PLANNING AND ENVIRONMENT COURT 
OF QUEENSLAND

CITATION:	Highgate Developments Pty Ltd v Sunshine Coast Regional Council [2017] QPEC 37	
PARTIES:	HIGHGATE DEVELOPMENTS PTY LTD
(applicant) 
v
SUNSHINE COAST REGIONAL COUNCIL 
(respondent) 	
FILE NO/S:	34 of 2017	
DIVISION:	Planning and Environment  	
PROCEEDING:	Application  	
ORIGINATING COURT:	Planning and Environment Court, Maroochydore 	
DELIVERED ON:	13 April 2017	
DELIVERED AT:	Planning and Environment Court, Maroochydore 	
HEARING DATE:	7 April 2017 	
JUDGE:	Long SC DCJ 	
ORDER:	As per draft, to allow the application to make permissible changes to the development approval, granted by order of this Court on 24 June 2016.   	
CATCHWORDS:	ENVIRONMENT AND PLANNING – APPLICATION –          s 369(1)(d) Sustainable Planning Act 2009 (SPA) – Where the applicant seeks an order be made, in the context of the agreement or consent of the respondent, to allow permissible changes to the development approval, granted by order of this Court on 24 June 2016  – Whether the proposed changes are permissible changes within the meaning of s 367 of the SPA 	
LEGISLATION: 	Sustainable Planning Act 2009 ss 367; 367(1)(c); 369; 369(1)(d); 371; 371(e); 944A	
CASES:	Collard v Brisbane City Council [2010] QPEC 39
Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 44	
COUNSEL:	R Wallerstein (sol) for the applicant
G Phillips (sol) for the respondent 	
SOLICITORS:	 p&e Law for the applicant 
Sunshine Coast Council Legal Services for the respondent 	

HIS HONOUR:   In this matter, the applicant seeks that an order be made, in the context of the agreement or consent of the respondent, that:

“The application to make permissible changes to the judgment of his Honour Judge Robertson, dated 24 June 2016, of that approval is approved in accordance with the amended conditions, referral agency responses and plans attached hereto and marked ‘attachment A’, comprising pages 1-34.”  

The proposed or stated premises for that order are that the Court is satisfied that there has been compliance with the requirements of the Sustainable Planning Act 2009 (SPA), with respect to the giving of the notice of originating application for the order, and that the proposed changes for the purposes of section 369 of SPA, are permissible changes.  

As to the first matter, there is evidence before the Court as to the service of the originating application and the respondent raises no issue as to compliance with the statutory requirements.  In addition and by way of correspondence from a delegate of the Chief Executive of the Department of Infrastructure, Local Government and Planning (see RVW5 to the affidavit of R.V. Wallerstein, filed on 6 April 2017) and provided on the basis, that pursuant to section 944A of SPA, that department is now taken to be the concurrence agency for the development, it is indicated there is no objection to the proposed changes.  

As the proposed changes are to an approval granted by the Court, on 17 October 2008 and upon an appeal from the respondent’s refusal of the original development application, this application is made pursuant to section 369(1)(d) of SPA.  Changes to the original approval of the Court have been previously approved, respectively on 29 April 2011 and 24 June 2016.  

The development is in respect of land situated at Tramline Rise and Pope Avenue, Burnside.  The originally approved subdivision was in respect of lots formerly described as lot 3, RP229635;  lot 1, RP173438;  and lot 401, CG5012, to be done in three stages. The first stage, which was amended as part of the 2011 court approval, has been completed, with the development of internal roads and 20 residential lots.  The remaining lots for stages 2 and 3 are now respectively identified as lots 500 and 501 on SP236179.  The request for permissible change granted by the Court in 2016, related to a revised layout and consequential amendments of conditions in respect of stage 2.  This application relates to lot 501 and the third stage of the approved development. 

The proposed amendments are identified to respond to the natural topography of the site and are, in essence, to change the layout or configuration of the subdivision and to realign an access road.  In summary, the proposed changes: 
  (a) 	increase the lot yield from 22 to 34 lots, which is an overall development increase from 61 to 73 lots;  
(b) 	comply with the existing minimum lot sizes for the development as approved;
(c) 	allow areas of land to be dedicated to Council as reserves along the existing watercourses (which under the current approval are drainage easements within the lots);  
(d) 	realign ‘road A’ through stage 3, to reduce the amount of earthworks and retaining required for construction and adjust ‘road B’ so that is positioned over predominantly level ground; and  
(e) 	divide stage 3 into stages 3A and 3B.  

The proposal includes approval of revised plans, being a subdivision layout plan, a preliminary staging plan and a slope analysis plan, with indicative building envelopes and contours.  In addition, there are consequential changes proposed to some conditions, including as to the sub-staging of stage 3 of the development and some clarification at the request of the respondent, who otherwise, as I have noted, consents to the application, and particularly identifies a view as to resultant improvement as to the subdivision.  That is particularly expressed in the better positioning of the road and that the allowance of extra allotments are appropriate to fund the provision of extra parkland, for instance.  

However, the Court must be satisfied that the proposed changes are permissible changes, within the meaning of section 367 of SPA.  Here, that requires only consideration of subsections (1)(a) and (c).  There was also an issue that arises under section 371 of SPA, which requires the evidenced consent of the owner of the land to which the development application attaches, if that is not the applicant.  

In this instance, the applicant is the owner of the lot which will be the subject of stage 3 of the development.  The land which is to be the subject of stage 2 is owned by a related company and the consent of that owner is in evidence.  However, stage 1 has been completed with 20 individual owners of subdivided lots and the applicant seeks to invoke the exception in section 371(e) of SPA. In circumstances where, as will appear, it may be accepted that the requested change does not materially affect the land of those owners, it is appropriate to also apply the example given for that paragraph and that because of the number of owners of that land, it is not practicable to obtain the owner’s consent.  It can be noted that the requirement is as to practicability and accordingly, issues as to the potential cost and delay in informing the separate owners and obtaining their consent, are to be considered in the context of whether there is any discernible impact in terms of material effect on those lots.  

The assessment as to whether what is proposed involves permissible change, involves an assessment of the cumulative effect of what is proposed, on the existing approval, which itself incorporates the previously approved changes.  

As to whether the proposal will result in a substantially different development, it is common ground that the town planning evidence should be accepted and that the contentions set out in paragraphs [41] to [46] of the applicant’s outline of submissions, should also be accepted.  It is necessary only to note paragraph [43], which states:
“The change does not introduce new impacts or increase the severity of known impacts:
(a) 	The majority of changes are internal to the development site.  The number of lots adjoining the southern boundary will remain the same and the number of allotments adjoining the east and west boundary will reduce.  Portions of the east and west boundary will be dedicated to Council as a reserve.
(b) 	While the number of lots on the northern boundary adjoining stage 1 will increase from three to six, the slope of the land will ensure views are not obstructed.  Mr Bell provides the opinion that views from lots 15-19 in stage 1 will generally improve as a consequence of the addition of vegetated reserves.  
(c) 	Road A will continue to function as an access street and a future road connection to the lot to the south is maintained, though the connection point has moved to an area with flatter terrain in the south-east corner.
(d) 	Given the conditions requiring Road A to be an access street, it will have sufficient capacity to cater for the increased lot yield.  
(e) 	The reduced size of the lots compared to that originally approved has allowed for an increase in lot yield (due to an intensification in development areas), the development footprint has reduced, allowing a greater area to be left as a reserve for dedication to Council.  
(f) 	The changes provide superior engineering and environmental outcomes for stage 3.”

All of that may be noted in the context that the uncontested evidence before the Court from a town planner includes:

“When viewed in an overall context, as clearly explained above, the amended subdivision layout is not considered substantially different development, as the general road layout and servicing arrangements remain similar.  The amended layout is far more efficient and better utilises the gentle slopes present over the northern and southern-eastern portions of the site and importantly, all allotments comply with the minimum lot size requirements under the Maroochy Plan 2000 (21 January 2005), being the relevant instrument.” 

And as a separate extract:

“In relation to the neighbouring lots 15-19 on SP236179, I acknowledge that the number of allotments along the northern boundary of stage 3 has increased from three to six.  The views from lots 15-19 will overlook the six lots as a consequence of slope,  however the views from lots 15-19 will generally be improved as a consequence of the addition of vegetated reserves.” 

The latter referenced extraction from that evidence, is both relevant to the application of section 371 of SPA, as noted earlier, and also to the question as to the likelihood of causing a person to make a properly made submission objecting to the proposed change, if the circumstances allowed.  As discussed in Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 44, at [20], the issue is whether, on the balance of probabilities, there is change that would give rise to a real or not remote chance or possibility of causing such a submission.  As noted in Collard v Brisbane City Council [2010] QPEC 39:
 “The Court contemplates putative submitters acting reasonably.” 

As is clear from section 367(1)(c) of SPA, the concern is as to provocation of an adverse submission, by the proposed change.  However, it is properly noted that some assistance may be gleaned from an understanding of the issues that have been raised in past submissions as to the development and in identification of any such issues that are related to the proposed changes.  It should be concluded that the proposal favourably deals with issues that were canvassed in the eight properly made submissions as to the original development application and that on the balance of probabilities, there would be no real prospect of causing any properly made submission objecting to the proposal.  In particular and in respect of: 
(a) 	the owner of a lot on the eastern boundary and the raised concerns as to responsibility as to fencing, the revised layout reduces the adjoining properties from eight to four lots and the majority of the boundary will now be with the proposed Council reserve; and 
(b) 	the proposed dedication of additional land to reserves along the vegetated watercourse is favourable to concerns that were more generally raised about such environmental issues and concerns as to dedicated parkland and impact on vegetation and wildlife.
  
Accordingly, it is appropriate to make orders in accordance with the draft which has been provided, which I will initial and place with the papers.  

Now, Ms Wallerstein, does that deal with everything?

MS WALLERSTEIN:   Yes, thank you, your Honour. 

HIS HONOUR:   All right.  Thank you.  All right.  We will resume with the other matter.  I will just wait while the parties get ready.  

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