Insights

In brief

The case of Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 44 concerned an application to the Planning and Environment Court made by Solac No. 14 Pty Ltd involving a request to make changes to a development approval previously given by the court which related to the proposed construction of self-storage facilities on land situated at Coral Street, Maleny.

The proposed changes to the development approval were to “(a) allow the height of part of one of the proposed buildings to exceed 8.5m above natural ground level; (b) delay the dedication of land as a reserve for park; and (c) vary the stormwater management methods.

The court concluded that the proposed changes were permissible changes within the meaning of section 367(1) of the Sustainable Planning Act 2009 and as such allowed the changes to the development approval.

Proposed changes to the development approval were considered by the court in the context of whether they were permissible changes under section 367(1) of the Sustainable Planning Act 2009

The first proposed change to the development approval was to add the words "except as shown on the approved plans" to condition 3 so it would read as follows:

"The maximum height of the development must not exceed 8.5m above natural ground level, except as shown on the approved plans.  A verification survey of the building is to be carried out by a licensed Surveyor and a certificate lodged with Council at completion of the building work confirming compliance with the maximum allowable building height."

This proposed change would enable part of the proposed building to exceed the prescribed height limit of 8.5 metres above natural ground level, due to the sloping nature of the site. 

It was submitted that this proposed change involved a matter which was an oversight in the development approval because the prescribed height limit would nonetheless be exceeded if the proposed development was to be carried out in accordance with the approved plans.  Accordingly, the proposed change was necessary.

As part of the proposed change, the floor level of the proposed building was to be reduced by 1 metre, which was the lowest permissible flooding level, to achieve compliance with the prescribed height limit as far as practicable. 

The second proposed change to the development approval was to amend condition 58 to delay the dedication of a 10 metres waterway corridor buffer as follows:

"Prior to the commencement of use of Stage 1 of the development; the applicant must transfer and surrender to the Crown as Reserve for Park, the area defined within the 'Approximate Line of Open Space Conservation and Waterways Precinct', which is to be no less than 10 metres wide, as identified on the Proposed Site Plan, Project 06681, Sheet p1.01 Issue G, Dated 11/3/11, prepared by Covey & Associates Pty Ltd (as amended)."

It was submitted that it was not practical to rehabilitate and then dedicate the land before completing the adjacent building works. On this basis, the proposed change was to facilitate the construction of Stage 1 of the proposed development prior to the surrender and transfer of the waterway corridor buffer.

The third proposed change to the development approval was to enable a more contemporary and efficient stormwater management treatment method “which dispenses with the need for rainwater tanks, bio-retention basins and gross pollutant traps in favour of a swale and 'level spreader' system" which was approved in an operational works permit given by the Sunshine Coast Regional Council.

Court did not consider there being any change to the substance of the proposed development and therefore found that the proposed changes would not result in a substantially different development

In its consideration of whether the proposed changes to the development approval would result in a substantially different development, the court had regard to the Ministerial guideline No. 06/09 whilst noting that it was not intended to be exhaustive or prescriptive. It was ultimately a determination of facts and degree having regard to the effect of the proposed changes.

In the court’s view, the proposed changes involved no change to the substance of the proposed development. The proposed changes were "in the nature of refinements to the implementation of the development". As such the court found that the proposed changes would not result in a substantially different development.

Court was satisfied that the proposed change would not be likely to cause a person to make a properly made submission objecting to the proposed changes if the circumstances allowed

In considering the likelihood of the proposed changes causing a properly made submission, the court observed the remarks made by the court in the decision of Collard v Brisbane City Council [2010] QPEC 39 that "if circumstances allowed … the contemplation of the Court must necessarily be with putative submitters who may act reasonably in that regard".

The court further observed that the term “likely” had been subject to judicial consideration in other decisions of the Planning and Environment Court and varied meanings had been assigned to that term depending on the context. The prevailing view, whilst not settled, was that it meant "a substantial chance, a real, not remote chance, regardless of whether it is more or less than 50 percent".

By reference to Scanlon Group Pty Ltd v SCRC [2012] QPELR 394 and Orchard (Oxenford) Developments Pty Ltd (ACN 167 310 509) v Gold Coast City Council [2015] QPEC 11, and the meaning of “likely”, the court noted that it had to be satisfied that none of the proposed changes would, on the balance of probabilities, give rise to “a real, or not remote, chance or probability, of causing a properly made submission to be made objecting to any change, if the circumstances allowed.”

There were four submissions made in respect of the original development application. The matters raised in those submissions were relevantly concerned with water quality and visual amenity impacts.

The court considered the proposed changes in the context of those concerns and found that those concerns remained appropriately addressed. Having regard to the nature and extent of the proposed changes, the court concluded that the changes would not give rise to “any real or substantial chance or possibility of causing any reasonable decision to make a submission objecting to any proposed change, if the circumstances allowed.”

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