Planning and Environment Court of Queensland allows a minor change application, which varies the effect of the planning scheme to lock in minimum carparking for apartments

In brief

The case of Dunland Property Pty Ltd v Brisbane City Council [2021] QPEC 34 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the refusal by the Brisbane City Council (Council) of a change application to change a preliminary approval obtained under the now repealed Sustainable Planning Act 2009 (Qld) for mixed use development (Preliminary Approval) to include an additional condition to fix the minimum rate of on-site carparking required for two apartment buildings (Change Application).

The Court considered the threshold issue of whether the proposed change could be made to the Preliminary Approval, which by virtue of section 286(6) of the Planning Act 2016 (Qld) (Planning Act) is taken to be a variation approval. The Court was satisfied that the Change Application could be made because a variation approval is part of a preliminary approval (see schedule 2 of the Planning Act), a preliminary approval includes the conditions imposed on that approval (see section 49(5) of the Planning Act), and the change sought was to the conditions of the Preliminary Approval which gave effect to the variations. 

The primary issue for the Court was whether the Change Application was for a minor change, which relevantly required the Court to consider whether the additional condition would result in substantially different development. 

The Court found that the proposed changes would not result in substantially different development, and therefore allowed the appeal, set aside the Council's decision, and replaced the Council's decision with a decision making the changes. 

Background 

The Preliminary Approval approved a site master plan and precinct plan for the following mixed use development (see [2]), and relevantly set maximum building heights, minimum setback requirements, and nominated levels of assessment and associated assessment benchmarks for later development applications: 

• Residential (Terrace Home) Precinct – 84 two or three storey units of varying lot sizes to be completed over five stages.

• Mixed Use (Apartment Buildings) Precinct – 131 units within two eight storey buildings (Building A and Building B) and 57 units within a six storey building.

• Heritage Laundry and Convent Precincts – Existing heritage buildings to be adapted for reuse. 

• Local Park Precinct – A public park of 4,000m², internal private open space, and recreational areas.

• Roads and access – Internal roads, on-site carparking, and three access routes. 

The Change Application sought to specify the rates of on-site carparking for Building A and Building B consistent with the rates stated in the Transport, Access, Parking and Servicing Planning Scheme Policy (TAPS Policy) of the Brisbane City Plan 2014 (Planning Scheme) in existence at the time the Preliminary Approval was granted and the Change Application was made, and that were changed in later versions of the TAPS Policy. 

The rates of on-site carparking referred to in the Transport, Access, Parking and Servicing Code (TAPS Code) are extracted below.
 

Court finds that the Change Application does not result in substantially different development and is therefore a minor change 

The Court had regard to schedule 1 of the Development Assessment Rules and held that an assessment of whether the change is minor includes a comparative assessment of quantitative and qualitative data as relevant to the circumstances; that matters of scale and degree are often involved; that the context and circumstances of the case are important; and that the question is to be considered broadly and fairly rather than pedantically (at [14]). 

The Court held that the Change Application would not result in substantially different development for the following reasons: 

1. The Planning Scheme allows compliance with a code to be achieved by complying with the purpose, overall outcomes, and performance outcomes or the acceptable outcomes. "Compliance through meeting the performance outcome is just as much compliance as compliance through adoption of the acceptable outcome." (see [19] and [20]). 

2. Alternative solutions to Acceptable Outcome AO13 of the TAPS Code are able to be proposed in respect of "…the specific characteristics of the site and the resultant carparking demand", because the Planning Scheme provisions are performance based and are not mandatory requirements (see [9], [18] to [19], [31], and [36](b)(i)]).

3. All that is required to satisfy Performance Outcome PO13 of the TAPS Code is that "…on site carparking spaces…accommodate the design peak parking demand without any overflow of carparking." (at [19]). 

4. The nature of a preliminary approval which includes a variation approval is to lock in assessment benchmarks to apply to later approvals sought, irrespective of the provisions of the relevant planning scheme (at [23]). The change seeks to add a condition which will provide clarification and certainty, which is a legitimate purpose (at [34](b)(iv)), and "…will not change the built form or overall development intent of the subject matter of the preliminary approval"; and "…the change will have no practical effect on the nature, scale or operation of the development." (at [26]).

5. The change does not remove something integral to the operation of the development (see [21], [24], and [26]), and would, based on the uncontested traffic engineering evidence, provide sufficient on-site carparking so as not to generate overflow carparking, and further was not likely to lead to a reduction in the number of on-site carparks required by the TAPS Code (see [28], [34], and [36](b)(i) to (iii)). 

Court finds that submitters will not be prejudiced by allowing the Change Application

The Court held that the rights of the public to make a submission during public notification of a variation request were not affected by the approval of the Change Application because any further application in respect of the Preliminary Approval would be code assessable, the Applicant could choose to establish compliance with the TAPS Code in those future applications without adopting Acceptable Outcome AO13, the Planning Act permits minor changes to existing preliminary approvals without public notification, and the change is appropriate in the circumstances based on the uncontested expert traffic engineering evidence (see [37]).

Conclusion

The Court allowed the appeal, set aside the Council's decision, and replaced the Council's decision with a decision making the changes because the introduction of a condition specifying the rate of on-site carparking would not result in substantially different development, and the rate proposed was sufficient for the particular development in the circumstances.