Ausbuild Pty Ltd v Redland Shire Council [2001] QPEC 18 [2001] QPELR 409

PLANNING AND ENVIRONMENT COURT OF QUEEENSLAND CITATION: Ausbuild Pty Ltd v. Redland Shire Council [2001] QPE 018 PARTIES: AUSBUILD PTY LTD Appellant and REDLAND SHIRE COUNCIL Respondent FILE NO/S: PARTIES: FILE NO/S 4331 of 2000 ANDIWORTH PTY LTD Appellant and REDLAND SHIRE COUNCIL Respondent 4332 of 2000 DIVISION: Planning and Environment Court PROCEEDING: ORIGINATING COURT: DELIVERED ON: 3 March, 2001 DELIVERED AT: Brisbane HEARING DATE: 15 March, 2001 JUDGE: Judge Quirk ORDER: CATCHWORDS: COUNSEL: Mr D Gore QC for the applicant Mr J Haydon for the respondent SOLICITORS: Macfie Curlewis Spiro for the applicant Clayton Utz for the respondent [1] The matter before the Court concerns two separate appeals but, for the sake of convenience, they can be dealt with together. [2] Each matter involves an application for development permits necessary to establish a residential estate on land at Wellington Point. The subject sites face each other -- 1 of 4 -- 2 across Marlborough Road and have an area of 1.321 hectares and 11.5 hectares respectively. The layouts of the proposed estates can be seen in drawings B1931-06 and B1931-07 that were before the court. [3] Each application was refused and appeals have been lodged against that refusal. In each case the grounds of refusal focused upon the relevant Strategic Plan and Development Control Plan which: “Seek to promote the separation of the Shire’s urban communities through the provision of physical breaks consisting of open space and rural/non-urban land.” [4] It was contended that this proposal: “Fails to maintain the visual separation between surrounding urban communities and retain the open/non-urban character of the area.” In essence the complaint was that the intensity of the residential proposed was too great. [5] With a view to meeting these objections to the proposals they were, in each case, modified. The modifications can be seen in plan B1931-11. The respondent’s solicitors were notified that the appellant’s would seek to have the appeals determined on the basis of the new design. [6] The changes to the proposal were described as:- “A package of changes which are designed to improve the visual presentation of the land to the surrounding area for the purpose of better achieving the objectives of the Strategic Plan”. [7] Form a town planning perspective the changes were discussed in a letter of 13 March 2001 from the appellants’ planning consultant Mr Humphreys. Important features of the changes are:- -- 2 of 4 -- 3 • a reduction in the number of allotments and a corresponding increase in allotment size • widening of the road entrance to allow for improved landscaping effect • a re-distribution of area set aside for park and open space. Some smaller park areas have been removed and larger areas have been increased as has the overall provision of open space when the developments are both considered. [8] Whether the matter should proceed on the basis of this amended design must be decided by reference to s.4.1.52(2)(b) of the Integrated Planning Act which provides: “The court – … . (b) must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”. [9] For the purposes of this provision the term “minor change” is not defined but, in schedule 10, in respect of a development approval, “minor change” is said to mean- “a change to the approval that would not, if the application for the approval were re-made including the change – … .. (c) would be likely… . to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed”. [10] As was pointed out in Carillon Development Pty Ltd . v. Maroochy Shire Council 2000 QPELR 216, it would appear incongruous to take any different view of the concept of “minor change” in the interpretation of s.4.1.52. The determinative -- 3 of 4 -- 4 question therefore is whether the court is, on the evidence, satisfied that the changes to the proposal would be likely to attract an adverse submission that was not provoked by the proposal in its original form. [11] I think not. As was pointed out in Carillon, the question is to be answered not from the perspective of an expert town planning, but from that of a hypothetical potential objector who must be taken to be an average representative of the community. However, in my opinion, it is fair to see the hypothetical potential objector as taking a rational view of the matter and that is not inconsistent with what was said in Carillon. [12] In each case these proposals in their original and modified forms are essentially for the same form of development and made up of the same elements. I appreciate that it does not follow necessarily that the relevant test is met but, in this case, the changes hat have taken place are essentially a “lessening in intensity” resulting from efforts to bring the proposals more in line with the objectives of the principal planning documents. I am not satisfied that they are such as to be likely to give rise to adverse submission of a kind that was not provoked by the original proposal. [13] Accordingly I find that the appeals should proceed on the basis of the amended proposal as requested by the appellants. -- 4 of 4 --