Australia: 36/12 Wolter group holdings pty ltd v brisbane city council & anor [2012] QPEC 42

Planning and environment case updates

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Minor Change – where development application lodged by the applicant sought to vary the respondent's planning scheme (City Plan 2000) in a way that would make future applications in respect of the land code assessable for use as consistent with the Multi-Purposes Centre (MP4) – Convenience Centre subject to assessment criteria and applicable codes – whether an application to change the development application originally sought so as to make the proposal (where relevant) self-assessable rather than code assessable was a minor change for the purposes of s 350 of the Sustainable Planning Act 2009.

Facts: This was an application brought under s 350 of the Sustainable Planning Act 2009 (SPA) for an order that the proposed change to the development application was minor for the purposes of SPA.

On or about 27 June 2008, the applicant lodged an application for a preliminary approval to override the planning scheme for a material change of use for a Centre Activity Outside Centre (Convenience Centre) under the provisions of the Brisbane City Council's City Plan 2000. The proposal was for a small shopping centre located on the south-eastern corner of the intersection of Illaweena Street and Beaudesert Road, Drewvale.

By the date of hearing, the only live issue in the appeal related to the determination of an appropriate location for a traffic U-turn facility to provide access to and from Illaweena Street.

On 20 Dec 2011, the traffic issue was determined in favour of the applicant, and the Court made orders that further hearing of the appeal be adjourned to allow for the formulation of appropriate conditions and that the Court would hear from the parties about the need for any further orders.

On 14 March 2012, the applicant filed an application that sought an order that the development application be changed in relation to the way it sought to vary the planning scheme, in particular, that Centre Activities (except Hotel and Nightclub) be carried out generally in accordance with specified plans and be made self-assessable.

Pursuant to the transitional provisions of the SPA, the substantive appeal had been decided under the Integrated Planning Act 1997 (IPA), however the parties agreed that the application was to be determined by reference to s 350 of the SPA.

The relevant focus at the hearing of the application was on whether the change to the development application was a change to how the preliminary approval would operate and whether that constituted a change to the "type of development approval" sought under s 350 (1)(d)(iii) of the SPA. The applicant contended that on the basis of the history of the development application, the level of scrutiny, and degree of controversy provoked to that point, the change was intended to avoid the necessity of further development applications for material change of use and building work being assessable against the planning scheme. The applicant considered that while the proposed change affected how the preliminary approval operated, it did not amount to a change of the "type of development approval" under s 350 (1)(d)(ii) of the SPA that is that it was not a change from a preliminary approval to a development permit. The respondent contended that the changes to the development application proposed effectively converted the application from a preliminary approval for which future applications were required to an application whereby authorised development would have occurred without further applications being required.

Decision: The Court held, in refusing the application, that:

  1. it would be wrong to conclude that the meaning of "development approval" prescribed in Schedule 10 of the IPA constrained the meaning of the word "type" where used in s 350 of the SPA. Where the word "type" appears in s 350, it was a reference to the kind or class of development approval being sought which is capable of being distinguished in a real and material way, by reference to its substantive characteristics, from another kind or class of development approval
  2. the proposed change to the development application would have significant ramifications. It would change from being an application that envisaged various development approvals being sought which would be assessed by reference to a number of applicable codes, to one where it was intended that no further development applications would be required and the development would be compliant where it satisfied the acceptable solutions prescribed by one code only
  3. the development approval being sought would result in a materially different assessment regime than that initially applied for
  4. when the words in s 350(1)(d)(iii) of the SPA are given their natural and ordinary meaning and read in context, there was no basis for limiting that subsection to the types of changes contended for by the applicant. The construction contended for by the respondent was not only consistent with the natural and ordinary meaning of the words used, but more likely to reflect the intentions of the legislature
  5. the proposed change was not a minor change for the purposes of s 350 of the SPA. Substantive characteristics of the approval being sought differed from those initially sought to such an extent as to amount to a change of the type of development approval sought.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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