Ken Ryan and Associates Pty Ltd v Brisbane City Council

[2013] QPEC 63

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC
P & E Appeal No 4851 of 2012
KEN RYAN AND ASSOCIATES PTY LTD Appellant
and
BRISBANE CITY COUNCIL and OTHERS Respondent
BRISBANE
9.27 AM, THURSDAY, 19 SEPTEMBER 2013
JUDGMENT
CATCHWORDS
Minor change - reduction from six storeys to four in a line of apartment buildings along the Brisbane River
Sustainable Planning Act 2009 s350

HIS HONOUR: The Court makes an order in terms of the initialled draft. The only feature which has required the Court’s attention is a change to the proposed development – or series of changes which, essentially, reduces the scale of it. In particular, by reducing the height of a line of eight apartment buildings along the Brisbane River from six storeys to four. While from one point of view it may be arguable that this makes the development substantially different, the point of the changes which the Council is amenable to is to reduce impacts, and, consistently with the approach which has traditionally been taken in the Court,the test acceptable minor change under section 350 of the Sustainable Planning Act 2009 an be seen to be satisfied.

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CaseChat Overview and Summary

Ken Ryan and Associates Pty Ltd appealed against a decision made by the Brisbane City Council regarding a proposed development. The development, which included a line of eight apartment buildings along the Brisbane River, was initially proposed at a height of six storeys. However, the developer subsequently reduced the height to four storeys. The Brisbane City Council and other respondents contested the appeal. The dispute was heard in the Planning and Environment Court, with Judge Robin presiding over the appeal, numbered 4851 of 2012. The appellant, Ken Ryan and Associates Pty Ltd, sought to overturn the Council's decision, while the respondents argued that the changes were significant enough to warrant a new approval process.

The central legal issue before the court was whether the reduction in the height of the apartment buildings constituted a "minor change" under section 350 of the Sustainable Planning Act 2009. The appellant argued that the changes were substantial and required a new approval process, whereas the respondents contended that the modifications were indeed minor and did not necessitate a new approval. The court had to determine whether the changes were minor enough to be exempt from further approval under the Act. The court's decision hinged on interpreting the term "minor change" and applying it to the specific alterations proposed by the appellant.

In delivering the judgment, Judge Robin found that the changes made to the proposed development were indeed minor. The court noted that the primary objective of reducing the building height was to mitigate potential impacts, which aligned with the traditional approach taken by the court. The judge held that the reduction from six storeys to four, while noticeable, did not fundamentally alter the character or the nature of the proposed development. The court concluded that the changes satisfied the criteria for a minor change under section 350 of the Sustainable Planning Act 2009, thus upholding the Council's decision. The court ordered that the appeal be dismissed, confirming the Council's decision regarding the proposed development.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established