Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redland City Council & Ors

The appeal was instituted pursuant to the Integrated Planning Act. Section 4.1.52(2) of that Act provides, amongst other things, that the Court must not consider a change to the application on which the decision being appealed was made, unless the change is only a minor change. The Integrated Planning Act has been superseded by the Sustainable Planning Act 2009. Pursuant to section 819 of that Act, the appeal is to proceed as though the SPA had not commenced. That is qualified, to some extent however, by section 821 which relevantly provides that:

"(2) For deciding the appeal, repealed IPA, section 4.1.52(2) applies -

(b) as if the reference in the repealed IPA, section 4.1.52(2)(b) to a minor change were a reference to a minor change as defined under this Act."

Accordingly, for the purposes of today, attention must be focused upon the definition of a minor change for the purposes of the SPA. That is, in turn, defined in section 350, in part, as follows:

"(1) a minor change in relation to an application, is any of the following changes to the application -

(i) does not result in a substantially different development; and

(ii) does not require the application to be referred to any additional referral agencies;

(iii) does not change the type of development approval sought;

(iv) does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment."

In this case the change does not offend subparagraphs (ii) to (iv) inclusive. The debate was whether it constitutes a substantially different development within the meaning of subparagraph (i).

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;

• 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.

Before turning to a consideration of whether, as a matter of fact and degree, the changes here proposed are properly described as being minor and, in particular, as not involving a substantially different form of development, there are further observations to be made, particularly bearing in mind the submissions of Mr Nahrung, on behalf of himself and his wife.

Some concern was expressed that, if the Court were to hold that the changes are minor changes that that might, in some way be seen as involving an endorsement of those changes. It was also a concern of Mr Nahrung that those parties who had not actively opposed the making of the changes ought not to be taken to be satisfied with the changed proposal. That is obviously correct.

The sole consideration which falls for determination today is whether the changes are minor in the relevant sense, so as to permit the Court to consider them. The question is not whether the proposal, as changed, is acceptable or not. That is something for debate at a later merits hearing, in the event that the changes are held to be minor.

Mr Nahrung also expressed a concern that today's application might be a first step, with other proposed changes waiting in the wings. It is, of course, possible for an applicant to apply to change its proposal on more than one occasion, but any application for a minor change must be assessed on its merits (in relation to whether it is minor). The fact that the Court is prepared to accept a change as minor (if that be the conclusion in this case), does not mean that the applicant is free to adopt any further changes. Each proposed change must be assessed against the statutory provisions.

The changes to the proposed plan of layout are described in a letter from the appellant's solicitors dated 19 June 2009, and are otherwise apparent from a comparison of the plans as they were before the council, and the proposed revised plan. It may be noted that the plans are described as a conceptual sub-division lay out. It has already been noted that the development application only seeks development permits in relation to stages 1(a) and 1(b). Insofar as the balance of the land is concerned, only a preliminary approval of a material change of use is sought. The final form of any reconfiguration on the other stages, and indeed, any decision on whether those stages ought receive a development permit are, of course, matters for future development applications.

The proposed layout makes a number of changes with respect to the areas beyond stages 1(a) and 1(b). Those changes include a change to the size, position and shape of proposed parks. Indeed, the proposed park provision is increased, in the changed application.

The connectivity of the internal road network has been changed, resulting in a revised allotment configuration. There are fewer cul-de-sacs and the sub-division takes a more rectilinear form. The residential footprint has been somewhat reduced, and the quantum of existing native vegetation to be retained has been increased. Storm water retention and treatment areas have now been included.

None of those changes, looked at individually, nor collectively, would, in my view, make the proposal a substantially different form of development. None of those were the focus of argument on the hearing of the application.

The matters which received greater attention in the argument are those which are dealt with in a report of Mr Reynolds, who is a Town Planning consultant engaged by the appellants. He swore an affidavit filed in these proceedings and was cross-examined. Those changes are related, in particular, to concerns held by the fourth co-respondents by election, but which, it may be added, are shared by the fifth co-respondents by election (even though the fifth co-respondents by election do not contend that the change is more than minor), and are related to matters of potential concern to adjoining land owners, Mr and Mrs Doek.

The Doek land lies between stages 1(a) and 1(b) of the proposal. The Doeks were adverse submitters in relation to the application, but did not elect to become parties to the appeal. A perusal of their submission reveals that they have a concern to protect the current agricultural activities which they carry out, and more particularly, to prevent a form of development encroaching which would be inconsistent with the continued conduct of those activities.

The Doeks are also are concerned in relation to the long term development potential of their property, and in that regard, stated as follows:

"The proposal physically isolates Mr and Mrs Doek's land and fails to make adequate provision for adequate access and efficient future development of their land. The plans lodged with council do not accord with the concept plans referred to in the Place Planning Report as future connections to Mr and Mrs Doek's land have been removed, leaving the only future access point (excluding the access restricted Cleveland/ Redland Bay Road) being through vegetation identified as having special protection area status."

The amended plan seeks to address the concern in relation to future connectivity by providing for an internal road layout which would facilitate future connection across the Doek's land. The other significant change, insofar as the Doeks are concerned, is that the changes to the internal road layout also result in a road separating a number of the proposed residential lots in future stages from the Doek's land.

Whilst those matters might not completely overcome the Doek's submission (a matter to be considered in any future merits hearing), it is difficult to see that the changes introduce any new, additional or greater impact upon the Doeks. The appellant also filed affidavit material deposing to conversations with the Doeks in which they are said to have acknowledged that the changed plans are an improvement, although they would not provide a letter of support to that effect.

The other matters which were the focus of the argument on hearing of the application relate, indirectly at least, to the concerns held by the fourth and fifth co-respondents in relation to the main access for the estate from Cleveland/Redland Bay Road. It is clear that both the fourth and fifth co-respondents hold serious concerns about that access. Their properties front Cleveland/Redland Bay Road, only a relatively short distance from that proposed access point. They are concerned that the introduction of the new access would adversely impact upon the safety and amenity of their access.

The changed plans do not propose a change to that proposed new access. However, the changed plans do, as I have already noted, involve a potential future connection between stages 1(a) and 1(b) through the Doek land. As a consequence they delete a proposed internal connection road which appeared further to the east, in the original plan.

The fourth co-respondents by election submit that the deletion of the previous internal connection, and its replacement with a possible future connection across the Doek property, is a significant change. It was said that this would result in all traffic from that part of the development north of the Doek land using the new Cleveland/Redland Bay Road access rather than traffic being split between that access, and the access in Beveridge Road, which could be used via the internal connection road. The consequence, it was said, is that the change makes the disputed intersection even more dangerous because it will involve a greater volume of traffic using that intersection.

The difficulty with that argument, however, is that the original proposal was not to provide that access way to the east as part of stages 1(a) or 1(b). The application showed proposed staging. The internal connection road was to be provided in stage 6, being the last of the proposed stages. Stage 1(a) and 1(b) were therefore always going to be constructed without an internal connection.

It is true that the deletion of the eastern internal access, and its replacement with a possible future access through the Doek property perhaps makes the achievement of a future internal connection less certain.

However, whether such a connection has been achieved at a particular point in time may well be a matter which becomes relevant to whether development permits are granted for future stages of the development. It does not really bear upon the change to the application, in so far as the development permits for stages 1a and 1b are concerned.

The other change which is indirectly connected to the fourth co-respondent's concern about the Cleveland-Redland Bay Road access, is the proposal now to provide internal driveways giving access to the rear of the lots owned by the fourth and 5th co-respondents by election. That change seeks to accommodate the referral agency response of the co-respondent, which required provision for future internal access "to all those lots which do not form part of this development application."

The concern - and indeed the understandable concern of the fourth and fifth co-respondents by election- is that once rear access is provided and the new intersection is installed, the Main Roads Department will move to deny them access to Cleveland-Redland Bay Road. That concern may or may not be misplaced, but the subject proposal does not itself propose any closure of the main road access. All the changed proposal seeks to do is to provide an additional access to those properties to the rear. Indeed in the case of the fourth co-respondent by election's property it does so by changing what was previously a driveway for proposed lot 206 to a shared driveway, so that can also be used by the fourth co-respondents by election. In this respect the changed proposal itself does not introduce any new or additional impact upon the fourth or fifth co-respondents by election.

It has often been said that the question of whether a development constitutes a minor change ought be considered broadly and fairly. In my view, that same approach is still appropriate under the definition in the SPA. I am satisfied that the change does not involve any of the matters listed in Statutory Guideline 06/09 and I am satisfied, in any event, that, as a matter of fact and degree, it does not represent a substantially different form of development.

HIS HONOUR: Order as per draft initialled by me and placed with the papers.