Highgate Developments Pty Ltd v Sunshine Coast Regional Council – What’s the case about?

The Planning and Environment Court delivered a decision in the matter of Highgate Developments Pty Ltd v Sunshine Coast Regional Council [2017] QPEC37 which involved a permissible change request made by Highgate Developments Pty Ltd to the Sunshine Coast Regional Council in respect of a development approval.

The development approval had been originally granted by the Court on 17 October 2008, and changes to the original approval had been previously approved on 29 April 2011 (in relation to stage 1 which had been completed) and 24 June 2016 (in relation to stage 2). The proposed changes as part of this request involved changes to the third stage of the development which had the effect of changing the layout and realigning the access road by:

  • increasing the number of lots from 22 to 34 lots, which represented an overall increase in the number of lots from 61 to 73 lots;
  • dedicating additional land to the Council as reserve;
  • realigning the internal roads; and
  • dividing stage 3 into stages 3A and 3B.

Highgate Developments also sought a declaration from the Court that the consent of the owners of the land to the proposed changes to the development approval was not required because it was not practicable to obtain the owners’ consent and the proposed changes did not materially affect the land of those owners.

The Council and the Department of Infrastructure, Local Government and Planning consented to the order sought by Highgate Developments.

The Court was satisfied with the material put forward by Highgate Developments and the submissions made by the parties, and on that basis, made the order.

Snapshot of the Court’s consideration and findings

The Court noted that it must be satisfied that the changes were permissible changes within the meaning of section 367 of the Sustainable Planning Act 2009. In particular, whether the proposed changes to the development approval would result in a substantially different development and whether the changes would cause a person to make a properly made submission objecting to the proposed changes if the circumstances allowed.

The Court was also required to exercise its discretion in excusing the requirement for Highgate Developments to provide owners’ consent as part of the application in accordance with section 371(e) of the Act.

Consent of the owners

Highgate Developments was the owner of the lot the subject of stage 3 of the development, and a company related to Highgate Developments was the owner of the lot the subject of stage 2 of the development.

Evidence of owners’ consent to the lot the subject of stage 2 was in evidence. However, stage 1 had been completed and the relevant lot had since been subdivided and 20 individual owners now owned the subdivided lots.

Highgate Developments sought an exception to provide owners’ consent under section 371(e) of the Act on the basis that:

  • the requested changes did not materially affect the land of those owners; and
  • because of the number of owners involved, it was not practicable to obtain each owner’s consent.

The Court noted that the impracticability and potential cost and delay in informing separate owners and obtaining their consent in relation to the proposed changes and how they would be affected were also relevant considerations.

Ultimately, having regard to the proposed changes and their impact on the owners of the subdivided lots in stage 1, the Court exercised its discretion to excuse Highgate Developments for not obtaining the relevant owners’ consent.

Permissible change

In assessing whether the proposed changes to the development approval were permissible changes, the Court had regard to the following matters:

  • the cumulative effect of the current proposal and previously approved changes;
  • whether the changed proposal would result in a substantially different development.

The Court accepted Highgate Developments’ submissions, and the uncontested evidence of Highgate Developments’ town planner that the proposed changes would not result in a substantially different development to the existing approval and would improve the development overall. In particular:

  • the majority of the proposed changes were internal to the development site and that the number of lots on the southern boundary would remain the same, whilst the number on the eastern and western boundaries would reduce;
  • while the number of lots adjoining the northern boundary adjoining stage 1 would increase from three to six, the views for the affected lots in stage 1 would improve with the added reserves, the connection to road A would occur on a flatter surface and it would have sufficient capacity to cater for the increased lot yield;
  • the reduced lot size would allow for greater yield in a smaller footprint, allowing greater area for reserve to be dedicated to the Council; and
  • the proposed changes would provide better engineering and environmental outcomes in relation to stage 3.

Likelihood of properly made submissions

Due to the proposed changes in increasing the number of lots adjoining the northern boundary of stage 1 from three to six, the Court had to consider whether this change would, on the balance of probabilities, give rise to a real or not-remote chance or possibility of causing a properly made submission objecting to the proposed changes.

For guidance, the Court referred to previous properly made submissions in relation to the development to identify whether the proposed changes dealt with any of the issues that were identified. The Court found that the proposed changes dealt favourably with the issues in the eight properly made submissions received during the assessment of the original development applications which generally related to setback distance and environmental concerns. These matters were addressed by reducing the number of lots on the eastern boundary and increasing the areas for vegetation and reserves in stage 3.

Upon consideration of these issues, the Court was satisfied that the proposed changes were permissible changes.

Regardless of whether a proposed change will result in an improved quality of development, when deciding if the proposed change is a permissible change under the Sustainable Planning Act 2009, the Court will still consider whether the proposed changes will result in a substantially different development and consider the likelihood of the proposed changed development causing a person to make a properly made submission if the circumstances allowed.