Proposed change to a development approval by adding roller doors in front of the car parking spaces was accepted as permissible change

In brief

The case of 48 Stuart Pty Ltd v Brisbane City Council [2016] QPEC 67 concerned an application for a permissible change to a development approval that had previously been issued by the Planning and Environment Court.

The development approval was for a multiple dwelling complex which included a driveway down the middle of the complex, with three units on either side of the driveway. Each unit was provided with two open car parking spaces located underneath it, one for the resident and one for the visitor of the unit.

The Applicant proposed to add roller doors in front of the car parking spaces and submitted that the proposed change was a permissible change under section 367 of the Sustainable Planning Act 2009. 

The Court approved the application and adjourned the matter for the Applicant and the Council to prepare a draft order and appropriate notices under section 376 of the Sustainable Planning Act 2009.

In approving the application, the Court first decided whether the proposed change would be considered a permissible change under section 367 of the Sustainable Planning Act 2009 by determining the following matters:

• whether the proposed change would result in a substantially different development; 
• whether it would not likely cause a person to make a properly made submission objecting to the proposed change.

Once the Court found that the proposed change was a permissible change, it considered the following in accordance with section 374 of the Sustainable Planning Act 2009:

• the information provided by the Applicant;
• the matters the Court would have had regard to if the request to make a change to the development approval were a development application;
• the submissions made about the development application the subject of the development approval and about the proposed change;
• the notice the Council filed under section 373 of the Sustainable Planning Act 2009 objecting to the proposed change.

Applicant sought to have conditions of the development approval amended to facilitate the proposed change

The Applicant sought to amend the conditions of the development approval to be amended as follows:

Condition 10
"Visitor car parking spaces must:
- Be used by bona fide visitors to the premises only:
- Be clearly labelled as 'Visitor Parking'; and
- Remain unimpeded by landscaping, water tanks, storage (temporary or otherwise)
Condition 25(iii)
"Parking on the site for twelve (12) cars and for the loading and unloading of vehicles within the site. Six (6) of these parking space are to be provided for residents and six (6) unrestricted  space for visitors, in the form of one (1) exclusive visitor park per unit. Provide Visitor Park Signage at the site entrance to guide the visitors into the site visitor parking spaces"

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

In determining whether the proposed change was a permissible change under section 367 of the Sustainable Planning Act 2009, the Court first considered whether the proposed change would result in a substantially different development.

The Court acknowledged that “substantially different development” is not a defined term under the Sustainable Planning Act 2009 and was to be given its “ordinary common sense meaning” in accordance with the Explanatory Notes to the Sustainable Planning Bill 2009. The Court also noted that the Statutory Guideline 06/09 was of assistance in determining whether the proposed change would result in a substantially different development. 

The Court accepted the evidence provided by the Applicant's traffic engineering expert that the proposed change would not change the form and function of the development in that there would be same number of visitor parking spaces designated solely for visitors. The Court also noted the number of visitor parking spaces to be provided was in excess of the requirements under the Council’s Transport, Access, Parking and Servicing Planning Scheme Policy under the Brisbane City Plan 2000.

The Court also accepted the evidence of the Applicant’s traffic engineering expert that the installation of the roller doors would not materially impact on the traffic and the parking arrangements for the site in that the invited visitors to the site would be provided with a parking space with or without the installation of the roller door.

In rejecting the Council’s argument that the visitor car parking spaces would no longer be used by visitors, the Court had regard to the following matters:

• the owners of the units confirmed that the visitor car parking spaces would be used by visitors;
• whilst there would no longer be unrestricted access to the visitor car parking spaces, the proposed change would still comply with conditions 10 and 25 of the development approval in that it would allow one visitor parking space for each unit used for bona fide visitors to the premises that would be unimpeded and clearly labelled as “visitor parking”; 
• the Applicant would be required to comply with the development conditions, including ensuring the residents do the same on the basis of the principles stated in Seabridge Pty Ltd & Anor v Council of the Shire of Beaudesert & Anor [2000] QPEC 95 and Harris v Scenic Rim Regional Council [2014] QPELR 324.

The Court did not consider the intensity of the development would be increased as a result of the proposed change in that the traffic impact created by the proposed development would remain the same despite the proposed change. 

The Court, on balance, found that the proposed change would not result in a substantially different development.

Court found that the proposed change would not cause a person to make a properly made submission objecting to the change

The Court only considered the submissions that were relevant to the proposed change. The main concern raised in those submissions was that the installation of roller doors to the visitor car parking spaces would prevent access by visitors, including trades people, which would result in visitors parking outside the site.

In finding that the proposed change “would not, because of the change, be likely to cause an objective person, fully informed as to the nature and effect of the proposed change, and the reasons why it is being sought, to make a reasonable, and relevant submission, objecting to the change, if the circumstances allowed”, the Court noted the following:

• the submissions needed to be considered objectively;
• the Council’s objection was made on the basis that there would no longer be six visitor car parking spaces which was incorrect;
• accepting the Applicant's traffic engineering expert's evidence, the residents’ submissions about traffic matters were not related to the proposed installation of roller doors;
• the submissions made for the original development application were based on traffic flow of 12 cars and this did not assist in determining whether the installation of roller doors to the visitor car parking spaces would have caused further submissions;
• the proposed change would not create new impacts and there was no increase in intensity of the known impacts and no changes to the operation of the visitor car parking spaces;
• if the Applicant were to make a development application to include the proposed change, it would be code assessable which meant that the residents would not have a right to make a submission objecting to the development application.

Court found that the proposed change would be consistent with the relevant planning scheme provisions under the Brisbane City Plan 2000 and Brisbane City Plan 2014

The Court found that the proposed change would satisfy the relevant planning scheme provisions as follows:

• the Applicant would provide a plan identifying the proposed change which clearly identified the visitor car parking spaces for each unit which would satisfy A17.3 “(that the location of visitor parking is discernible from the street)”;
• the proposed change would still provide six visitor car parking spaces which satisfied the requirement to provide a single shared visitor car parking spaces for the six units under the Brisbane City Plan 2000 and Brisbane City Plan 2014;
• A16 of the Brisbane City Plan 2000 only required 0.25 spaces per dwelling for visitors;
• the proposed change would still provide “the location of visitor parking (that) is discernible from the street” in accordance with A17.3 of the Brisbane City Plan 2000;
• the proposed change would provide parking that was “safe and convenient for residents, visitors and service providers” which was consistent with PO22 of the Brisbane City Plan 2014.

The Court approved the Applicant's request to make a change to the development approval to install roller doors to the visitor car parking spaces.