Zarb v Brisbane City Council

[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 differing views expressed by Judges of this Court. In Papas & Anor v Brisbane City Council [2003] QPEC 6 McLauchlan QC DCJ considered that for the purposes of s 4.1.52 the expression "minor change" should be construed without reference to the statutory definition. However, in Carillon Development Ltd v Maroochy Shire Council & Ors [2000] QPELR 216 at 217 Quirk DCJ made the following observations:

"[7] 'Minor change', as the term appears in this context, is not defined by the Act although, in Schedule 10, the following definition is found:

''Minor change', for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change -

(a)

require referral to additional concurrent agencies; or

(b)

cause development previously requiring only code assessment to require impact assessment; or

(c)

for a development requiring impact assessment - be likely, in the assessment manager's opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allow.'

[8] It could be observed that, of the three considerations identified in this definition, the last is of a kind that was considered of importance in the approach taken by the Court to 'modifications' prior to the present legislation.

[9] Although the definition in Schedule 10 is specifically applicable to development approvals, it would, in my view, be incongruous not to take a comparable view of the concept of 'minor change' in the interpretation of s 4.1.52. Some support for such an approach may be found in ss 3.2.9 and 3.2.10 which deal with changes that may be made to an application before it is decided by the planning authority. Section 3.2.10(c) focuses upon the likelihood of any change to an application attracting 'a submission objecting to the thing comprising the change'.

[10] By reason of s 4.1.54 (particularly in (3)) the decision of an appeal of this kind is taken to be the decision of the planning authority. It would be reasonable to suppose that the legislature would intend a consistent approach to changes to any proposal during the approval process."

[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."

[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.

[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.

[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.

[11]

Although some time, at the hearing of this preliminary point, was spent in debating whether the now proposed use of the road reserve in Abercrombie Street should have been included as part of the original development application, and whether the consent of the DNRM as owner of the road should have accompanied the application, it is, in the light of my conclusion as to the nature of the amended proposal, unnecessary to determine these points. Nor is it necessary to consider whether the amended development proposal would be entirely futile because there is no legal or practical possibility of the development proceeding.

[12]

The Court has no power to consider the proposed changes to the original development application on the hearing of the appeal, the changes not being minor.