Auspacific Engineers Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 117

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Auspacific Engineers P/L v Scenic Rim Regional Council & Ors [2010] QPEC 117 PARTIES: AUSPACIFIC ENGINEERS PTY LTD ACN 105 205 776, ELBINA PTY LTD ACN 104 956 327 AND WINTEN PTY LTD ACN 001 034 108 (appellants) v SCENIC RIM REGIONAL COUNCIL (FORMERLY BEAUDESERT SHIRE COUNCIL) (respondent) AND CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 (first co-respondent by election) AND CHIEF EXECUTIVE OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY (second co-respondent by election) AND TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INCOROPRATED (third co-respondent by election) FILE NO: BD 2151 of 2006 DIVISION: Appellate PROCEEDING: Preliminary hearing as to whether changes are “minor change” ORIGINATING COURT: Planning and Environment Court at Brisbane DELIVERED ON: 5 November 2010 DELIVERED AT: Brisbane HEARING DATE: 2 November 2010 JUDGE: Robin QC DCJ ORDERS: 1. Changes determined to be “minor change”. 2. Appellants may proceed on the basis of their -- 1 of 10 -- 2 changed application. CATCHWORDS: No “substantially different development” where increase from 224 to 298 residential lots within a reduced development footprint – development now to connect with town water and sewerage – alleged issue of water availability Sustainable Planning Act 2009, s 350, s 367, s 819, s 821 Integrated Planning Act 1997, s 4.1.52 Australand Holdings Ltd v Gold Coast City Council [2006] QPEC 30, considered Blazen Pty Ltd v Brisbane City Council [2010] QPEC 28, considered Clift & Anor v Gold Coast City Council [2005] QPEC 106, considered Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 385; [2009] QPEC 119, cited Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510; [2010] QPEC 19, considered Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386, cited Sumvista Pty Ltd v Redland Shire Council [2005] QPEC 076, considered COUNSEL: C Hughes SC with M Williamson for the appellants N Loos for the respondent K Wiltshire appeared as the representative of the third co- respondent by election SOLICITORS: DLA Phillips Fox for the appellants Corrs Chambers Westgarth for the respondent Crown Law for the first co-respondent by election Department of Environment and Resource Management for the second co-respondent by election [1] By Judge Rackemann’s order of 24 September 2010, the court is charged with determining whether changes made to the appellants’ development application are minor within the meaning of s 4.1.52 of the Integrated Planning Act 1997 (IPA), the issues being limited to “those issues raised in the letter of the third co-respondent to the solicitors for the appellants dated 23 September 2010.” The letter, which became Exhibit 2, provides: “1. TMPA opposes the Appellants’ assertion the application is for a ‘minor change’ 2. The reason why TMPA does not admit to this assertion are outlined in the Affidavit of Katharine Wiltshire dated 23rd September, 2010. a. Water supply - Most water supply is proposed to originate from Canungra Creek. This is a “major change”. Canungra creek cannot tolerate any additional water demands during normal years. The domestic water load could be up to 300,000 litres -- 2 of 10 -- 3 per day via three open reservoirs factoring in evaporation rates. This equates to over 2 Megalitres per week or 100 Megalitres per year. All water for domestic usage needs to be self-sufficient by collection and storage in tanks. This was in the original proposal. b. 25% increased adverse impact from 25% more total dwellings by increasing density. Removal of vegetation increases slope and ground instability from landslide and bank erosion. There would be 25% more waste disposal, traffic, power and water demand. c. 25% increased supply of dwellings There is not 25% more demand for urban dwellings in a semi- rural area without additional jobs, transport and high schools. 3. TMPA would not consent to a Judgement that this proposed application was a “minor change” and TMPA would not consent to all the Conditions of Approval that were served to the Third Co-respondent on 22nd September, 2010 by the Appellant.” [2] The letter was signed by Ms Wiltshire, who represented the third co-respondent at the hearing, having been appointed by it for that purpose, apparently on the basis of her leadership of a similar organisation active in Canungra. Tamborine Mountain Progress Association (TMPA) is the third co-respondent [3] The appellants seek a material change of use to permit development of a large 219 hectare site immediately adjoining recently constructed residential development at the northern end of Canungra. The development application was lodged on 25 August 2004 with a predecessor local government, which refused it in July 2006, occasioning this appeal. [4] The appellants have been able to obtain the support of the other parties (TMPA excepted) for a changed development. The outstanding feature is an increase in the number of proposed residential low density zoned lots from 224 as publicly notified to 298 now. At the same time, there will be an increase in the open space area, given the significantly reduced size of allotments. As Mr Panaretos, a planner whose affidavit was read by Ms Wiltshire, puts its: “The most obvious physical change in the proposed development will be the increased density of development. Reduced lot sizes will result in significantly reduced building setbacks on many lots. Likely consequences of these reduced setbacks are an increased prevalence and height of retaining walls on sloping land to accommodate flat building pads, removal of existing trees and a reduction in new tree planting within the subdivision area. These changes result in a different character to the development.” -- 3 of 10 -- 4 In his opinion, the amended plan “results in a substantially different development from that originally proposed”. [5] Although the appellants’ application calculated to permit the appeal to proceed on the basis of the amended proposal is based on s 4.1.52(2)(b) of the IPA, it is the Sustainable Planning Act 2009 (SPA) which provides the definition of “minor change” in s 350, the relevant requirement for success being that the change “does not result in a substantially different development”: sub-s (1)(d)(i). Section 821(2)(b) of the SPA brings in the s 350 definition even though s 819(2) provides that the appeal proceed under IPA. Sections 350 and following deal with changing development applications. Section 367 (sub-s (1)(a) of which reflects s 350(1)(d)(iv)) and following sections provide for “permissible change” to development approvals. Time will tell to what extent the jurisprudence that arose under superseded statutory equivalents has continuing relevance. [6] In my opinion it is doubtful that, under those regimes, an increase of 74 lots against 224 publicly notified would qualify as minor change. More modest percentage increases in residential lots were acceptable in Sumvista Pty Ltd v Redland Shire Council [2005] QPEC 076 and Australand Holdings Ltd v Gold Coast City Council [2006] QPEC 030. The percentage increase (albeit represented by a single residential unit) was greater in Blazen Pty Ltd v Brisbane City Council [2010] QPEC 28. [7] On older approaches which examined intensification of uses, increases in building areas and the like, reference was made to percentage increases; relevant benchmarks fell far short of what is encountered here. The current circumstances and legislative arrangements render inappropriate a simplistic exercise limited to one of calculating percentage increases. The development footprint will be significantly reduced and visual impacts associated with the change will essentially be confined to within the site itself, although Ms Wiltshire argued that a rural amenity should be preserved along a wide swathe of land traversing the site north to south which has been quarantined to accommodate the possibility that the Main Roads authorities may require it for construction of a Canungra bypass; whether that proposal will ever be advanced is a matter of pure speculation. [8] It is the case that in one location, the southernmost proposed east-west cul-de-sac, a handful of new lots (relatively large in size) are proposed north of the cul-de-sac where open space was originally proposed. That is, while the overall development footprint is significantly reduced, in that small area it advances. Ms Wiltshire presented evidence that that represents an intrusion into a mapped area of koala habitat. It is clear, however, that where the development footprint is reduced, a far more extensive area of such habitat is now spared. [9] This observation invites focus on the real question for the court in this preliminary hearing. For the purposes of s 350, the development cannot be regarded as substantially different (in my opinion) on the ground that incursions upon mapped koala habitat change in such a way. Of course, discrete changes should not be considered as if they stood alone. It is the cumulative effect of changes which must -- 4 of 10 -- 5 be taken into account in determining whether or not change(s) would result in a substantially different development. Mr Hughes SC, appearing for the appellants, did not shrink from submitting that his clients’ development is essentially the same, notwithstanding the large absolute and proportional increase in the number of residential allotments which will translate into additional residents and concomitant increases in requirements for water and other services, including roads. [10] Another change taken to be involved is the provision of “connectivity” for vehicular traffic between the northern and southern parts of the proposed development. This amounts to an apparent widening of what may originally have been only a pathway cutting directly across the long narrow swathe which has been left undeveloped against the possibility that the Canungra Bypass will one day eventuate. What was originally proposed is not entirely clear. If there is a change, the Department raises no difficulty. It could not be contended that a substantially different development would result from a connection sparing future residents from having to use the Beaudesert-Nerang Road and Finch Road. [11] What Ms Wiltshire in her letter characterises as a concerning increase in development and impacts of 25 percent (on my calculation it ought to be higher) would seem, on the face of it, to be a complaint that the proposed development is unacceptable in principle: the expressed concerns would have been there even when the appellants’ proposal was in its original and publicly notified form. Indeed, Mr Brown’s summary of contents of the submissions that were properly made during the notification period confirms as much. On reflection, I think that it is possible for a development which is substantially bigger on one measure to be, nevertheless, not “a substantially different development” for SPA purposes. I was reminded of the circumstances in Clift & Anor v Gold Coast City Council [2005] QPEC 106, which concerned infrastructure contributions chargeable by the Council in respect of a nine storey building at Northcliffe proposed to contain only 12 bedrooms, whereas the Council submitted that charges should be made on the basis of 57 bedrooms: the building from outside would look essentially the same but the demands on Council infrastructure differed greatly from development scenario to the other, all depending on how many apartments were to go on each floor. [12] The situation here is not the simple one of the number of households making demands on resources and facilities increasing markedly. It is more difficult than that for the appellants. The original proposal in respect of both water supply and sewerage was that the project would be self-sufficient. What is now proposed is connection to town water and the sewerage system serving Canungra. The water supply aspect of the change means that householders will no longer be responsible for making their own arrangements for collecting water, but will be required to provide (presumably smaller) rainwater tanks of at least 5,000 litres capacity which will collect rainwater but also be fed from the reticulated supply in the mains: the tanks will constitute domestic reservoirs from which all water used in the household is drawn. The other aspect of change is what permits the reduction in size of the proposed allotments (reconfiguration for which is sought in the application): it will no longer be necessary for each household to provide its own facilities for treatment of effluent. -- 5 of 10 -- 6 [13] While appreciative of Ms Wiltshire’s arguments along the lines that the development will now, in effect, be contending with the present residents of Canungra and downstream users of water who draw from Canungra Creek in aid of rural activities – likewise “environmental” users, being fauna and flora – for precious water, whereas given the terms of the original application, they did not come into the equation. I do not think, in the end, that this involves a substantially different development. [14] Ms Wiltshire has seized on historical records of daily flows in Canungra Creek showing isolated periods when, perhaps for days, there was no or minimal flow. The lesson she drew was that access to water is jeopardised by the development, particularly for the downstream users: she presented a picture of their being without water or in the invidious situation that the Council has faced at times in recent years of having to truck water in. [15] The court accepts the evidence of Dr Johnson (who was cross-examined at some length by Ms Wiltshire) presenting the point of view, that what is significant, rather than daily flows, is monthly flows, which on his analysis indicate an assured and sufficient supply. The explanation lies in the circumstance that extraction of water from the creek (whether by the Council for the township of Canungra’s purposes or by downstream users for theirs) occurs from the pools where supply can be relied on, even if measurable flow is negligible. The records were said to be based on readings taken under a particular bridge. [16] The Council (more correctly, the appropriate water supplying entity in which it participates) is confident enough about the sufficiency of water available from Canungra Creek to be willing now to approve the “enlarged” development on the basis of town water being supplied to it. The second co-respondent by election, being the State department concerned with these matters is, likewise, confident that there is going to be enough water. Mr Barclay, representing it, tendered as Exhibit 9 the current Water Licence, which the Department has issued to the SEQ Water Grid Manager to take water from the creek for urban purposes of Canungra. He offered the assurance that the licence, which has only months to run, will be renewed and that there is capacity to increase the present nominal entitlement of 150 megalitres per ‘water year’ (a water year runs from 1 July to 30 June). [17] Dr Johnson has descended into detailed calculations of water requirements of the development and what will be available for support of the community generally from Canungra Creek. There is no reason why his views ought not to be accepted. As regards water, the development for present purposes is no different from any other in which reliance on town water is proposed and the supplier confirms its ability to provide supply, having regard to other demands. Ms Wiltshire rightly points to a significant change in the development in that it no longer takes sole responsibility for its water supply. In my view this does not produce a substantially different development. [18] Only Dr Johnson of the experts providing affidavits was cross-examined, and more by reason of Mr Hughes’ challenge than Ms Wiltshire’s desire. The appellants -- 6 of 10 -- 7 placed before the court evidence of other experts such as Mr Healy (traffic), Mr Bray (also water) and Mr Morrison (geotechnics - on the issue of alleged risk of landslip either on or above designated building envelopes, which is not a problem for the site in his opinion). There was no contrary evidence. For present purposes, i.e. those of the preliminary hearing, I accept the views of those experts. [19] So far as planning matters are concerned, Mr Brown offers a different opinion from that of Mr Panaretos. The approach of the latter is understandable, but I do not think it answers the question for present purposes. Consistently with what it indicated above, I think that the difference in streetscape, etc. which is predicted does not necessarily mean there is a substantially different development. I do not think there is a substantially different development here. [20] For what it is worth, in strategic plan mapping, the western part of the site (bounded by Canungra Creek), which is where development is to occur, is designated essentially urban residential with much smaller abutting areas designated rural residential or rural-indications that the type of development now envisaged is conformable with what has been desired. The site also comes within the urban footprint established in the South East Queensland Regional Plan 2009-2031. I am unable to ascribe weight to this factor. Consistency with planning arrangements does not seem to me to bear on whether one form of development is substantially different from another. There is of course no new use applied for here, or anything of that kind. [21] The court was provided with a copy of the Chief Executive’s guidelines recognised by Judge Rackemann in Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 in a useful passage at 511: “The only party to the present proceeding who submits that the changes do not constitute a minor change is the fourth co-respondent by election. However, the matter is not simply one for determination between the parties. The Court must exercise its own judgment in these matters. In determining whether a development constitutes a substantially different form of development, it is appropriate to have regard to the guidelines made by the Chief Executive under section 760 of the SPA (Statutory Guideline 06/09), which provides relevantly as follows: “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 permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change will result in a substantially different development and is not intended to be exhaustive. A change may result in a substantially different development if the proposed change: • involves a new use with different or additional impacts; -- 7 of 10 -- 8 • 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, 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 the negative impact of the development; • impacts on infrastructure provision from a location or demand.” It may be noted that the list provided in the guideline is a list of those changes which "may" result in a substantially different development. It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different. It may also be noted that the list is not intended to be exhaustive. There may be other changes not listed in the guideline which, in a particular case, can be judged to be more than minor, in that it involves a substantially different development. It may also be noted that 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.” Here, there is to be a one-third increase in yield of residential lots, many as small as 750 m2 . The guidelines do not seize on the bare fact of an intensification of that (or any particular) order; nor, in my opinion, does the definition of “minor change”, without which I would have difficulty in accepting what the appellants propose as minor change. (That is notwithstanding the generous approach which has been taken under s 4.1.52(2)(b), as to which Mr Hughes referred to Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 385 at 391K. But for s 350 of the SPA, the outcome for the appellants may well have been akin to that under earlier legislation in Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386.) [22] As to the “dot points” in the guidelines: • There may be different or additional impacts, but there is no new use here; • No new land comes in; • The changes Mr Panaretos identifies, assuming they happen, are far from “dramatic” in my view; • There is no change to the ability of the proposal to operate as intended; • No component of the development is removed; • There will be significant impacts on traffic flow, etc., presumably to increase by a third; -- 8 of 10 -- 9 • Similarly, there will be new or increased impacts from integration with Canungra’s general water and sewerage infrastructure arrangements (no doubt the new households will come in on a “user pays” basis); • No component is removed, although the domestic water storages will be smaller; • There will be a one-third increase in demand for everything above what would apply; there is no suggestion of any concerning impact on any particular location from which infrastructure is provided. [23] As the quoted passage states, the satisfaction of any dot point (or combination of dot points) indicates that a substantially different development may be involved, not that one is. For the reasons given, the appropriate determination is that there is not a substantially different development proposed here; accordingly, the changes represent “minor change”, even when considered collectively, as the court must consider them. I agree with his Honour that there may be a substantially different development use though application of the guidelines would not lead to that outcome. [24] Mr Hughes’ written submissions identify TMPA’s issues as set out in the letter and certain other changes (such as in the staging of the overall development); they introduce a persuasive discussion of the various components with a proposition that I consider broadly correct: “In short, all of these issues were issues likely to arise (and did arise) with any urban development of the subject land, regardless of the precise extent of the urbanisation, the precise number of allotments, or the area of those allotments. This fact itself points to the proposition that the changes, in terms of impacts, do not involve a substantially different development.” [25] Mr Hughes tendered as Exhibit 1 a draft order incorporating a conditions package of the kind the court is accustomed to making in resolving an appeal in a way that allows a proposed development to proceed. All parties save Ms Wiltshire indicated their agreement to an order in those terms being made. It was understood by her any presumably by all parties, that the preliminary hearing was simply for the purpose of determining whether or not the appellants could proceed on the basis of their changed application (the court is ruling that they can) and that whether or not the appeal deserved to succeed was a different matter for separate determination on the merits. The appellants have attempted to cover the merits issues in the appeal by the affidavit evidence of their experts, whose combined efforts (the appellants contend) indicate there is no reason why the appeal ought not to be allowed on the basis of the changed proposal. Ms Wiltshire’s disappointment that the Council, now differently constituted, has changed its stance is understandable. It is a common experience in the court that councils change position, especially where, as here, development proposals are modified. [26] The hearing came to a rather abrupt ending. Given Mr Hughes’ having dated the “draft judgment” (Exhibit 1) as the date of the hearing, I am wondering whether he was in truth hopeful of persuading the court to proceed from ruling in his clients’ favour on the preliminary point to allowing the appeal and approving the development application as changed, subject to the assessment manager’s -- 9 of 10 -- 10 conditions in Annexure A and the referral agencies’ conditions contained in Annexures B and C. Before an order of that kind finally resolving the appeal is made, Ms Wiltshire (more correctly, TMPA) ought to have an opportunity to contest the merits of the changed development application generally or make submissions about conditions. She has done that to an extent in her “affidavit” filed by leave at the hearing. She may seek to bring in further expert evidence. [27] As things stand, there is not much to dissuade the court from proceeding as Mr Hughes asks. However, it would not do so without allowing Ms Wiltshire an opportunity to be heard if she identifies relevant and appropriate issues about the merits or conditions. In this regard, she is obviously constrained by the issues identified by the third co-respondent. It is uncertain whether Ms Wiltshire is an office-bearer or even a member of it; she attributes her standing to her being the President of the Canungra Area Development Association Inc. It was not sought by any party to challenge her entitlement to appear for the TMPA. -- 10 of 10 --