In brief – Minor Change Application

The case of 11 Ludlow Pty Ltd v Brisbane City Council [2020] QPEC 55 (Ludlow Decision) concerned an application in pending proceeding by 11 Ludlow Pty Ltd (Appellant) to the Planning and Environment Court of Queensland seeking that the proposed changes to a development application for a material change of use and building work for a Food and Drink Outlet, Office and Shop on land situated at 2 Oxford Street, Bulimba (Development Application) are minor changes. 

The Court noted that the Court may consider a change only where the change is a "minor change", which is defined in Schedule 2 of the Planning Act 2016 (Planning Act) and relevantly includes a change that does not result in a "substantially different development".

Proposed changes to the Development Application include a basement carpark and a revised appearance of the building

The Development Application, a four-storey mixed use commercial building, was a code assessable development that was situated on land which adjoined the Bulimba Ferry Terminal, which is a State Heritage Place on the Queensland Heritage Register. The Court considered the following proposed changes to the development to be contentious: 

  • Basement carpark – Addition of a basement with 19 car-parking spaces beneath the building and a vehicle cross-over for vehicular access.

  • Architectural design – A starkly different architectural design which was changed from a neutral curved façade to an angular amalgam of arched terraces above ground vegetation with a large circular window above the proposed cross-over. 

Court determines that the proposed changes were material and important and therefore resulted in a substantially different development

The Appellant relied upon the expert evidence of a traffic engineer in relation to the proposed Basement Carpark change, who stated that the Basement Carpark would not generate high volumes of traffic. The Appellant also relied on expert evidence in relation to the proposed Architectural Design change. The town planner described the change as "having a different architectural expression" and the architect described the change as "somewhat visually heavier than the previous proposals" (at [11]). 

The Court considered the proposed changes and the location of the Development Application adjoining the Bulimba Ferry Terminal and noted the following:

  • Basement carpark – The proposed change is a material and important change that results in a substantially different development as there was no on-site parking or vehicular access previously in the Development Application and the proposed change creates a whole new level and new impacts. 

  • Architectural design – Although a design change may not assume much importance, the location of the adjoining a State Heritage Place and the radically different architectural treatment resulted in a material or important change that results in a substantially different development. 

Conclusion

The Court concluded that the proposed changes resulted in a substantially different development and where therefore not minor changes in accordance with the definition of "minor change" under the Planning Act. The Court dismissed the application in pending proceeding. 

In brief – Originating Application 

The connected case of Glamston Pty Ltd v 11 Ludlow Pty Ltd & Anor [2020] QPEC 54 concerned an originating application by Glamston Pty Ltd (Applicant) to the Planning and Environment Court of Queensland for relief under section 11 of the Planning and Environment Court Act 2016 (PECA) that, relevantly, the proposed changes sought by the Appellant in the Ludlow Decision were not minor changes (Originating Application). The Appellant sought an order that the Originating Application be summarily dismissed. 

The Court relevantly noted that the Applicant owns land neighbouring the land the subject of the Development Application referred to in the Ludlow Decision. The Court also noted that as the Development Application was code assessable, the Applicant did not have the opportunity to make a submission in respect of the Development Application and therefore did not have any appeal rights in relation to the Development Application. 

Court determined that the Originating Application was attempting to give the Applicant a right to be heard where the legislature did not contemplate that right and dismissed the Originating Application

The general declaratory jurisdiction of the Court is relevantly stated in section 11 of the PECA as follows:

"11 General declaratory jurisdiction

(1) Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—

(a) a matter done, to be done or that should have been done for this Act or the Planning Act;

(4) The P&E Court may also make an order about any declaration it makes."

The Court referred to the case of Ferreyra v Brisbane City Council [2016] QPELR 334; [2016] QPEC 10, which stated that the jurisdiction of the Court in proceedings that seek declaratory relief are analogous to judicial review proceedings (see [11]). Upon consideration of the Originating Application, the Court noted that the Originating Application did not demonstrate any relief analogous to a judicial review proceeding.

The Court determined that there were strong discretionary reasons for dismissing the Originating Application as "…the originating application is but a thinly veiled attempt to effect a joinder in circumstances where the legislature does not give the applicant a right to be heard in an interlocutory application which involves factual determinations within the jurisdiction of the court" (at [14]). 

The Court also noted that third party submissions are not contemplated by the legislature in relation to proposed changes to a code assessable development application and that the Originating Application sought to determine the same question as the question the subject of the Ludlow Decision. 

Conclusion

The Court therefore held that the Originating Application be dismissed, and did not make orders that the proposed changes sought by the Appellant in the Ludlow Decision were not minor changes. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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