In brief

The case of Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 15 concerned an application to the Planning and Environment Court of Queensland (Court) under section 78 of the Planning Act 2016 (Qld) (Planning Act) to change a development approval granted by the Court in 2008 (Change Application). 

The Subject Land had been subdivided into 53 residential lots. The Change Application concerned the remaining balance lot (Balance Lot), which related to Stage 3B of the development approval.

The Change Application was a revival of an earlier change application refused because the Court was not satisfied that the application was for a minor change (Prior Change Application) in the case of Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19

The main issue considered by the Court was whether the Change Application satisfied the requirements of owner's consent or was "excluded premises" under section 79(1A) of the Planning Act. 

The Court held on the basis of the principles of statutory interpretation that whether the Subject Land was "excluded premises" required a consideration of whether the proposed change would materially affect the premises (or subject land) only to the extent that the premises were so separately owned. 

As the Applicant had addressed the concerns of the Court with respect to the Prior Change Application and the Court was satisfied of compliance with section 79(1A) of the Planning Act, the Court allowed the Change Application.

Prior Change Application and Change Application

The Change Application proposed the following: 

  • The rearrangement of the boundaries and an alteration of the lot sizes within Stage 3B.
  • The introduction of sub-staging for the creation of lots under Stage 3B (one lot), Stage 3C (five lots), and Stage 3D (12 lots).
  • The dedication of three lots for road access and infrastructure to the Sunshine Coast Regional Council (Council) as part of Stage 3B.
  • Consequential changes to the development approval and approved plans. 

The concerns of the Court in respect of the Prior Change Application were the following: 

  • The lack of evidence that the proposed change did not introduce or increase the severity of geotechnical impacts. 
  • That the further sub-staging proposed would not ensure the dedication of land to the Council. 

The Court received additional material in support of the Change Application, including a geotechnical assessment and evidence of an infrastructure agreement entered into with the Council, which was not before the Court in respect of the Prior Change Application. 

Change Application does not result in "substantially different development"

The Court observed in respect of section 81 of the Planning Act that whether a change application is for a minor change requires an assessment of whether the proposed development will be substantially different to that approved, as was the test for a permissible change application under section 367(1)(a) of the repealed Sustainable Planning Act 2009 (Qld) (at [11]).

The Court was guided by Schedule 1 of the Development Assessment Rules and stated (at [12] and [15]) that the Change Application would not result in substantially different development because of the following: 

  • The development had historically been staged and a condition of the development approval required the dedication of land to the Council, where a sub-stage required road access and infrastructure services to be constructed. 
  • There were no changes to the approved road layout nor the location and size of drainage reserves.
  • The lack of significant impact on the traffic and transport network and on vegetation. 
  • The low-risk of slope instability with respect to the geotechnical concerns raised with the Prior Change Application.
  • The lack of concern regarding lot sizes being less than the 2,000m2 required under the Maroochy Plan 2000 because the minimum lot size had been reduced to 1,500m2 under the Sunshine Coast Planning Scheme 2014, which the Court was entitled to give weight to under section 81(5)(a) of the Planning Act. 

The Court was satisfied that the proposed changes would not result in substantially different development and would not cause any of the matters stated in subsection (ii) of the definition of minor change under schedule 2 of the Planning Act.

"Premises" includes the entirety of the land the subject of the development approval

Despite competing submissions of the Applicant as to what "premises" were the subject of the Change Application under section 79(1A) of the Planning Act, the Court held that premises "encompasse[d] the entirety of the land to which the development approval attache[d]..." (at [19] and [30]). 

The Court relevantly held that what constituted "premises" under section 79(1A) of the Planning Act was not changed because the Change Application was for changes only in respect of the Balance Lot, which was owned by the Applicant.

Consent of the owners of the Subject Land was not required because of impracticability 

The Applicant submitted that the Subject Land was "excluded premises" under section 79(1A)(c) and schedule 2 of the Planning Act, and therefore did not require the consent of the owners of part of the Subject Land, being the 53 lots, because the Change Application would not materially affect those already developed lots, and it was impractical to obtain the consent of each lot owner. Alternatively, the Applicant submitted that the Court may excuse the non-compliance under section 37 of the Planning and Environment Court Act 2016 (Qld)

The Court held that to satisfy the definition of "excluded premises" it is necessary to establish the impracticality of obtaining consent rather than mere inconvenience or impossibility, and that this will depend on the circumstances of each case (at [25]).

The Court held, on the basis of the principles of statutory interpretation, that whether a change application "'does not materially affect the premises' requires attention to the premises only to the extent that they are so separately owned." (at [49]).

The Court held that there was no "material affect" on each of the separately-owned 53 lots and that to obtain the consent of each owner would be impractical. Therefore, each of the 53 lots were excluded premises (at [53]). 

Although the Court was not required to consider the alternative position of the Applicant, the Court held that section 79(2) of the Planning Act was a condition precedent to its power to approve the Change Application, which would limit the application of the Court's discretion under section 37 of the Planning and Environment Court Act 2016 (Qld) (at [34]).

Conclusion

The Court held that the Change Application was for a minor change.

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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