Zarb v Brisbane City Council

[3] The site contains approximately 450 m². The south-western boundary has frontage to Teneriffe Drive. The south-eastern boundary adjoins a steep section of an unconstructed road reserve which extends from the constructed section of Abercrombie Street to the north-east. This unconstructed steep road reserve has been attractively landscaped. The reserve is traversed by a footpath which links Abercrombie Street with Teneriffe Drive via the footpath and a flight of stairs.

[4] On 17 September 2002 Mr Zarb lodged a code assessable development application for a development permit for a material change of use for a dwelling house. The planning report which accompanied the application relevantly noted that access to the proposed dwelling house was to be obtained from Teneriffe Drive via a 6 metre wide cross-over serving a double car garage. The Abercrombie Street road reserve adjoining the site was recognised as "an established park containing features such as landscaped garden beds, footpath and lighting" and it was "... not reasonably expected that Abercrombie Street will be construed along the site boundary ... (as) it has been developed by Council as a pocket park".

[5] During the assessment of the development application, Mr Zarb confirmed that vehicular access would not be obtained via the Abercrombie Street reserve.

[6] The application was approved, subject to conditions, on 4 December 2002. Thereafter a conditions appeal was lodged by Mr Zarb.

[7] In the meantime, in June 2002, the Council had applied to the Department of Natural Resources and Mines ("DNRM") to close the unconstructed section of the road reserve of Abercrombie Street. Mr Zarb objected to that and the application was refused in August 2003.

[8] Subsequently, in September 2003, Mr Zarb applied to the Council for a permit to construct a driveway from Abercrombie Street through the unconstructed reserve. That application was refused on 4 March 2004 on the grounds that:

s "Alternative road access from Teneriffe Drive exits;

s Council has developed the road reserve as public open space area and your proposal would compromise those improvements;

s Under the provisions of the Local Government Act Council has the right to regulate the use of roads including the right to prevent a road being used by certain classes of traffic. In this instance, Council is allowing pedestrian traffic only to use this section of road reserve."

[9] The road reserve area has also been the subject of community interest. Notwithstanding that the development application required only code assessment, a number of local residents objected to the proposal for a driveway being constructed through the "Abercrombie Street Parkland".

[10] In September 2004 Mr Zarb informed the Council that amendments were proposed to be made to the application including the addition of a concrete pad/hardstand "upon which a vehicle might be parked at the Abercrombie Street frontage" of the land together with an associated driveway and gate.

[11] The driveway was depicted on drawing 0332-DR2A dated 26 September 2003 to have a 4 metre width extending approximately 20 metres from the unconstructed section of Abercrombie Street to the eastern corner of the subject land. The construction of the driveway involved works in the road reserve including the relocation of the existing footpath, and a loss of existing landscaping.

[12] On 28 January 2005 His Honour Judge Newton determined that the change was not a minor change.

[13] The issues which have been identified can be summarised:

[14] It is necessary to set out in full the relevant passages of the reasons of Newton DCJ. They are:

[3] The present appeal against that decision was filed on 8 January 2003; the appeal relating only to certain conditions of the approval which required the appellant to pay a range of infrastructure contributions. I was informed that the dispute concerning those conditions is expected to be resolved by the parties. However, prior to any consent order being placed before the Court, the appellant has indicated that it wishes to make a change to the application. The details of the proposed change include the addition of a concrete bay/hardstand area at the Abercrombie Street frontage of the subject property, together with an additional point of access, gate and driveway. The creation of the vehicle crossing into Abercrombie Street, which will be a second crossing in addition to the existing vehicle access in Teneriffe Drive, will require consequential works in the Abercrombie Street road reserve. The preliminary point is whether or not the Court is able to hear the appeal upon the basis of the new plans.

[4] S 4.1.52 of the Act provides that an appeal is by way of hearing anew but if the appellant is the applicant for a development application, the Court must not consider a change to the application on which the decision appealed was made, unless the change is only a minor change. Thus, a change to an application after the assessment manager has made a decision may be taken into account by the Court in hearing an appeal against the decision of the assessment manager only if the change can be shown to be a minor change.

[5] There is no definition of "minor change" for the purposes of s.4.1.52 of the Act. The dictionary contained in Schedule 10 to the Act does include a definition of "minor change" but that definition is confined to a development approval and does not extend to a development application. Whether the statutory definition should be considered in relation to a development application has been the subject of the differing views expressed by Judges of this Court. In Papas & Anor v Brisbane City Council [2000] QPELR 216 at 217 Quirk DCJ made the following observations: (not relevant to this application)

[6] Although the circumstances of a case may favour the adoption of a comparable view of the concept of "minor change" for both development approvals and applications, it is not permissible, in my opinion, to assume that the legislature intended such an approach to be adopted in every case. Had the legislature intended to apply the definition of "minor change" in Schedule 10 when interpreting s.1.4.52 of the Act, it would have been a simple matter to clearly express such intention. The legislature has seen fit not to do so and there is no warrant, in my view, for importing the statutory definition to a development application as a matter of course.

[7] In considering whether in this case the amended application constitutes a "minor change" to the original, it should be noted that the new plans do involve the addition of a new element to the original development proposal in that it is proposed to install a driveway leading to the property from Abercrombie Street. I note the comments of Hinson ADCJ in Heritage Properties Commercial Pty Ltd v Maroochy Shire Council & Anor [1999] QPELR 109 at 114 that:

"... the addition of some new element to a development proposal is inherently more likely to alter the nature and character of that development in a way which justifies a conclusion that the modified proposal is markedly different from the original proposal rather than being materially the same proposal ... Everything depends, of course, on the particular circumstances of the case, including the size and nature and extent of the added element or the deleted element."

(emphasis added)

[8] With respect to the ground level slab which forms part of the amended plans, little time need be allocated. This, clearly, in terms of size, nature and extent, can be regarded as a "minor change". The main point for consideration in this case concerns the proposed driveway leading to the property from Abercrombie Street. Counsel for the appellant submits that because the plans show no connectivity between the proposed new access and the garage, it may be assumed that the proposed Abercrombie Street access will not be the primary access which will remain at the Teneriffe Drive frontage. It was further submitted that by its inherent nature, the Abercrombie Street access will be an occasional access used predominantly by trade and service vehicles visiting the property and perhaps occasionally by the owner as a hard stand area for car washing. This may or may not be the case and there is no evidence before the court in this regard. However, impacts of this nature are not relevant to the determination of the present issue. (emphasis added)

[9] The codes against which the original application and the proposed amended application fall to be assessed are, in each case, the House Code and the Residential Design - Character Code. It may be accepted that the codes do not concern themselves with the location of access, the number of accesses or any asserted impacts from a particular access proposal. However, the Character Code under Performance Criterion P3 provides that: "The building setting must complement the traditional setting of pre-1946 houses nearby in the street." Compliance with this criterion typically involves a "single-width driveway" with one of the acceptable solutions stating that "cross-over width is a maximum of 3m." The proposed second access driveway from Abercrombie Street is 4m wide at the property boundary. It was submitted on behalf of the appellant that the issue of the width of the driveway is clearly a minor one in the context of the house proposal overall. (emphasis added)

[10] I am unable to agree that the proposed inclusion of a second access driveway to the subject property, which is one-third greater in width than the maximum width permitted under a relevant acceptable solution in relation to complementing the traditional setting of nearby residences, should be regarded as a "minor change". This added element to the development proposal may well raise new issues for assessment as compared with the original proposal. (emphasis added)

[15] If Mr Zarb now seeks to raise before me the very point which His Honour decided, he is not permitted to do so. A disappointed litigant cannot go from judge to judge, re-litigating a point in the hope of getting a favourable decision. His only remedy is an appeal to the Court of Appeal. I must therefore decide what was the very point which His Honour decided.

[16] I have emphasised the passages of His Honour's reasons which I consider set out the basis for his decision and in particular what he found to be a change which was not a minor change.

[17] The "new element" which His Honour identified in para [7] of his reasons was clearly the proposal to install the Abercrombie Street Driveway. This is emphasised by use of the expression "main point for consideration" in para [8]. Then there is his reference to a "single-width driveway" in para [9], in the context of the new building setting complementing the traditional setting of nearly pre-1946 houses.

[18] "Single-width driveway" does not, in my opinion relate to the actual width of the proposed driveway, even though an acceptable solution refers to a maximum width of 3m. What is referred to there is the fact that the traditional pre-1946 house had a single driveway of a width suitable for the use of domestic traffic. With that might be contrasted non-traditional dwelling house driveways, such as "in" and an "out" driveways for commercial buildings or multi-unit buildings. The emphasis is on the traditional single driveway. I see nothing in His Honour's reasons to think he was not of that view; indeed his reasons illustrate it.

[19] I regard the phrase "which is one-third greater in width than the maximum width permitted under a relevant acceptable solution" as merely a description of the proposed driveway. At most it may mean an extra reason why it did not constitute a minor change. But it does not supplant the extra driveway as being the real fact which in his judgment created the change which was not a minor change.

[20] Thus the application before me is res judicata and cannot be re-litigated before me. It is not necessary to discuss the further submissions put before me.