Maxen Developments Pty Ltd v Hervey Bay City Council

PLANNING AND ENVIRONMENT COURT

[2005] QPEC 091

JUDGE ROBIN QC

P & E Application No 1088 of 2005

MAXEN DEVELOPMENTS PTY LTD Applicant

and

HERVEY BAY CITY COUNCIL Respondent

BRISBANE

..DATE 09/09/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.1.52 - held a "minor change" where 50 attached dwellings were reduced to 25 detached dwellings, with height reduced from 3 to 2 storeys

HIS HONOUR: This is a developer's appeal which has been resolved between it and the Council.

Judge Wilson's order of the 8th of June 2005 dealt with the jurisdictional issues. The question remaining for the Court is whether a change to the application ought to be allowed -
whether the change in the development proposal comes within section 4.1.52, and in particular the schedule 10 definition of minor change.

Mr Daniels' affidavit read by leave includes the two submissions which were put into the Council by Ms Hand and by Mr Richards. Relevantly they were concerned with the bulk and density of the original proposal which was for 50 attached dwellings to be located on a pear- or tear-shaped area of land protruding into a lake at Toogoom. They did not elect to participate in the appeal. The court, in my opinion, ought to take their concerns into account. Whether or not they would be happy with the development proposal as it now is, the fact is that the proposed changes reduce the force of any complaints they might have had.

The 50 dwelling units are to be replaced by 25 detached dwellings, arranged in similar configurations. The proposed building height limits are reduced from three storeys to two. In addition the proposed site coverage is now less than 40 per cent.

Mr Wright's affidavit indicates that it is intended to ultimately develop this stage of a larger development utilising standard format lots in a community title scheme rather than building format lots and common property in the scheme. He expresses in paragraph 15 of his affidavit which I set out below, views with which the Court agrees:

"15. I consider that the new plan is only a minor change

to the original application on the following basis:
15.1 It changed the proposal from a 50 Unit development
to a 25 dwelling development decreasing density on the site (both community title);

15.2 The building height has been reduced;
15.3 The same community facilities that were proposed in
the original application are retained in the revised proposed;

15.4 The proposed site coverage is lessened;
15.5 Other than outlined there is no significant changes
to the original application;

15.6 The new plan is consistent with the Residential
Medium Density designation in the Transitional Planning Scheme."

Mr Connor for the Council has supplied a proposed draft order including a revised development package. It contains significant changes, of course, given the changes in the proposal which are clearly significant from some points of view, but they serve to reduce the impact of the proposal considerably and it's difficult to see them, in the circumstances, as anything other than a minor change to the proposal: it would not, if the application were remade cause anyone to make a properly made objection. Order in terms of the initialled draft which is the document Mr Connor supplied.

‑‑‑‑‑

CaseChat Overview and Summary

Maxen Developments Pty Ltd sought to appeal a decision made by the Hervey Bay City Council concerning a planning application. The initial application proposed the construction of 50 attached dwellings, but the revised proposal involved 25 detached dwellings with a reduced building height from three to two storeys. The Planning and Environment Court was tasked with determining whether the changes to the development proposal constituted a minor change under section 4.1.52 of the Integrated Planning Act 1997. The court needed to consider whether the modification to the proposal met the criteria for a minor change, particularly in relation to the reduction in density and bulk of the development.

The court examined the submissions made by the original proponents of the proposal, which were not directly involved in the appeal but had concerns regarding the initial proposal's density and bulk. These concerns were considered by the court to be relevant, as the proposed changes had effectively mitigated many of the initial objections. The court also took into account the affidavit of Mr Wright, who argued that the changes resulted in a minor alteration to the original proposal, reducing the density, building height, and site coverage, while retaining the community facilities as proposed initially.

The court agreed with Mr Wright's assessment that the proposed changes constituted a minor change under the Act. The new plan was deemed consistent with the Residential Medium Density designation in the Transitional Planning Scheme. The court concluded that the modifications significantly reduced the impact of the proposal and would not likely provoke objections if the application were to be remade. The court ordered the terms of the draft order submitted by Mr Connor, who represented the Council, which included the revised development package.

The court's decision was that the changes to the development proposal were indeed a minor change under the legislation, and the proposed development was consistent with the planning scheme. The court approved the revised development package and ordered the terms of the draft order submitted by the Council's representative.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established