Planning and Environment Court finds that modifying a property boundary alignment constitutes a minor change

In brief

The case of Goldicott House Pty Ltd v Brisbane City Council & Ors (No.2) [2019] QPEC 47 concerned an interlocutory application to the Planning and Environment Court (Court) in respect of an appeal against the decision of the Brisbane City Council (Council) to refuse a development application for building work to facilitate the demolition of a State and local heritage place known as "Goldicott House", and a development permit to reconfigure a lot and for a material change of use. The interlocutory application was brought by the registered landowner (Applicant) seeking orders permitting the appeal to be heard and determined on the basis of a changed application.  

The main issue in dispute was whether the changed application constituted a "minor change" for the purposes of the Planning and Environment Court Act 2016 (PECA).

The Court held that the changed application was a minor change under the PECA as the proposed change did not result in a substantially different development. The Court therefore approved the application and ordered that the appeal be heard and determined on the basis of the changed application.

We reported on the previous decision of Goldicott House Pty Ltd v Brisbane City Council & Ors [2019] QPEC 25 in our September 2019 edition of Legal Knowledge Matters: Planning and Environment Court allows application to broaden the issues in dispute to consider new and significant information in a joint expert report.

Changed application

The Applicant sought to make a minor change to its development application at the end of the hearing of the evidence relating to the reconfiguration of a lot aspect of the development application. The proposed change relevantly sought to modify the boundary line between two proposed lots, known as "lot 21" and "lot 22" with the effect of affording a greater frontage to lot 22 and a corresponding reduction in the frontage for lot 21.

The proposed change arose from a concern raised during the course of the appeal in relation to whether the reconfiguration to create lot 22 would compromise the safe and efficient operation of the driveway that provides access to the land the subject of the appeal.

Section 46(3) of the PECA provides that the Planning and Environment Court cannot consider a change to a development application unless the change is only a minor change to the application. Schedule 2 of the Planning Act 2016 (PA) relevantly defines a minor change for a development application as "a change that does not result in substantially different development…". 

The Court noted that the definition of a "minor change" also required attention to whether it would cause one of a number of things set out in paragraph (ii) of the definition under the PA, but found that the change would not be caught by reference to any of the matters in paragraph (ii). The Court also considered the Development Assessment Rules (DA Rules) made under section 68(1) of the PA and found that the proposed change did not trigger any of the circumstances set out under section 4 of Schedule 1 of the DA Rules, which would consider the change to result in a substantially different development.

In determining whether the changed application constituted a "minor change" under the PECA, the Court considered the evidence of the traffic engineers and town planners called upon by the parties. 

The traffic engineers gave evidence to the effect that moving the proposed boundary would afford lot 22 a better opportunity to provide appropriate access for use for community facilities. However, the traffic engineers also asserted that the lesser frontage left for lot 21 would still be wide enough to provide an access for that lot if its uses were to be as a house, as the Applicant proposed, but not if it were to be used for some type of community facility. 

In order to quell any concerns that the proposal might limit the future use of lot 21, the Applicant volunteered a condition that the proposed lot 22 be required to provide any easement that is reasonably necessary for vehicle and pedestrian access in favour of lot 21.
The town planner called by the Applicant additionally acknowledged that the change related only to one component of the application and expressed the view that the change was of no substantial planning significance. The Court considered the evidence of the traffic engineers and of the town planner called by the Applicant and found that the change was of no substantial planning significance. 

The Council submitted that the changed application might in some way prejudice the use of lot 21 for community facilities in terms of whether onsite car parking for the community facilities would be appropriate having regard to the heritage considerations.
The Court held that the imposition of a condition as volunteered by the Applicant would address any concerns that the change to the boundary might result in some limitation on the utility of the use of lot 21 for community facilities. 

The Court also noted that there was a broader point made in the course of the application as to whether the creation of the larger lot would impact upon the flexibility to use lot 21 for community facilities, but held that such concerns arose out of the proposed subdivision rather than the change to the boundary and was therefore not relevant. 

The Court found that the magnitude of the changed application, being the change to the boundary line between the proposed lots, was relatively small, and that the changed application was made to address an issue that was raised in the appeal to reduce impacts rather than to exacerbate impacts or create new impacts. The Court held that the changed application did not affect the way in which the development was intended to operate and was therefore a minor change.

The Court exercised its discretion and ordered that the appeal proceed on the basis of the changed application.