‖ 10 Section 14B Acts Interpretation Act 1954. -- 5 of 8 -- 6 441 terms of orders etc. The court may make an order, give leave or do anything else it is authorised to do on the terms the court considers appropriate (emphasis added). 820 Proceedings for particular declarations and appeals (1) If, in a proceeding for a declaration mentioned in section 818(2) or an appeal mentioned in section 819(4) or (6), the court finds a provision of repealed IPA, or another Act in its application to repealed IPA, has not been complied with or has not been fully complied with, the court may deal with the matter in the way the court considers appropriate. (2) For a proceeding for a declaration mentioned in section 818(2) or an appeal mentioned in section 819(4) or (6), section 457(2)(a) applies. (3) To remove any doubt, it is declared that subsection (1) applies in relation to a development application that has lapsed or is not a properly made application.‖ [15] These sections do not assist the applicant. It is of course accepted that the discretion given to the court is a very wide one and that ameliorative and excusatory powers such as these should be construed in a generous way so as to not unduly restrict their intended aims. It is also noted that the discretion now available to the Court is wider than that provided under s 4.1.5A of IPA. However, the fact of the matter is that ss 440 and 820 have no relevance in the circumstances of this application as it does not involve compliance, non-compliance or partial compliance with a statutory provision. Section 441 gives wide powers to this court to make orders it considers appropriate in the circumstances of each case. However, any order the court makes must be made in accordance with the relevant law. To make the orders sought by the applicant would be in direct conflict with and defeat the intent of s 350(1)(d)(ii) of SPA and, accordingly, would not be ―authorised‖. [16] The construction of s 350(1)(d)(ii) is sufficient to warrant dismissal of the application, in my opinion. However, for the possible benefit of the parties I will briefly consider some of the other matters raised. [17] On 11 December 2009, the Queensland government published Statutory Guideline 06/09. The purpose of the Guideline is said to be to provide guidance on what may constitute a substantially different development in the context of the meaning of a minor change application under s 350 of SPA. Under the heading ―What constitutes a substantially different development?‖, the Guideline goes on to say: ―Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would therefore not be a minor change or a permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change would result in a substantially different development and is not intended to be exhaustive. -- 6 of 8 -- 7 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. … ; 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 … ; impacts on infrastructure provision, location or demand.‖ (emphasis added) Only the third and seventh of the matters raised in the Guidelines are relevant to this application. Of course, as the Guideline itself identifies, it is not meant to be either definitive or exhaustive. [18] The proposed filling north of the bridge would not result in a substantially different development11 by dramatically changing its built form in terms of scale, bulk and appearance.12 However, it does introduce a new impact, namely that identified by Mr Haydon as ―acid sulphate soil issues‖. It should be noted, however, that this issue would seem to be able to be appropriately managed and controlled. [19] Of significance concerning these works is that while Mr Collins, contends that in a Q100 or lesser flood event there would not be any significant adverse impacts and in a major flood event exceeding Q100 the impacts associated with this filling would be ―acceptable‖,13 Mr Clark is of a different view despite there being a lack of detailed analysis at this stage.14 [20] In this context, I should note that there is likely to be some debate about the relevance (if any) of flooding events exceeding Q100 under the respondent’s planning scheme at the substantive hearing of the appeal. The raising of the island pad [21] The additional filling of the island pad is to address concerns raised by the relevant experts about scour, erosion and ―the safety of future residents‖15 in significant flood events. In the recent major flood of 11 January 2011, the island pad was inundated. Although at that time, the building platform on the pad had not been filled to its then proposed level of RL 9.6 metres AHD. 11 Section 350(1)(d)(i). 12 Guideline 06/09, at 4. 13 His affidavit filed 7 February 2012, para 13. 14 Exhibit 5 para 9. 15 Mr Collins’ affidavit filed 7 February 2012, para 10. -- 7 of 8 -- 8 [22] On the evidence before me I accept that the raising of the island pad by 1.1 metres would have no material affect on the scale, bulk or appearances 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. [23] However, while Mr Collins is of the opinion that, based on his analysis of the modelling, the combined changes to the proposal will have no significant adverse impacts or acceptable impacts,16 Mr Clark disagrees.17 The filling at One Mile Creek [24] As I understand the evidence, this filling is also intended to reduce the potential for, or impact of, erosion in significant flood events. As is the case concerning the fill north of the proposed bridge, these works will not dramatically change the built form in terms of scale, bulk and appearance. [25] The real issue between the parties concerning these works is again about potential adverse impacts in the event of a flood exceeding Q100. According to Mr Collins, neither this filling nor the filling of the lagoon north of the bridge will have any significant adverse impacts on flood plain storage or the conveyance characteristics of the floodplain or elsewhere.18 While Mr Clark accepts that limited filling in this area is unlikely to have any significant adverse impacts, more extensive filling could adversely affect floodplain storage and conveyancing characteristics.19 Conclusions [26] For the reasons given20 I consider that the application must fail as a consequence of the filling of land below RL 5.0 metres AHD. [27] However, even if I am wrong about the construction of s 350(2) and (3) and ss 440, 441 and 820 of SPA, I would decide the application in favour of the respondent. [28] It is true that this application is not the proper vehicle for determining the merits of the appeal, including by way of examples, whether flood events exceeding Q100 are relevant in the context of the respondent’s planning scheme, whether the proposed changes will have the outcomes intended by the applicant and whether or not the proposal will have a material effect on floodplain storage and conveyancing characteristics. It is also true that many of Mr Clark’s opinions (or concerns) are couched in very general terms. However, given the level of unresolved differences of opinion between Mr Collins and Mr Clark, I am not sufficiently satisfied that the proposed changes would not result in a substantially different development by introducing significant new impacts and/or increasing the severity of known impacts. [29] For the reasons given the order of the court is that the application is refused. 16 His affidavit filed 7 February 2012, paras 10-13. 17 Exhibit 5 paras 8-10. 18 His affidavit filed 7 February 2012, paras 15 and 16. 19 His affidavit filed 2 February 2012, para 26. 20 At paras [10]-[16]. -- 8 of 8 --