Australia: Planning and Environment Court approves a permissible change to remove internal access road

Last Updated: 13 June 2018
Article by Ian Wright, Nadia Czachor and Russell Buckley

In brief

The case of Sailmist Pty Ltd v Sunshine Coast Regional Council & Anor [2017] QPEC 63 concerned an application to the Planning and Environment Court for a permissible change under section 369(1)(d) of the Sustainable Planning Act 2009 (SPA) to remove an internal access road from an approved reconfiguration of a lot at Kundra Park, Queensland.

The Court considered uncontested evidence from expert witnesses and had regard to the Council's consent before ultimately finding the application fell within the meaning of a permissible change under section 367 of the SPA and should therefore be approved.

The Applicant applied for a permissible change to a development permit

The Applicant filed an application with the Court on 15 June 2017 which sought a permissible change under section 369(1)(d) of the SPA to a development permit granted by the Court in 2015.

The relevant development permit approved a reconfiguring a lot to create 27 lots on land situated at 672-680, 716-718 Diddillibah Road and 11, 13, 45, 79, 115 and 147 Eudlo Flats Road, Diddillibah and Maroochydore Road at Kundra Park. Evidence before the Court confirmed that the second of three stages was under construction by the time the application was commenced.

The Applicant satisfied the requirements of section 371 of the SPA by providing the Court with evidence of the relevant landowner's consent to the permissible change application.

The permissible change sought to remove an internal access road

The permissible change sought to remove an internal access road from the approved development so that all 27 lots would access the wider road network via a single internal road that connected to an intersection with Eudlo Flats Road.

The effect of this change would result in two lots close to Diddillibah Road having access to the internal road via long driveways and footpaths. The driveways on these lots would also allow emergency vehicles to access Diddillibah Road through a locked gate.

The Court considered the elements of section 367 of the SPA

The Court identified that the consideration of a permissible change application under section 369 of the SPA requires assessment against section 367 of the SPA, which relevantly states the following:

"367 What is a permissible change for a development approval

  1. A permissible change, for a development approval, is a change to the approval that would not, because of the change—
    1. result in a substantially different development; or
    2. if the application for the approval were remade including the change—
      1. require referral to additional concurrence agencies; or
      2. for an approval for assessable development that previously did not require impact assessment—require impact assessment; or
    1. for an approval for assessable development that previously required impact assessment—be likely, in the responsible entity's opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or
    2. cause development to which the approval relates to include any prohibited development.
  1. For deciding whether a change is a permissible change under subsection (1)(b) or (d), the planning instruments or law in force at the time the request for the change was made apply."

The Council consented to the Applicant's proposed permissible change

The Council consented to the Applicant's proposed permissible change as the internal road which was to be removed fell on a ridgeline and would therefore be extremely expensive and difficult to maintain to a safe standard.

The Court referred to the decision in Wroxall Investments Pty Ltd v Cairns Regional Council [2011] 1 QPELR 92 in which it was determined that issues relating to the road network external to the development are the responsibility of the Council. The Court found that it was appropriate to give significant weight to the Council's support.

The Court found that the proposed permissible change would not result in substantially different development

The Court found that the Ministerial Guideline: Statutory Guideline 06/09, 11 December 2009 may assist in determining whether the impacts of a permissible change will result in substantially different development.Nevertheless, the application was supported by uncontested evidence from expert witnesses, including a town planner, environmental scientist and bushfire consultant who all found that the proposed change would not result in a substantially different development for the following reasons:

  • The steep terrain and the need for vegetation clearing to give effect to the originally proposed intersection with Diddillibah Road would have resulted in less than ideal outcomes in respect of cost and safety.
  • The unsuitable nature of the proposed single means of road access to Eudlo Flats Road with respect to traffic capacity and safety in the event of a bushfire event.

The Court determined that no issue arose pursuant to section 367(1)(b) or (d) of the SPA

The Court determined that the application complied with section 367(1)(b) of the SPA after finding that the proposed change if included in a new application would not require referral to additional concurrence agencies or trigger impact assessment where it was previously not required. The proposed permissible change was also found to satisfy section 367(1)(d) of the SPA as it avoided the inclusion of prohibited development.

The Court found that there was no likelihood of a properly made submission being made in objection to the proposed permissible change

The Court identified that the majority of the 33 properly made submissions lodged against the original development application favoured the proposed reconfiguring of a lot. Two other submissions raised concerns about the appropriateness and safety of access onto Diddillibah Road.

The Court concluded that in these circumstances there was no likelihood of any properly made submissions being made in objection to the proposed permissible change.

The permissible change continued to be assessed under the SPA despite its repeal

The Court identified that it was appropriate to continue to assess and determine the permissible change in accordance with the SPA despite it being repealed and replaced by the Planning Act 2016 (Planning Act) on 3 July 2017. The Court came to this conclusion after finding that the Planning Act clearly intends to transitionally preserve the operation of the SPA provisions upon which the application relied.

The Court found that it was unnecessary to resolve submissions from the Applicant that characterised the application as being of an administrative kind

The Applicant relied on section 288 of the Planning Act to argue that the application was of an administrative character and only brought before the Court as a consequence of the original development permit having been given by the Court.

The Applicant made this submission to distinguish the application from a "proceeding" in the Planning and Environment Court within the meaning of section 311 of the Planning Act. In doing so the Applicant hoped to avoid more specific provisions relating to proceedings.

Whilst noting that section 288(1) of the Planning Act is expressed broadly enough to sufficiently capture the present application the Court found that it was unnecessary to finally resolve whether the Applicant's contention on this issue was correct.

The Court found that the changes sought by the applicant were permissible changes

The Court ultimately found that the changes sought by the Applicant were permissible changes within the meaning of section 376 of the SPA and ordered that the application be approved.

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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