​Increases in built form are relevant to whether there is a material change of use even where the nature of the use is unchanged

by Ian Wright, Nadia Czachor, Shaun Pryor
21 December 2017
By Shaun Pryor, Nadia Czachor and Ian Wright

In brief

The case of Gerhardt v Brisbane City Council [2017] QPEC 49 concerned an originating application to the Planning and Environment Court made by a private certifier seeking declarations that the proposed use of the subject land for residential purposes did not constitute a material change of use and that no development application for either a development permit for a material change of use or a preliminary approval for building work was required to be made to and approved by the Council.

Despite the historical use of the land also being for residential purposes, the Court observed that the development of the proposed house represented an increase in built form and introduced new impacts.

Accordingly, the Court found that the proposed house constituted a material change of use and would be code assessable under the Council's planning scheme.

The Court also found that the building work was code assessable against the Council's planning scheme, but that the type of further approval required to be obtained would be a product of timing. Accordingly, the Court was not satisfied that it would be appropriate to make a declaration about whether a preliminary approval would be required.

Background

A development application for a development permit for building work (residential dwelling) was made to the Applicant, being a private certifier. The Council was a concurrence agency for the development application for design and siting as well as for amenity and aesthetics.

In its concurrence agency response, the Council directed a refusal of the development application based on the amenity and aesthetic impact of the development and advised the Applicant that the proposed development constituted a material change of use.

Court found that changes in built form are relevant to whether there has been a material change of use

The Court examined the definition of material change of use in both the Planning Act 2016 and the Sustainable Planning Act 2009 and noted that the relevant limb of the definition was “whether there had been a material increase in the intensity or scale of the use of the premises” (at [24]).

In making this determination, the Court acknowledged that the appropriate comparison to be made was between the historical use of the land for residential purposes and the proposed development which was also for residential purposes.

The Applicant contended that there could be no material change of use if the proposed use was the same as the historical use, both being a residential use. It further contended that changes to the built form were an irrelevant consideration.

The Court found however, by reference to existing authority, that the built form associated with the use was a relevant consideration to whether there is a material increase in the intensity or scale of the use.

There was a material increase in the intensity or scale of the use of the premises

The Court examined the differences between the demolished house and the proposed house. It found that the proposed house would have an extra storey, at least one additional bedroom, greater floor area, a contemporary design rather than timber, a large number of additional rooms and facilities including a study, pool, deck, and a cellar, and a number of larger facilities including the kitchen, dining and living areas.

The Court found that the proposed house would result in an increase in the residential built form on the land. 

The Court also found that the increase in size of the proposed house would be material as it would be substantially larger in terms of bulk, height and scale and would introduce new impacts which are not "trivial or technical" (at [43]).

Such impacts included the potential to increase an unacceptable flood risk because of non-compliance with the required minimum non-habitable floor level, conflict with the Waterway corridors overlay code, and visual and character impacts because of non-compliance with the Traditional building character (design) overlay code.

For these reasons, the Court ultimately found that the construction of the proposed house constituted a material change of use.

Court declined to make an order about whether a development application for a preliminary approval was required to be made to the Council

The Applicant also sought declarations that no application for a preliminary approval was required to be made and approved by the Council for the proposed house.

The Court determined that the building work was code assessable against the Council's planning scheme but held that the type of further approval required to be obtained is a matter dependant on when such approval is sought. The Court also found that the question of who is the appropriate assessment manager was not fairly raised in the originating application.

In any event, the Court found that there would be no utility to the declaration sought given that the development application was required to be refused given the Council's concurrence agency response.

Accordingly, the Court was not satisfied that it would be appropriate to make a declaration that a preliminary approval would be required.

Costs

Despite the Applicant seeking costs on an indemnity basis, the Court found that the proceedings brought by the Applicant were vexatious for the purposes of section 60(1)(b) of the Planning and Environment Court Act 2016

The Court highlighted the Applicant's poor articulation of the preliminary approval point, particularly in circumstances where the Applicant had conceded that the development application had to be refused.

In respect of the material change of use point, the Court refused to accept the Applicant's submission that the point raised a matter of public interest in circumstances where the Applicant led no evidence and there was clear existing authority on the matter which was contrary to the Applicant's arguments. 

The Court ordered that the Applicant pay the Council's costs on a standard basis.

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