Dimensions Property Group Pty Ltd v Brisbane City Council [2009] QPEC 41

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Dimensions Property Group Pty Ltd (ACN 083 934 249) v Brisbane City Council [2009] QPEC 041 PARTIES: DIMENSIONS PROPERTY GROUP PTY LTD (ACN 083 934 249) (Applicant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 1191 of 2009 DIVISION: Original PROCEEDING: Application to change conditions ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 05 June 2009 DELIVERED AT: Brisbane HEARING DATE: 14 and 15 May 2009 JUDGE: Robin QC DCJ ORDER: Order as per draft on 15 May 2009 – conditions of development approval changed (see [2]) CATCHWORDS: Integrated Planning Act 1997 s 3.5.24, s 3.5.33 – where court in an earlier proceeding granted a development approval for a material change of use and a preliminary approval for building work for “office”, development to be in accordance with plans – application to change conditions by new plans increasing the limited area of enclosed office space on the top (6th) level – whether change represented “assessable development” (building work) so as to preclude the court’s granting relief COUNSEL: M Connor (solicitor) for the Appellant M Hinson SC for the Respondent SOLICITORS: Connor O’Meara for the Appellant Brisbane City Legal Practice for the Respondent -- 1 of 25 -- 2 [1] On 14 May 2009 the court heard an application under s 3.5.33 of the Integrated Planning Act 1997 (IPA) for changing of conditions in a development approval granted by the court on 24 April 2008 in appeal BD3498 of 2007. That approval was for a development permit for material change of use for office and a preliminary approval for building work for office on a site at 85 Hudson Road, Albion. The site is owned by Hudson Road Developments Pty Ltd (rather than the applicant); its consent to the making of the application is in evidence. The implications of the changes sought are compendiously set out in an affidavit of Mark Jamieson Clayton, a town planner. The affidavit summarises the changes as follows: “(a) the use of the upper level (5th floor) is proposed to be changed from Utilities/Recreation to Office; (b) the gross floor area (GFA) of the upper level is proposed to be increased from 235m2 to 430m2, a total increase of 195m2. The total GFA of the building on the Approved Plans was 3,007m2. The proposed changes represent an increase in total GFA of about 6.5%; (c) whilst the proposed changes have not altered minimum building setbacks to the properties boundaries, setbacks to the walls of the upper level have decreased from: (i) 7.7m to 4.2m to the eastern boundary (Powell Lane); (ii) 4.7m to 4.6m to the northern boundary (Birbeck Street); (iii) 5.9m to 2.9m to the western boundary (Hudson Road); (iv) 7.7m to 3.6m to the southern boundary; (d) previously roofed and landscape areas have been replaced with accessible and non accessible areas; (e) the configuration of the external plant on the upper level has changed to accommodate the expanded floor area; (f) whilst the height of the lift well and stairwell has increased by 400mm, the maximum roof height at RL38.25 remains below the approved maximum roof height of RL38.55m; (g) the stairwell has been relocated from the south-west to the south- east corner of the building; (h) the upper floor level has increased by 400mm in height, with consequential amendments to all other levels.” [2] Apparently taken by surprise when the decision was reserved, Mr Connor pressed for a quick determination, his client’s position being that delay would be more costly to it than failure of the application. He was informed that the court’s -- 2 of 25 -- 3 inclination, if an immediate decision were required, was to refuse the application. The parties were called back the following day, to be advised that, after consideration overnight, the court now inclined the other way. Some further submissions were invited and forthcoming from Mr Connor and Mr Hinson SC (for the Council), following which an order was made subsequently corrected under the “slip rule” at the parties’ joint request to provide: “…UPON the Applicant by its solicitors undertaking: 1. not to carry out or authorise any building work assessable under the Building Act 1975 without an extant development permit for it; 2. to notify the Respondent forthwith of the terms of any application for a new or changed development permit for building work assessable under the Building Act 1975 not within the Court’s development approval; 3. to supply the Respondent forthwith with copies of any existing and any future or changed development permits for building work assessable under the Building Act 1975. IT IS ORDERED THAT the conditions of the development approval granted by this Honourable Court on 24 April 2008 in Planning and Environment Appeal No. 3498 of 2007 for a development permit for a material change of use for office and a preliminary approval for building work for office on land described as Lot 1 on RP19174 and located at 85 Hudson Road, Albion be changed as follows: 1. Condition 3 be changed to: “Carry out the approved development generally in accordance with the drawings detailed below instead of the ‘drawing(s) and/or document(s)’ referred to in the Judgment made by the Court on 24 April 2008: (a) 1169 DA500 Issue D dated 20 April 2009; (b) 1169 DA501 Issue D dated 20 April 2009; (c) 1169 DA502 Issue D dated 20 April 2009; (d) 1169 DA503 Issue D dated 20 April 2009; (e) 1169 DA504 Issue D dated 20 April 2009; (f) 1169 DA505 Issue D dated 20 April 2009; (g) 1169 DA506 Issue D dated 1 March 2009; (h) 1169 DA507 Issue D dated 1 March 2009; (i) 1169 DA508 Issue D dated 1 March 2009; (j) 1169 DA511 Issue D dated 20 April 2009; (k) 1169 DA512 Issue D dated 20 April 2009; (l) 1788570/1 dated 8 February 2008.” -- 3 of 25 -- 4 2. Condition 11 be changed to: “The overall height of the proposed building(s) is to be in accordance with the following requirement: Construct the floor levels in accordance with the floor levels on the approved elevations as they relate to the contour survey by Drawing No. 1169 DA506 Issue D and 1169 DA507 Issue D, both dated 1 March 2009.” 3. Liberty to apply.” [3] Some ex tempore reasons were given to indicate to the parties the court’s approach, publication of these fuller reasons being foreshadowed. [4] When the underlying development application was made, the site was close to, but not part of the commercial area of Albion including the “TAB” building; it was zoned light industry. Across Hudson Road is the railway line; the site has a frontage to Birkbeck Street which runs off Hudson Road to Sandgate Road and a third street frontage to Powell Lane, which runs off Birkbeck Street roughly parallel to Hudson Road. The applicant’s appeal was against a deemed refusal of a development application, which was impact assessable and attracted five adverse submissions, including a petition with a dozen signatures. The most comprehensive (20 close-typed pages) was from a commercial competitor which presumably has competing interests in Albion. The submission identified the following as reasons for refusal: “(a) the proposal provides a poor design response within the local urban context; (b) the proposal is for out-of-centre development involving development of centre activities (office) and no Commercial Development Impact Assessment Report has been provided as required by the Commercial Impact Assessment Planning Scheme Policy (Table 1); (c) the proposal is for an out-of-centre extension of the existing centre which does not appropriately integrate with the traditional values of the centre in terms of scale, form, bulk and character; (d) the proposal is not sensitive to surrounding development, particularly the residential amenity and traditional character of the residential area to the north-east of the site; (e) the proposal does not adequately address issues of transport, access and servicing, and has not provided any demonstration that the current access arrangements will not result in significant adverse consequences for the existing road network; -- 4 of 25 -- 5 (f) the proposal conflicts with the Strategic Plan, Light Industry Area provisions, and applicable Codes under the Brisbane City Plan 2000; and …” [5] The petition, identifying the proposal as a “six storey concrete monolith, built on the small 977m2 allotment” complained of its visual impact, its blocking views of Windsor Hill, its introduction of additional traffic in narrow streets, already congested, overshadowing (and privacy), air conditioning and vehicle noise and offence to the character of the streetscape: there is a row of character houses, most from the 19th century (“one built in 1887 is historically listed and protected”) across Birkbeck Street. The traffic impacts were probably exacerbated by access being to and from Powell Lane, a dead end. There were submissions from owners of these nearby properties, including the 1887 residence. The submissions did not prevent the Council’s coming to support the proposal, which the court endorsed last year. Even though their authors took no part in BD3498 of 2007 (going by the title of the appeal appearing in the formal order), in this application the contents must be taken into account by the court under s 3.5.33, which provides: “3.5.33 Request to change or cancel conditions (1) This section applies if— (a) a person wants to change or cancel a condition; and (b) no assessable development would arise from the change or cancellation. (2) The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition. (3) If the person is not the owner of the land to which the approval attaches, the request must be accompanied by the owner’s consent. (3A) If the development approval is for building work or operational work for the supply of community infrastructure on land designated for the community infrastructure— (a) subsection (1) applies only to a person who intends to supply, or is supplying, the infrastructure; and (b) subsection (3) does not apply. (3B) Subsection (3C) applies if an application for the approval were made at the time the request is made and evidence under section 3.2.1(5) would be required to support the application. (3C) The request must also be accompanied by the written agreement of the chief executive from whom evidence would need to be obtained under section 3.2.1(5). (4) If the entity has a form for the request, the request must be in the form and be accompanied by the fee for the request— -- 5 of 25 -- 6 (a) if the entity is a local government—set by a resolution of the local government; or (b) if the assessment manager is another public sector entity—the fee prescribed under a regulation under this or another Act. (5) The entity must decide the request within 20 business days after receiving the request. (6) The entity and the person may agree to extend the period within which the entity must decide the request. (7) To the extent relevant, the entity must assess and decide the request having regard to— (a) the matters the entity would have regard to if the request were a development application; and (b) if submissions were made about the application under which the condition was originally imposed—the submissions. (7A) Also, if a building referral agency gave advice about an aspect of the application the subject of the request, the entity must have regard to the opinion of the agency about the change before deciding the request. (8) The entity must give the person written notice of its decision. (9) If the entity is a concurrence agency or the court, the entity must give the assessment manager written notice of any change or cancellation. (10) The changed condition or cancellation takes effect from the day the notice is given to the person. (11) Subsections (5) and (6) do not apply if the entity is the court.” [6] It may be inferred that the submitters (and others) would regard the amended proposal as much the same as the original one, “only worse”. It is not reasonable to contemplate additional or different submissions based on the changes, which will bring no greater interference with relevant sight lines. It is not proposed to increase parking provision in the two basement parking levels or that part of the ground floor to be used for parking. The traffic concerns are already accommodated to a considerable extent by generous road dedications required along all frontages of the site (exclusive of “additional widening for indented loading bay” in Birkbeck Street – see sheet 48 of Mr Clayton’s book of Exhibits). The starting point for the court in the current application is the proposal as approved, rather than the site in its pre- development state. [7] No point is taken about the conversion of what was to be utilities/recreation on the top level of the building to “office”, the latter use subsuming the former. Nor does the Council, in opposing the application (and disappointing the applicant’s expectations when the hearing was adjourned to 14 May 2009) suggest that the -- 6 of 25 -- 7 increase in roofed and enclosed space on the top level represents any increase in scale or in intensity to cause concern – for example, by constituting a material change of use. It does not point to any planning scheme provision under which any issues might arise relevant to assessment of the proposed changes to be effected by substitution of revised plans, the key one being the increase in enclosed “office” area at the top level from 235m2 to 430 m2, atop three office levels of 580m2 and a larger (first floor) one of 615m2. The Council’s point is that “assessable development would arise from the change” for the purposes of s 3.5.33(1)(b). The Council contends that the present applicant should have gone to it as assessment manager under s 3.5.24: “3.5.24 Request to change development approval (other than a change of a condition) (1) If a person wants a minor change to be made to a development approval, the person must, by written notice— (a) advise each entity that was a concurrence agency that the person is asking for the change; and (b) advise each entity that was a building referral agency, for the aspect of the application the subject of the request, that the person is asking for the change; and (c) ask the assessment manager to make the change. (2) The notices must be given at about the same time, and the notice to the assessment manager must include a copy of each notice given under subsection (1)(a). (3) If the person is not the owner of the land to which the approval attaches, the request must be accompanied by the owner’s consent unless the approval relates to land that was acquisition land to which section 3.2.1(13) applied when the application for the approval was made. (3A) If the development approval is for building work or operational work for the supply of community infrastructure on land designated for the community infrastructure— (a) subsection (1) applies only to a person who intends to supply, or is supplying, the infrastructure; and (b) subsection (3) does not apply. -- 7 of 25 -- 8 (3B) Subsection (3C) applies if an application for the approval were made at the time the request is made and evidence under section 3.2.1(5) would be required to support the application. (3C) The request must also be accompanied by the written agreement of the chief executive from whom evidence would need to be obtained under section 3.2.1(5). (4) If the assessment manager has a form for the request, the request must be in the form and be accompanied by— (a) the fee for the request— (i) if the assessment manager is a local government—set by resolution of the local government; or (ii) if the assessment manager is another public sector entity—the fee prescribed under a regulation under this or another Act; and (b) a copy of the advice given to any concurrence or building referral agency for the application. (5) This section does not apply if the change is a change of a condition of the development approval.” [8] The drafting of IPA is hardly helpful, as the growing number of cases in the court in which it is sought to reconcile the two provisions attests. Can it be that each section set out above excludes the other? Indubitably, there are purported conditions of the development approval incorporated in the court’s order which require the development to be in accordance with the plans incorporated in the order. Section 3.5.24 appears to disqualify itself in that situation. Mr Hinson’s submission was that subsection (5) only applies where a developer is able to change a condition under s 3.5.33 – which he says is not this case. Assessable development is defined in Schedule 10 as follows: “assessable development— 1 Generally, assessable development means development stated in schedule 8, part 1, other than to the extent that part is modified under section 2.5B.63. 2 The term also includes development declared under a State planning regulatory provision to be assessable development. -- 8 of 25 -- 9 3 For a planning scheme area, the term also includes other development not stated in schedule 8, part 1, but declared to be assessable development under any of the following that applies to the area— (a) the planning scheme for the area; (b) a temporary local planning instrument; (c) a master plan for a declared master planned area; (d) a preliminary approval to which section 3.1.6 applies.” [9] The assessable development Mr Hinson points to as being within paragraph 1 of the definition is described in Table 1 of Schedule 8 Part 1: “Table 1: Building work For the Building Act 1975a 1 Building work that is not— (a) self-assessable; and (b) declared under the Building Act 1975 to be exempt development. ” [10] Independently, for 3(a) of the definition, Assessable Development is identified in the respondent’s City Plan 2000. Chapter 3, 2.1 (page 3) explains that: “1 Introduction … In addition to the Act, the Plan also identifies development that is: • Exempt • Self assessable • Assessable (subject to code assessment or impact assessment). Therefore, to determine whether an application must be made to carry out development, both Schedule 8 of the Act and the Plan must be considered. …” 2.5 begins: “2.5 Assessable development Assessable development is identified by Schedule 8 of the Act and the level of assessment tables for each area…” And 2.5.2: “Development subject to Impact Assessment: • requires an application and development permit before development can start …” -- 9 of 25 -- 10 2.6 provides: “2.6 Components of the Plan and their relationship to assessment processes … Each Area includes: • DEOs… • Level of assessment tables that determine the level of assessment applicable to a proposed development in the Area (self assessment, code assessment or impact assessment). …” “Level of assessment tables” provides: “In some cases the level of assessment table requires only material change of use, operational work, building work or reconfiguration of a lot to be assessed against the planning scheme. If the level of assessment table does not specifically refer to one of these components, any material change of use and/or building work (associated with a use or structure specified in the level of assessment table) will need to be assessed against the planning scheme (other than minor building work and any other exempt development). Assessment of building work against the planning scheme results in preliminary approval for building work. A subsequent development permit for building work will be issued only when the building has been assessed against the Building Act…” The definition of minor building work does not extend to the change the applicant wants to make. [11] One then turns to the provisions for the Light Industry Area in 6.2, and what is said in 6.2.3 about level of assessment: “● The trigger for assessment in the level of assessment table is material change of use and/or building work (associated with a use or structure specified in the level of assessment table) unless otherwise specified.” -- 10 of 25 -- 11 Impact Assessment is: “ Impact Assessment Relevant Codes Generally appropriate … … 9. Shop or Office where 250m2 or less in gross floor area and complying with the applicable Acceptable Solutions of the Centre Design Code Centre Design Code … Generally inappropriate … 3. Any other material change of use … ” [12] The potential for such arrangements to inconveniently exclude the court’s ability to change conditions under s 3.5.33 is clear. Building work is defined in the Building Act 1975 s 1.3.5(1) to include “building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure”. Altering would include reducing the scale or size of a building. It would seem absurd if the court were precluded from changing a condition to achieve a reduction in size of, say, the enclosed space proposed for the top level of the applicant’s building; if it represents building work and therefore assessable development, in principle and logic it has to be treated in the same way as an increase. There are avenues available to bring some flexibility to the court’s task of construction, particularly s 32A of the Acts Interpretation Act 1954: “32A Definitions to be read in context Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.” (City Plan is a statutory instrument by virtue of s 2.1.23 of IPA, so that, in effect, s 32A applies: see Schedule 1.) [13] There is also the unusual use of “generally” in paragraph 1 of the IPA Schedule 10 definition of assessable development (closely replicated in the definition of self- assessable development – in neither case is paragraph 3 similarly qualified) which I am inclined to treat as allowing some flexibility so that certain unintended outcomes can be avoided; Mr Hinson submitted that “generally” is there to acknowledge the effect that planning schemes may have by way of varying the effect of IPA arrangements under s 3.1.2. [14] It is convenient to set out Mr Connor’s written submissions in respect of s 3.5.33(1)(b): “11. Initially, the Court’s approach focused on whether the change: -- 11 of 25 -- 12 (a) would give rise to a form of development that was so different to the original as to require independent assessment (Rhema Management Services v Noosa Shire Council [2000] QPELR15 at 16) (b) and in another case (Rose Bay Developments Pty Ltd v Bowen Shire Council [2001] QPELR 340 at 345), referred to similar but subtly different approaches including whether the changed proposal would: (i) give rise to a markedly different concept, or a building of a different character; (ii) be materially larger or different; (iii) substantially or significantly introduce a new or enlarged factor; and (iv) give rise to something that may be new, different or attract further objections. 12. It was acknowledged that questions such as these were matters of fact and degree and involved matters of judgment. 13. However in a later case (Hayday Pty Ltd v Brisbane City Council (2006) QPELR 40 at 42) His Honour Judge Wilson SC said: “[7] It is also clear, however, that an approval under the section simply varies rights which remain legally sourced to the original development permit, and does not give rise to new development rights taking independent effect from the later date of approval. Plainly, there is a distinction to be drawn between changes of that kind and those which would require an entirely new development permit. The distinction does no more than highlight the purpose and intent of this section: to provide a process for changing or cancelling a condition in an identified circumstance: namely, where no assessable development arises. The section does not provide a mechanism under which assessable development can be authorised without a development permit. [8] Building work is assessable development, as the term is defined in IPA, Schedule 10. It is assessable under Schedule 8, Part 1 against the Standard Building Regulation: Table 1, Item 1. It is also assessable under the Brisbane City Plan: Chapter 4, -- 12 of 25 -- 13 p114. When building work different from that originally approved is now proposed it is difficult to see how Section 3.5.33(1)(b) can be read as anything other than a bar to the application of the balance of the section.” (underlining added) 14. Judge Wilson SC in the balance of his decision then also applied the tests emerging from at least one of the earlier decisions that focused on the nature and degree of changes rather than whether building work is actually required. 15. A new feature of His Honour’s decision was that he looked at the expression “assessable development”, as defined in IPA (Schedule 10 IPA), in the broadest possible way: His Honour thought about the concept in the abstract, rather than in the context of the development that had already been approved. 16. Focussing upon whether “assessable development” arose in the abstract rather than having regard to the conditions of the assessable development that had already been approved is the aspect of the decision that seems to have led to learned authors claiming the provision lacks utility. 17. Indeed, it does seem a very curious outcome that Parliament would have intended that a change would have been disqualified, to an existing development approval, if that might mean that a form of development, yet to be applied for and approved, (like building works assessable under the Building Act), would give rise to additional assessable development. Indeed, the object of the section seems to be to introduce a constraint to ensure that conditions are not changed in a way which will mean that a new or different form of development is created which has not undergone a proper assessment. 18. With respect, considering “assessable development” in the abstract goes too far and it is suggested that: (a) given that there is no obligation under IPA to apply for all relevant development permits at once, and conventionally that is not done, there is no need to construe the expression “assessable development”, in section 3.5.33 IPA as any possible assessable development, without having regard to the context and terms of the development approval given; (b) such an approach is inconsistent with a purposive approach and would seems to be at odds with advancing IPA’s purposes by ensuring that decision making is efficient; -- 13 of 25 -- 14 (c) makes it difficult (if not impossible) to reconcile the operation of section 3.5.24 IPA with that of section 3.5.33 IPA. 19. Accordingly, it is respectfully suggested that the expression “assessable development” in section 3.5.33 IPA needs to be read in the context of the approved development to which the conditions which are sought to be changed or cancelled apply.” [15] I was persuaded by Mr Connor to adopt the “purposive” approach in Habitat Development Group Pty Ltd v Sunshine Coast Regional Council [2009] QPEC 37, where the Council was supportive: it did not contend that the changes (which in a practical sense were at least as significant as those sought here) constituted assessable development under its planning scheme. It is unfortunate that in Habitat Development Group there was absence of any argument to the contrary and that here, severe time constraints, which I determined to accommodate, have meant that the important question confronting the court has not been approached in circumstances affording as much time as one might have appreciated being available for maturer consideration. I am conscious of the appearance of conflict with Hayday, which in the short term may create confusion. I am confident that the court, in cases where it has been the “entity” that imposed conditions sought to be changed (as opposed to the Council as in Martin v Whitsunday Shire Council [2001] QPELR 348) will be well able to determine in particular cases whether, applying a purposive approach, assessable development (dependent upon some further approval or permit) arises from a change of condition. I find Mr Connor’s approach (which emphasises the correctness of the outcome in Hayday, where the changes triggered a different, more onerous level of assessment) in distinguishing his approach from that which the court took “initially” rather “subtle”; indeed, he so described it. I have no difficulty myself with the tests propounded by Judge Quirk and Judge Wall QC. [16] In my opinion, the same purposive approach, if necessary, can be taken to the relevant provisions of City Plan 2000. The drafters made provision for Minor Building Work which comprises: “In a Industrial Area: • An alteration, addition or extension to an existing building where the floor area including balconies is less than 5% of the building or 25m2, whichever is the lesser • Internal fitouts • Roofed structures over ground level outdoor landscape and recreation areas i.e. pergolas and patios • Sunhoods over windows and doors • Carports or car shade structures up to 25m2 in area • Amenity blocks or outbuildings up to 25m2 in area” This does not cover the changes of the extent sought here, which go beyond the definition in their extent. This definition does not take them out of the category of -- 14 of 25 -- 15 “assessable development” for purposes of City Plan. It is another thing to determine that where development is approved already, an addition or change to it which, standing alone, would be assessable development is necessarily in the same category when considered in the context of changing conditions currently set. If an additional 195m2 of enclosed space were to be provided at ground level, my response would be different. Assessable development in this context refers to something that in a practical sense requires assessment and has not been assessed. Here, in a practical sense, I think that the assessment that has occurred may be treated as covering the changes, or allowing for them. This occurs against a background of statute law which requires the private building certifier who will be asked to issue necessary permits to permit actual building work to happen to ensure that nothing is approved which goes outside the approval and conditions included in the court’s order and the availability of penal sanctions under s 4.3.1 of IPA for carrying out any assessable development if there is no effective development permit for it. [17] It seems unnecessary to resolve the contest between the parties as to the proper interpretation of the planning scheme. I think that its relevant provisions about assessable development can comfortably be approached with an eye to the objects or purposes being served, just as IPA can. Section 1.3.2 provides as one of the “Key definitions” in IPA: “1.3.2 Meaning of development Development is any of the following— (a) carrying out building work; (b) carrying out plumbing or drainage work; (c) carrying out operational work; (d) reconfiguring a lot; (e) making a material change of use of premises.” Note “carrying out” in (a). [18] This leads into the next part of Mr Connor’s argument, which has some attraction, although the conclusion in paragraph 29 seems remarkable: “Approved Assessable Development 20. As already mentioned here, the development approvals granted for the office were a development permit for a material change of use and a preliminary approval for building works. 21. It is respectfully suggested that the appropriate test in determining whether “assessable development” would arise from a change of a condition of an approval for a material change of use is, to consider whether it would give rise to “development” in the first instance. 22. In the case of a material change of use, that will mean, in circumstances such as the present, whether there is a material -- 15 of 25 -- 16 change in the intensity or scale of the use of the premises as a consequence of the change to the condition. 23. Given the careful examination of these issues by Mark Clayton in his affidavit, it is submitted that the alterations to the development brought about by changes to conditions will not be a material change in the intensity or scale of the use of the premises. 24. In particular: (a) the maximum building height has increased by only 400mm and then at only one location; (b) the overall building height of the changed building is substantially the same as the approved development; (c) whilst building setbacks of the upper level have been reduced, the built form of the building will not be changed; (d) no additional overshadowing will arise; and (e) the changes do not unreasonably adversely impact upon the visual presentation of the building. 25. As for the preliminary approval for building works, it arises out of an unconventional provision of the City Plan which provides: “In some cases the level of assessment table requires only material change of use, operational work, building work or reconfiguration of a lot to be assessed against the planning scheme. If the level of assessment table does not specifically refer to one of these components, any material change of use and/or building work (associated with a use or structure specified in the level of assessment table) will need to be assessed against the planning scheme (other than minor building work and any other exempt development). Assessment of building work against the planning scheme results in preliminary approval for building work. A subsequent development permit for building work will be issued only when the building has been assessed against the Standard Building Regulation.” (underlining added) 26. At the time the development application was made and approved, the land was included in the Light Industry Area. In the table of assessment for the Light Industry Area, any -- 16 of 25 -- 17 office use is impact assessable. An office when 250m2 or less in gross floor area and complying with the applicable Acceptable Solutions of the Centre Design Code is generally appropriate. 27. There is no reference to any other office development in the tables of assessment and accordingly this development becomes assessable under that category of development identified as “generally inappropriate” under paragraph 3: “any other material change of use”. 28. Notwithstanding that a preliminary approval for building works was sought and approved, it is not perfectly clear that this was necessary under the planning scheme, given that the requirement of the scheme in section 2.6 only seems to require a preliminary approval for building works if “the level of assessment table does not specifically refer to one of those components”. 29. Clearly, the City Plan only requires an office larger than 250m2 to be assessed as a material change of use, not building works. It is respectfully suggested that building works were not assessable under the planning scheme when this development application was made or approved. 30. It follows, adopting the Applicant’s approach to the proper construction of assessable development, the entity that considers the change to the condition need not concern itself with different assessable development that may need to be assessed and decided at some time in the future. 31. That would be true in the context of the Council’s suggestion that changes to the City Plan would mean that a preliminary approval for building work might now be required. In addition, the Court has the comfort of knowing that if that is true, then the Applicant would commit a development offence in the event that it proceeded with the assessable development without a development approval. 32. Even if that were not true, the test for determining whether assessable development arises out of a preliminary approval for building work surely cannot be that the building works are different in some meaningful way from that which was the subject of the approval. It is respectfully suggested that adopting a purposive approach that the correct test is to enquire whether the changes to the building works, assessable under the planning scheme, are so different as to require a different or further assessment or mean that the original assessment was no longer valid. -- 17 of 25 -- 18 33. Here, given that there are no provisions of the City Plan which require an assessment about building works beyond that for a [material] change of use, the Court could be satisfied that separate or different assessment is required in the circumstances.” [19] In Jahnke v Cassowary Coast Regional Council [2009] QPEC 36, I adopted a generous construction of “involving” (to bring in for purposes of processing a development application associated development not immediately applied for which could not be implemented without some further approval being applied for and obtained) and have been anxious in this matter not to reason inconsistently. The statutory construction exercise here is very similar, having to do with the requirement that “no assessable development would arise from the change” in s 3.5.33(1)(b) of IPA. The consequence in Jahnke was to confirm the involvement for a development application of referral agencies whose input was likely to add in a helpful way to the material about the development application available for reference by members of the public who might wish to consider becoming submitters. That outcome was seen as appropriately advancing the purpose of IPA within the meaning of that Act (the court has a general responsibility under s 14A of the Acts Interpretation Act to interpret every Act by preferring the interpretation which best achieves its purpose under s 14A). Here, inevitably, there will be an assessment process preceding the obtaining of the necessary building permit authorising building work to occur. There is no point at all in requiring a further assessment by the Council, which has fairly indicated to the court that there is nothing new of any concern requiring assessment against the planning scheme. I think it is a strained and unsatisfactory interpretation which says that building work “would arise” from the change of condition. The change of condition is necessary before additional building work can happen, but does not authorise it; building work will not happen except pursuant to a building permit yet to be obtained; it does not “arise” at this stage. [20] During the argument there was some discussion about what might be seen as an anomaly of the Council changing conditions set by the court. In Rose Bay Developments the Council, applied to under s 3.5.33 of IPA, was unwilling to approve changes, considering that it had no power to do so because of the prior involvement of the court. Judge Wall (at 342) considered that the Council there did have power to change the conditions, following Judge Pack’s order dismissing a submitter appeal against the Council’s approval of a development application (although the court indicated minor changes to a couple of conditions were appropriate), because there should have been issued (by the Council) an amended development permit. Here, we have the arguably odd situation of the Council which never determined to grant an approval being in a position of changing the approval created by the court’s order under s 3.5.24. As it happens (and it is likely to happen in the typical case) changing the approval will create inconsistency with the conditions set by the court, assuming they still stand. One would think something needs to be done about that in the court. Fogg, Meurling and Hodgetts, Planning and Development Queensland at 3-1178 (4560C) refer to experience of prudent developers seeking “reassurance” from the court. [21] Here, I am of the view that it is conditions of the approval being changed, rather than the approval itself (although both will become different) which was the -- 18 of 25 -- 19 conclusion announced on 15 May 2009 for which the brief reasons reproduced in the appendix below were given. Meaning of “would arise” [22] There is a more than respectable argument that assessable development (building work) does not “arise” especially if the qualifier is would, rather than could. The distinction was important in R v Edwards [2009] HCA 20 see [23] to [24]. The application was conducted on the basis that “building work” could be substituted for assessable development in s 3.5.33(1)(b) (May 15, p 6). [23] “Arise” or some variant is encountered in a limited number of contexts, often statutory, in phrases such as “arising out of the use of a motor vehicle”, “arising out of…employment”, “if a claim, difference, dispute or question shall arise” or “question of law arising”. See Butterworths’ Words and Phrases Legally Defined (2d) 1: 110-11, which notes: “[The Commonwealth Conciliation and Arbitration Act 1904 to 1965 (Commonwealth of Australia), s. 31 (2), provides: ‘The Court may, if it thinks fit, in any proceeding before it, at any stage and upon such terms as it thinks fit, state a case in writing for the opinion of the High Court upon any question arising in the proceeding which in the opinion of the Court is a question of law.’] “The…phrase, ‘upon any question arising’, is of central importance. It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. Remote or merely possible relation of the question of law to the facts is not enough to make the question ‘arise’ in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of ‘arising’…’Arising’ means necessary for the decision on the ascertained or asserted facts of the case.” Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australasia (1925), 36 C.L.R. 442, per Isaacs, J., at pp. 450, 451.” and the statement of a Canadian judge that “to arise”: “is an intransitive verb and connotes spontaneity, or action without external influence.” [24] Isaacs J’s dictum was referred to in Director-General, Department of Natural Resources v Gleeson [2007] NSWLEC 749 at paragraph 19: “A question does not arise merely because it may arise later”. See to like effect O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, 363 per Brennan J, McHugh J agreeing (376). [25] More generally, the Macquarie Concise Dictionary tells us: -- 19 of 25 -- 20 “arise, arose, arisen, arising. 1. to come into being or action; originate; appear; new questions arise. 2. to result or proceed (fol. by from). 3. to move upwards. 4. to rise; get up from sitting, lying, or kneeling.” and the Oxford English Dictionary On-line that ‘arise’ means in the relevant aspect: “III. To spring up, come above ground, into the world, into existence. … 15. To be born, come into the world of life or action. … 17. Of circumstances viewed as results: To spring, originate, or result from. … 18. Of matters generally: To spring up, come into existence or notice, ‘come up’, present … …” [26] In the context of cutting down the availability of a provision authorising the court to change a development condition it has set (which confers a useful and unremarkable jurisdiction) on the basis that it really changes the approval, I am disinclined to hold that assessable development would arise from changes of the nature and dimensions encountered here (cf Parmac). If necessary, given the yet to be satisfied requirement (without which no building work can lawfully be carried out) of a building permit, I would rule that assessable development could arise but not that it would arise. [27] There is no single “right” answer to a request to change a condition under s 3.5.33. No such request should be acceded to without due inquiry. As indicated, the court can be expected not to overlook the effects for the real world and the consequences for the community of its decision; where appropriate interests and concerns of persons other than the developer and the Council will be considered. I have been concerned about the increased shading of a couple of neighbouring properties in Powell Lane in winter, shown in shadow modelling placed before the court, particularly in the case of the one that it appeared might be a residence. The concern dissipated when it was ascertained that the uses of those properties were industrial; they are described as a motor repair shop and exhaust fittings and upholstery businesses. Mr Hinson was clear that the Council had nothing to say about the “merits” (14 May, p 13). [28] It has no bearing on the fate of the present application, but is of some interest that the site is now subject to the new Albion Neighbourhood Plan. A new development application for the whole proposal (as the applicant would now propound it) would be code assessable, and the prospects of satisfying the Council that relevant performance criteria were satisfied would seem strong in the circumstances (14 May, pp 10-13). There is little attraction in forcing the applicant to make a new application to the Council in the present circumstances. -- 20 of 25 -- 21 Appendix -- 21 of 25 -- State Reporting Bureau Transcript of Proceedings 1-1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. REVISED COPIES ISSUED State Reporting Bureau Date: 2 June, 2009 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Application No 1191 of 2009 DIMENSIONS PROPERTY GROUP PTY LTD (ACN 083 934 249) Applicant and BRISBANE CITY COUNCIL Respondent BRISBANE ..DATE 15/05/2009 ORDER WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 22 of 25 -- 15052009 D.1 T(2)07-08/MAA(BNE) M/T BRIS11 (Robin DCJ) 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I'll publish reasons for this decision but in short compass. I don't think I am constrained by Court of Appeal authority (Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410) from acting under section 3.5.33, although I am satisfied I am constrained by that authority from granting relief under section 4.1.5A. Mr Connor has been careful not to place reliance on the earlier decisions of this Court referred to in Hayday Pty Ltd v Brisbane City Council [2006] QPELR 40, preferring to advance a test to slightly different terms. I think that that results in giving, not only the Integrated Planning Act, but also City Plan 2000 their intended effect in this context, which again raises the untidy inter-relations of section 3.5.33 and section 3.5.24. I note that in Hayday there was an alternative basis provided by his Honour to find assessable development arising from a change of conditions and I note that in Metrostar at first instance, it would appear that Senior Judge Skoien didn't regard the addition of new floors to a number of houses as building work, amounting to assessable development: See [2006] QPELR 536. I'm very much alive to the distinction between changes to the development rights a person has, and changes to the conditions in accordance with which those rights may be exercised, although in some cases, of which the present seems to be one, it boils down to a distinction without much of a difference. In Parmac Property Pty Ltd v Redland City Council [2008] QPELR 120, if I recall it correctly, I considered that it was the -- 23 of 25 -- 15052009 D.1 T(2)07-08/MAA(BNE) M/T BRIS11 (Robin DCJ) 1-3 ORDER 1 10 20 30 40 50 60 approval being changed rather than the conditions. On this occasion, there being little more than the conditions set by the Court's formal order, I think it's correct to regard the conditions as being changed so that there might be problems about Mr Hinson's suggestion, or submission, on behalf of the Council, that what the applicant ought to have done was apply under section 3.5.24. In substance, I think that the development the applicant proposes has already been assessed in the real world that there is little point in assessing it further and complicating the whole process of obtaining development approvals more than need be done. I record that the Council has very fairly made it clear that it doesn't assert that there's any material change of use occurring here, in terms of increased scale or intensity of the development proposed. There's also been no positive suggestion of anything in City Plan against which the modest increase in the enclosed area on top of the building, and modest height increases not exceeding 400 millimetres to some elements there generate anything that might cause complications in an assessment process for the necessary building permit that didn't refer to City Plan. I've added liberty to apply to the order, just in case the Council (which the undertakings required of the applicant will see fully informed) should wish to approach the Court, if it be possible, to attempt to have any unfortunate consequences -- 24 of 25 -- 15052009 D.1 T(2)07-08/MAA(BNE) M/T BRIS11 (Robin DCJ) 1-4 ORDER 1 10 20 30 40 50 60 of any misconceptions that I may be labouring under attended to. ... ----- -- 25 of 25 --