Dempsey v Brisbane City Council & Ors [2012] QPEC 2 [2012] QPELR 396

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Dempsey v Brisbane City Council & Ors [2012] QPEC 2 PARTIES: TONY DEMPSEY (Appellant/Applicant) AND BRISBANE CITY COUNCIL (Respondent) AND QUEENSLAND HERITAGE COUNCIL (Co-Respondent) AND LOUISE AND CARL YUNKER (First Co-Respondents by election) AND LUCINDA SWINDLE (Second Co-Respondent by election) AND BRUCE HUNTER (Third Co-Respondent by election) AND THE BODY CORPORATE FOR FRESHWATER APTS CTS 28886 (Fourth Co-Respondent by election) FILE NO/S: 942/08 DIVISION: Planning and Environment PROCEEDING: Hearing of an application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 9 February 2012 DELIVERED AT: Brisbane HEARING DATE: 6 February 2012 JUDGE: RS Jones DCJ -- 1 of 8 -- 2 ORDER: 1. The determination of the court is that the changes to the proposed development are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009. 2. I will hear from the parties as to further orders if necessary. 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 a multi-unit dwelling – original proposal for six units over six storeys – developer now proposes four units over four storeys Sustainable Planning Act 2009 Sustainable Planning Bill 2009 Explanatory Note Statutory Guideline 06/09 11 December 2009 ISPT Pty Ltd as Trustee v Brisbane City Council (2011) QPEC 31 Pro Active Developments Pty Ltd v Ipswich City Council & Anor (2011) QPEC 52 Maxen Developments Pty Ltd v Hervey Bay City Council (2005) QPEC 091 Indigo (Palm Beach) Landowner Pty Ltd v Gold Coast City Council & Ors (2011) QPEC 27 K Page Main Beach Pty Ltd v Gold Coast City Council & Ors (2010) QPELR 488 Heritage Properties Pty Ltd v Redland Shire Council & Ors (2010) 175 LGERA 146 APPEARANCES: Mr G.J. Lyons of counsel instructed by Norton Rose Australia for the appellant/applicant Mr A. Chadwick, solicitor from Brisbane City Legal Practice for the respondent Ms P. Pavey, barrister from Crown Law for the co- respondent Mr M.J. Connor, solicitor from Connor O’Meara for the first and second co-respondents by election Mr M. Woods, solicitor from Woods, Prince Lawyers for the third and fourth co-respondents by election [1] This application is brought by the appellant/applicant for orders to the effect that changes to the 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, I consider it appropriate to make the orders sought. Accordingly the orders of the court will be: -- 2 of 8 -- 3 1. The determination of the court is that the changes to the proposed development are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009. 2. I will hear from the parties as to further orders if necessary. Background [2] At all relevant times, the subject land was included within the Medium Density Residential Area of the respondent’s planning scheme, Brisbane City Plan 2000. The land is located in New Farm and is within the Lamington Street precinct of the Newstead and Teneriffe Waterfront Local Plan. Access is via Wellsby Street. A significant feature of the land is that it has frontage to the Brisbane River. Also of significance is that located on the land is a heritage-listed building known as “Amity House”, which is a single storey timber building constructed in or about 1892. [3] On or about 7 September 2006, the appellant/applicant lodged a development application with the respondent seeking a development permit for a material change of use for a multi-unit dwelling and preliminary approval for building works. On or about 12 December 2006, the Queensland Heritage Council issued its concurrence agency response advising the respondent to refuse the application pursuant to s 3.5.11(4) of the Integrated Planning Act 1999 (IPA). In substance, the co-respondents’ position was that it was not satisfied that there was no prudent and feasible alternative to the carrying out of the development as it was then proposed. On 13 March 2008, the respondent advised the appellant that it had refused the application. Numerous grounds were given for the refusal, but it is sufficient for the purposes of this proceeding to note that they were largely dominated by references to “Amity House” and visual amenity issues. [4] The essential features of the changes to the development are identified in the affidavit of Mr Sean Goodwin filed 19 January 2012. Mr Goodwin identifies the changes in these terms: “In comparing the Original Plans and the Four-Storey Plans, the following changes are identified: (1) A reduction in the number of storeys from six of four; (2) A reduction in overall height of the proposed building. … Accordingly, the reduction in height between the Original Plan and the Four-Storey Plan is: (a) from RL24.700 to RL18.300 at the roof terrace, representing a 6.40 metre reduction in height to the paved roof terrace; (b) from RL25.750 to RL19.350 to the top of the roof terrace balustrades representing a 6.40 metre reduction in height of the overall bulk of the building; and (c) from RL25.750 to RL19.900 at the roof pop-up in the south-east corner of the proposed building, representing a 5.85 metre reduction in height to the building’s highest point; -- 3 of 8 -- 4 (3) A reduction in the number of units from four to six; and (4) A reduction in site gross floor area from 1461 square metres to 991 square metres, representing a 32.2% decrease in site gross floor area.” Features of the development which did not change included the building footprint, vehicle access arrangements and the number of car parks.1 [5] Both Mr Lyons, counsel for the appellant/applicant and Mr Connor, solicitor for the first and second co-respondents, identified the more substantive changes as being the reduction of the number of storeys from six to four, the reduction of the number of units from six to four, and a reduction of the gross floor area of about 32.2%.2 To an extent, the visual effect of the changes to the proposed development can be gleaned by reference to various drawings and montages contained in Mr Goodwin’s affidavit.3 [6] The application is supported by the respondent. Mr Chadwick essentially adopting the submissions made by Mr Lyons. The co-respondent, the Queensland Heritage Council, neither supports nor opposes the application and will abide the orders of the court. The application is opposed by all of the co-respondents by election, with Mr Wood, solicitor for the third and fourth co-respondents by election, essentially adopting the submissions made by Mr Connor. The legislation and supporting material [7] Section 350 of SPA relevantly provides: “Meaning of minor change (1) A minor change in relation to an application, is any of the following changes to the application – … (d) a change that— (i) does not result in a substantially different development.” [8] As Mr Connor pointed out, it is no longer a feature concerning a minor change in this context that consideration must be given to the likelihood of the change provoking further submissions objecting to the proposed change. [9] Both Mr Lyons and Mr Connor referred me to the Sustainable Planning Bill 2009 Explanatory Notes and Statutory Guideline 06/09 in both their written and oral submissions. At p 184 of the Explanatory Notes, it is stated that Part 6 of SPA sets out a simpler, clearer and more flexible process for change in development applications than the process provided under IPA. Mr Connor also referred me to p 185 of the Notes, where it is provided that, generally speaking, the phrase “minor 1 Affidavit of Mr Goodwin at paras 11 and 12. 2 Mr Lyons’s written submissions at para 6. Mr Connor’s written submissions at para 13. 3 Pp 28, 29, 38, 39, 52, 53, 66. See also Exhibit 1. -- 4 of 8 -- 5 change” will be given its commonsense meaning and will need to be considered on the facts of each particular case. The Explanatory Notes4 then go on to provide: “However, changes which may result in a development being substantially different include:  changes which involve a new use (for example, an application for a material change of use for a cinema which is changed to include a residential component);  changes which involve a significant increase in gross floor area;  changes which involve a significant increase in the number of lots or storeys above ground level proposed.” [10] Turning then to Statutory Guideline 06/09, its purpose is said to be for assisting applicants and assessment managers to determine if proposed changes to a development application or development approval make it a substantially different development. The Guideline then goes on to provide:5 “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 … ;  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.” [11] It was accepted that the only relevant part of the Statutory Guideline was that referring to dramatic changes in the built form in terms of scale, bulk and appearance. However, as Mr Connor correctly points out, the Guidelines are just that, they are not meant to be definitive nor exhaustive. I also note that unlike the examples given in the Explanatory Notes, the changes identified in the Policy do not expressly refer to changes which result in increases in scale, bulk and appearance. However, for reasons which will become apparent, I consider it significant that the changes involved here amount to a reduction in the scale and bulk of the proposal. The overall appearance does not materially change in my opinion. Conclusions 4 At pp 185-6. 5 At pp 3-4. -- 5 of 8 -- 6 [12] Not surprisingly, Mr Lyons’s submissions in support of the application tend to focus on the reduction in size of the proposal. In his submission he argues:6 “(c) The focus of the Statutory Guideline is on excluding or controlling changes which makes a proposal larger or bulkier on one with more severe impacts or heavy demands on services and the like; and (d) It is appropriate to construe s 350 of the SPA in a way that accepts as minor such changes that result in reductions of impact of developments and it is clear if one reads the Statutory Guidelines that the changes which cause concern are those which increase the bulk or scale of developments or increase their impacts.” [13] While that submission is accurate in part, it is, in my respectful view, not accurate in all respects. While it might fairly be said that the Explanatory Notes tended to focus on increases in the size of the proposal, on my reading of the Guideline, while there is reference to “additional” impacts, when reference is made to the scale bulk and appearance of a development it is not restricted to only increases but is concerned with changes to the built form in terms of scale, bulk and appearance. [14] In this context I also agree with the thrust of Mr Connor’s argument that it would be wrong to focus only on the magnitude of the changes. The question that has to be asked is whether the changes result in a substantially different development having regard to the nature and degree of the changes. [15] During the course of his submissions Mr Connor referred me to the definition of “substantial” in the Macquarie Dictionary (2nd ed.). I was also referred to a number of authorities where the meaning of the word substantial was considered. I do not intend to deal with those cases in any detail. As was observed in Re: Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd and 2Day-FM Ltd,7 the meaning of such an imprecise and ambiguous word is highly dependent on the context in which it appears. [16] As Mr Lyons quite properly conceded, the mere fact that the relevant changes to the dimensions of the building result in an overall reduction of scale and bulk is not of itself determinative. He accepted that it was less likely that an increase in the scale of the development of in the order of 30% would be considered a minor change. In my view, as the legislation is currently drafted, it might be difficult to resist an argument that, by way of example, a 50% change in the dimensions of a development was a minor change notwithstanding that it was a reduction in the scale of development. A perhaps unintended consequence might be that the more the dimensions of a development are reduced, the stronger the argument might become that the change is not minor. 6 Written submissions para 12, subparas (c) and (d). 7 (1982) FCA 2006. In K Page Main Beach Pty Ltd v Gold Coast City Council & Ors (2010) QPELR 488 at 489 Robin QC DCJ referred to the word “substantial” as being a notoriously difficult expression. -- 6 of 8 -- 7 [17] Whether a change results in a substantially different development is a matter which should be looked at broadly and fairly.8 There are a number of decisions of this court where significant changes to developments have still been considered minor for the purposes of s 350 of SPA. In Pro Active Developments Pty Ltd v Ipswich City Council & Anor9 a reduction in the number of lots in a proposed subdivision from 35 to 22 over a reduced area of land was considered to be a minor change. In Indigo (Palm Beach) Landowner Pty Ltd v Gold Coast City Council & Ors10 the court was concerned with a unit development which was to be reduced from 13 levels to seven and a consequential reduction in the number of residential units from 57 containing 97 bedrooms to 52 units containing 81 bedrooms. As Judge Robin QC noted, minds might differ about whether such a change was a “dramatic” one.11 His Honour then went on to say:12 “… it is clear if one reads the guidelines that the changes which cause concern are those which increase the bulk and scale of developments or increase their impacts. I think it is appropriate to construe and apply s 350 in that way, particularly if one bears in mind the injunctions at the beginning of the Act in sections 3, 4 and 5 as to how the court and other entities performing functions for the purpose of the Act ought to act to advance its purposes. …”13 [18] Of course, the fact that significant changes have been deemed minor for the purposes of s 350 of SPA in other cases is not determinative. Each case has to be dealt with on its own facts, circumstances and merits. [19] As Mr Lyons and Mr Connor both accepted, the meaning of “minor change” in the context of this application was sufficiently ambiguous or obscure to justify consideration of extrinsic material.14 And, notwithstanding my earlier observations,15 I, with respect, generally agree with the remarks made by his Honour Judge Robin QC in Indigo (Palm Beach) to the effect that when regard is had to the extrinsic material, it is tolerably clear that any increases in scale and bulk and in demands on public services and infrastructure are of particular significance in determining whether a change is minor for the purposes of s 350(1)(d) of SPA. As Rackemann DCJ said in Heritage Properties:16 8 Heritage Properties Pty Ltd v Redland City Council & Ors (2010) 175 LGERA 146 at 152. 9 (2011) QPEC 52 at p 2. 10 (2011) QPEC 27. 11 A reference to the words used in the third dot point in the Guideline 06/09. 12 At pp 4-5. 13 In Maxen Developments Pty Ltd v Hervey Bay City Council (2005) QPEC 091 his Honour Judge Robin QC considered a community title development involving a change from a 50 unit development to a 25 dwelling development (among other things) to be a minor change for the purposes of the Act. Also in ISPT Pty Ltd as Trustee v Brisbane City Council & Ors (2011) QPEC 31 his Honour again referred to the general focus of the guidelines being directed at changes which make a proposal larger or bulkier or one with more severe impacts or heavier demands on services and the like. 14 Section 14B Acts Interpretation Act 1954. 15 At para [15]. 16 At p 149. -- 7 of 8 -- 8 “… the focus of the list in the guideline is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts.” [20] On balance, while I accept that the changes to the proposal identified above could not be described as anything other than significant, they do not, either separately or in combination, result in a substantially different development. No change to the use is involved. And, while the scale and bulk of the proposal has been significantly changed, broadly speaking its overall appearance to the observer will be materially the same; that is, a multi-floored residential unit development, albeit of four storeys and not six. I should point out though, consistent with my observations in paragraph 15, I consider the degree of change is tending towards the limits of what might, in the context of this application, be considered to be a minor change. [21] Mr Connor correctly pointed out that no evidence exists to show that the changes would result in less impacts and demands on public services and infrastructure. While that observation is correct, it is sufficiently clear to me that the changes will not result in any increased demands or impacts. And, it is clear that the visual impact of the proposal will be reduced by the loss of two storeys. Orders [22] For the above reasons, I order as follows: 1. The determination of the court is that the changes to the proposed development are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009. 2. I will hear from the parties as to further orders if necessary. -- 8 of 8 --