Kenfrost (1987) Pty Ltd v Cairns Regional Council & Ors [2022] QPEC 48

Planning and Environment Court of Queensland|2022-10-17

(a) a development permit for reconfiguration of a lot (three lots into 65 lots, new road, and balance); and > > (b) a preliminary approval for a material change of use, including a variation approval to override the Cairns planning scheme to establish use rights associated with the Low-Density Residential Zone.

[2] Council refused the application. The Appellant appealed the refusal. Two submitters elected to co-respond.
[3] The issues in dispute have been defined and joint expert reports have been completed. Separate reports are yet to be completed. The substantive appeal is by the Appellant against the council's refusal of its application. The appeal is listed for hearing in the week commencing 31 October 2022.
[4] Having considered the issues in the appeal, the joint reports, and advice from the soils and agriculture experts, the Appellant proposes to change its application to add an agricultural buffer to the proposed development.
[5] The agricultural buffer is proposed on neighbouring land.
[6] The Appellant in this application seeks to change the application to include that agricultural buffer, and seeks orders permitting the hearing of the appeal on the basis of the proposed changed development application.
[7] Council does not oppose the minor change application. The First Co-Respondent by Election opposes the minor change application. It does so on the basis, broadly, that the proposed change is not a minor change because it would result in "substantially different development".

[10] Pursuant to section 46(3) of the Planning and Environment Court Act 2016 (Qld) the Court cannot consider a change to the development application unless the change is only "minor change".
[11] A "minor change" is relevantly defined in schedule 2 of the Planning Act 2016 (Qld) as follows:

_(a) for a development application - _

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

_(ii) if the application, including the change, were made when the change is made - would not cause - _

(A) the inclusion of prohibited development in the application; or

(B) referral to a referral agency if there were no referral agencies for the development application; or

(C) referral to extra referral agencies; or

(D) a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or

(E) public notification if public notification was not required for the development application...

[12] "Substantially different development" is not defined. The applicable principles are well established. The assessment of whether a change would or would not have that effect is a comparative task that involves evaluation which can be both quantitative and qualitative as may be relevant in the circumstances. Matters of scale and degree are often involved and the particular context and circumstances of the case are important. Whether a proposed change would result in substantially different development is to be considered broadly and fairly, rather than pedantically. The individual circumstances of the development in the context of the change proposed, must be considered.
[13] The definition of minor change in the Planning Act 2016 (Qld) does not preclude the Court from considering a change to a development application that is characterised as essential, material, or important. See Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2020] QPEC 47; [2021] QPELR 809 at 811 [43].[1] The test applies to the result of the change, not the change itself.
[14] Pursuant to section 68 of the Planning Act 2016 (Qld), the Minister has promulgated the Development Assessment Rules which include "Schedule 1: Substantially different development".
[15] Schedule 1 of the Development Assessment Rules contains a list of circumstances where a change may be considered to result in substantially different development. Schedule 1 provides, in part:
1. In determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development, in the context of the change proposed.
2. A change may be considered to result in a substantially different development if any of the following apply to the proposed change:

(a) involves a new use; or > > (b) results in the application applying to a new parcel of land; or > > (c) dramatically changes the built form in terms of scale, bulk and appearance; or > > (d) changes the ability of the proposed development to operate as intended; or > > (e) removes a component that is integral to the operation of the development; or > > (f) significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or > > (g) introduces new impacts or increase the severity of known impacts; or > > (h) removes an incentive or offset component which would have balanced a negative impact of the development; or > > (i) impacts on infrastructure provisions.

[16] Paragraph 4 does not purport to be a comprehensive list of changes that may result in substantially different development. Nor does it provide that something which falls within the numbered paragraphs must necessarily be adjudged to result in substantially different development, although it may be. The focus of the list in the Schedule is, in some respects, on changes that would involve new, additional, or increased impacts rather than on changes which tend to ameliorate impacts. See Heritage Properties Pty Ltd v Redland City Council & Ors [2010] QPEC 19; Abacus Funds Management Pty Ltd v Sunshine Coast Regional Council [2010] QPEC 141 and Canungra Commercial Pty Ltd v Scenic Rim Regional Council [2013] QPEC 1.

[17] I am satisfied on the evidence filed in support of the application, including the affidavit from the town planner, Mr Perkins, that subparagraphs (a)(ii)(A) to (E) inclusive of the "minor change" definition do not apply. Mr Perkins deposes that the proposed changes:

(a) would not cause the inclusion of prohibited development; > > (b) would not cause the need for any referral to a referral agency; and > > (c) would not cause a change to the level of assessment of the development application.

[18] With respect to Schedule 1 of the Development Assessment Rules, it is uncontroversial that the proposed change does not trigger any of the considerations save for paragraph 4(b): it results in the application applying to a new parcel of land.
[19] There is a subsidiary argument by the First Co-Respondent by Election that the change will introduce new impacts, and on that basis, subparagraph 4(g) is also raised. But in a way which, really, concerns itself with possible unknown future impacts on land which is not, in fact, the subject of the application.
[20] The proposed change is to include land, part of which is to be used as a 10 metre wide vegetated buffer. It is a relatively small piece of land on a larger lot that is bisected by an access road. The proposed buffer will be immediately to the north of the access road. The part of the land to be included in the development application is only that part on which the vegetated buffer is to be planted and maintained. That part of the new land is not currently used for agriculture, although it appears it may have in the past been farmed as part of a larger parcel. On the basis of the evidence, it is currently vacant land, not used for agricultural purposes.
[21] The Appellant submits that the result of the proposed change is to ameliorate the potential for impacts on adjoining rural land further south by incorporating a buffer which will operate to reduce the impacts of the proposed development on surrounding agricultural uses. In this way, the Appellant submits it will result in an improvement to the development. The Appellant submits that the very nature of the buffer is to reduce the potential for impacts arising from the proposed development. It is said to be by nature a "de-intensified" area of land which separates more intense from less intense land uses.
[22] The owner of the new land consents to that part of the land being included in the application and intends to sign a covenant to effect the proposed buffer.
[23] The inclusion of the new land would not result in there being any additional owners who ought to be consulted, nor would it involve any further impacts, strictly speaking, which might need to be considered in addition to those that already arise from the proposal in its current form.
[24] To the extent that part of the new land would be converted to a vegetated buffer, that would cause the function of that part of the new land to be different from its present function. Whether the buffer in its proposed location not adjacent to the rear boundary (that is, the southern boundary of the proposed lots) but separated from them will, in fact, be effective to ameliorate impacts is a matter that can be explored at the merits hearing. It is not, in my view, a matter that renders the change substantially different development.
[25] The First Co-Respondent by Election submitted that:

(a) the application and material filed in support of it is insufficient to establish that the proposed change is a minor change; > > (b) in the alternative, the proposed change is not a minor change because > > > (i) it includes new (rural) land; > > > > (ii) the new land would effectively be 'urbanised'; > > > > (iii) the new land may make possible the proposed scale and intensity of urban development; and without the new land, a significantly lesser scale and intensity of development would be possible; and > > > > (iv) the urbanisation of the new land to enable the proposed scale and intensity of development that otherwise would not reasonably be possible, manifests in a 'substantially different development'.

[26] Dealing with the first issue, I do not accept that the material is insufficient to establish that the proposed change is a minor change or that it is too uncertain or does not identify the changes in sufficient detail. The affidavit evidence filed in support of the application is sufficient to identify the location and size of the proposed vegetated buffer and its position with respect to the lot layout. In addition, there is a draft of the proposed vegetation covenant in evidence. Matters such as the detail of the proposed condition for the buffer and the proposed works are matters for the merits hearing and matters for conditions. This argument about uncertainty has no merit.
[27] Turning to the substantive argument that the proposed change is not a minor change, the mere fact that the change involves new land does not preclude a finding that the change is "minor".[2]
[28] The submission that the new land on which the buffer is to be created or that land between the buffer and the proposed lot layout would effectively be urbanised or converted to urban purposes appears to be concerned with possible future applications to change the development application or, perhaps, the consequences of approval of the development application.
[29] It is understandable that questions may arise in the minds of the parties who seek a refusal of this development application about the future use that might be made of the small piece of vacant land between the proposed vegetated buffer and the residential lots. But that is a matter which may be explored on the hearing of the merits. It is not a matter that renders the proposed change substantially different development. And in circumstances where there is no application for use of that piece of land other than the part proposed for the buffer, the court cannot proceed on the basis that that part of the land will be, effectively, urbanised.
[30] In the end, the matters raised by the First Co-Respondent by Election on this application are largely matters that go to whether the proposed development should be approved or not, and are matters to be explored in evidence at the hearing on the merits.
[31] While the buffer will apply to new land, the development will remain at all times one which ultimately seeks to facilitate a residential subdivision. Significantly, it will contain the same number of lots and lot layout. There is no suggestion that it changes the built form or that it involves a new use. There is no suggestion that it removes a component integral to the operation of the development. There is no suggestion of any different impacts on traffic flow or the transport network. There is no removal of an incentive or an offset component. There is no impact on infrastructure provisions. There is no suggestion of increase in severity of known impacts.
[32] The question of whether it may introduce new impacts because of the uncertainty of what use will be made of the small sliver of land between the vegetated buffer and the southern boundary of the residential lots is not a matter, in and of itself, which would result in a substantially different development. As I have already observed, it is a matter which, in my view, may be explored at the hearing on the merits.
[33] Considered broadly and fairly, the proposed change will not result in a substantially different development, notwithstanding that it will lead to the application applying to a new parcel of land. I am satisfied that the change is only a minor change for the purposes of the legislative provisions.
[34] Finding that the change involved is a minor change is not, in any way, an endorsement of the change or the proposed development. Those are matters for the trial judge to determine at the hearing on the merits. The respondent counsel has made it clear that although it accepts that the proposed change is a minor change for the purposes of this application, it continues to oppose the proposed development and maintains it ought be refused.

[35] In conclusion, the change application is allowed.
[36] I make an order in terms of the draft provided by the Appellant's solicitors, Holding Redlich, as amended by me, signed and placed with the papers. The matter remains as listed for hearing in the sittings commencing 31 October 2022.

[1] Applied in 11 Ludlow Pty Ltd v Brisbane City Council [2021] QPELR 902 at 903, [6].

[2] See, eg, Abacus Funds Management Pty Ltd v Sunshine Coast Regional Council [2010] QPEC 141.

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Judgment (15 paragraphs)

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