Arnold & Arnold Pty Ltd & Ors v Gold Coast City Council [2006] QPEC 75

1 [2006] QPEC 075 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND JUDGE ROBIN QC No 580 of 2006 ARNOLD & ARNOLD PTY LTD TRADING AS Appellants ARNOLD DEVELOPMENT CONSULTANTS, MARSHALL EARL POPE AND JEFF DWYER AS RESPECTIVELY MORTGAGEE AND RECEIVER UNDER MORTGAGE NO 704936193 and GOLD COAST CITY COUNCIL Respondent BRISBANE ..DATE 29/05/2006 ORDER CATCHWORDS: Integrated Planning Act 1997 s 4.1.52(2)(b) - "minor change" where reduction from 10 to 9 in sensitive site adjacent to a national park and straddling a watercourse, where urban footprint was now confined to one side of the watercourse, and where five eighths, rather than only one eighth of the site would be protected by a vegetation covenant. 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. -- 1 of 5 -- 2 ORDER HIS HONOUR: The Court makes an order in terms of the initialled draft. Given the extent to which the parties have resolved matters, the significant aspect of it is the Court's being satisfied, for purposes of section 4.1.52(2)(b) of the Integrated Planning Act of 1997, that a change made to the appellant's proposal is a minor change. My approach has always been that the Court has a public duty to be genuinely satisfied, rather than going along with common ground reached by the parties, in this instance the developer and the local government, there being no submitter involved in the developer's appeal against the Council's rejection of the development application. Mr Ure for the appellants has referred me to Grant v. Pine Rivers Shire Council (2005) QPEC 081 in which his Honour Judge Wilson SC collects a number of the authorities regarding what is a minor change, or, to use the language of the repealed legislation, a change or modification "of a minor nature" (see section 4.15(2)(a) and 4.15(3) of the Local Government (Planning and Environment) Act 1990. My impression is that applications to the Court to regard changes as "minor change" have a high record of success. That is no doubt explicable on the basis that as time passes and further consideration is given to development proposals, it is very likely that the possibility of changes which are beneficial in relevant respects will be identified. Developers may come to accept that most of what they wished to achieve can be achieved, by -- 2 of 5 -- 3 ORDER limited concessions or redesigning. It should not be thought that the Court's acceptance of changes as minor is automatic or any kind of formality. An unsurprising example of the Court's declining to characterise a change under the repealed legislation as minor is Judge Rackemann's decision in Heilbronn & Partners v. Gold Coast City Council [2005] QPELR 386. There are no equivalent difficulties here. The development site is a large one of 85,854 square metres west of Nerang which presently accommodates one residence which is to be demolished. On 31 March this year Judge Rackemann accepted as minor change the differences between the plan in Exhibit MGA01 to Mr Arnold's affidavit read on that day, and Exhibit MGA06. It is accepted that the Court's task today is to make comparisons with MGA01, the original proposal, rather than with the revised one. There shouldn't be any room in this context for an incremental process of change which would compare each proposal plan with its immediate predecessor where there had been a series of changes. The new plan is Exhibit 1. It is in every sense an improvement on the original proposal, particularly in respect of the reduction of the urban footprint. Originally some 10,915 square metres of the site were to be protected by means of a vegetation covenant, particularly important on the western boundary where the site adjoins a national park. The area now to be protected in that way is in -- 3 of 5 -- 4 ORDER excess of 54,000 square metres. The number of residential allotments is reduced from ten to nine; in each allotment, a building envelope is indicated. The environmental sensitivities of the proposal had much to do with a watercourse traversing the property roughly through the middle of it. For the first time a design has been arrived at which will have urban development confined to the southern side of the watercourse. Another new development is the removal of a proposal for a shared driveway giving access to a proposed lot which would otherwise have been landlocked. It is simple commonsense that in a context such as the present changes which mitigate and/or confine the impacts of development should be regarded as minor. They are not going to provoke submissions which would not have been generated by the original proposal. The assumption has to be made that hypothetical submitters are reasonable people who are not going to submit on a capricious basis, or one which can't be sensibly articulated. Mr Ure has informed the Court that his clients have agreed with the Council on the important components of the conditions package which it is now appropriate to prepare, given the Council's acceptance that the development application ought to be approved subject to appropriate conditions. The aspects Mr Ure has mentioned include fire management, vegetation management and geotechnical aspects. He has tendered as Exhibit 2 the condition already formulated in relation to effluent disposal, which is of special importance given the watercourse aspect. -- 4 of 5 -- 5 ORDER The Court is comfortably satisfied that the IPA provision I mentioned at the outset is satisfied and that the order dependent on it ought to be made. The appeal is adjourned to 28 June 2006 when it is expected that the conditions package will be ready. (Mr Everson, for the Council, stated that its hydraulic/effluent concerns extend to heart of the development area, which has been quarried with potential adverse consequences for the watercourse from runoff, etc; importation of appropriate fill will alleviate such concerns. Also that the deleted shared driveway was opposed for safety reasons to do with sightlines. At least one other shared driveway remains. Experience in the courts suggests shared driveways have much potential to cause trouble, that it is an improvement to do away with even one. See Averono v Mbuzi [2005] QSC 006.) -- 5 of 5 --