Statutory Guideline 06/09 is helpful but is still a guide

In brief

The case of Dickson Properties Pty Ltd as Trustee for the Dickson Investment Trust v Brisbane City Council & Ors [2015] QPEC 18 concerned an application made by Dickson Properties Pty Ltd as Trustee to the Planning and Environment Court as part of a substantive appeal against a decision of the Brisbane City Council to refuse a development application involving a reconfiguring of a lot and a preliminary approval for a material change of use to enable the construction of dwelling houses in a rural area. The application sought an order that the proposed changes to the development application were minor changes for the purposes of section 4.1.52(2)(b) of the repealed Integrated Planning Act 1997 and section 350 of the Sustainable Planning Act 2009.

There were a number of changes proposed to the development application. The court was content that all of the proposed changes were considered minor other than the introduction of a flood emergency accommodation and assembly point, which required further consideration by the court.

The council did not oppose the minor change application. However, the application was resisted by a number of submitters who joined the appeal and were primarily concerned with Dickson Properties’ proposed methodology of dealing with significant flood events. Those submitters contended that the introduction of a flood emergency accommodation and assembly point would introduce a new use and new impacts and also increase the severity of known impacts.

The court acknowledged that the proposed flood emergency measures would have the potential to create new and not insignificant impacts. However, the fundamental nature and extent of the proposed development remained unchanged and these measures would be characterised as being operational in nature. Accordingly, the court concluded that the proposed changes were minor changes.

Court found that the introduction of the proposed flood emergency accommodation and assembly point would create new use and new impacts but the underlying dominant use remained unchanged

The proposed flood emergency accommodation and assembly point were introduced as a result of the joint expert meeting process. The submitters, who resisted the minor change application, considered the proposed flood emergency measures to be unsatisfactory and its introduction could not be reasonably described as being minor for several reasons. In particular, the proposed measures would:

• fundamentally alter the nature of the proposed development and introduce a new use
• involve the construction of a large and bulky building and the introduction of a car park, storage sheds and other services
• introduce new impacts and increase the severity of known impacts
• encourage residents to believe that they could remain and be safely accommodated in "fail safe" emergency flood accommodation as an alternative to evacuation

The court had regard to the Statutory Guideline 06/09: Substantially different development when changing applications and approvals when determining whether the introduction of the proposed flood emergency accommodation and assembly point would result in a substantially different development.

The court considered the following matters listed in the Statutory Guideline to be relevant, whilst noting that the matters listed in the Guideline were not intended to be exhaustive or definitive:

• involves a new use with different or additional impacts…
• dramatically changes the built form in terms of scale, bulk and appearance...
• introduces new impacts or increases the severity of known impacts…".

In relation to the first matter, the court acknowledged that the introduction of the proposed flood emergency accommodation and assembly point might create a "new" use for the proposed development. However, it did not change the dominant use contemplated in the development application, particularly given the infrequent and temporary nature of the "new" use.

As to the second matter, the court found that the proposed flood emergency accommodation "would not in any material way impact on the scale, bulk and appearance" of the built form proposed in the development application.

For the third matter, the court noted that the potential impact contended by the submitters was the introduction of a false sense of security which would prevent the proper response to a flood event, namely early mandatory evacuation. In the context of the proposed development, given that the land was subject to flooding and its associated risk to human life, the court considered the word "impact" in the Guideline was broad enough to encompass such a risk.

On this basis, the court was of the view that the introduction of the proposed flood emergency accommodation and assembly point had the potential to introduce new impacts.

Court found that the proposed changes did not change the fundamental nature and extent of the proposed development and by considering the changes objectively they would not result in a substantially different development

Nonetheless, in considering the introduction of the proposed flood emergency accommodation and assembly point objectively, the court found that the proposed changes to the development application would not result in a substantially different development.

This was particularly so where the overall purpose of the proposed development remained the same, the road layout was materially the same and the frontages to the Brisbane River were to remain undeveloped. Furthermore, no probative evidence was put before the court which supported the seriousness of the impacts contended by the submitters.

The court noted that the minor change application was proposing a solution to a flood-prone development and, by adopting the approach taken by the court in Parcel One Pty Ltd v Ipswich City Council and Ors [2007] QPEC 33, the proposed changes did not change the fundamental nature and extent of the proposed development and the proposed works would be characterised as being operational in nature.

It was therefore concluded by the court that the proposed changes were minor changes for the purposes of section 4.1.52(2)(b) of the repealed Integrated Planning Act 1997 and section 350 of the Sustainable Planning Act 2009.