PLANNING AND ENVIRONMENT COURT

CITATION: Consolidated Gold Coast Holdings Pty Ltd v Council of the

City of the Gold Coast & another [2017] QPEC 67

PARTIES: CONSOLIDATED GOLD COAST HOLDINGS PTY

LTD

(appellant)

v

COUNCIL OF THE CITY OF THE GOLD COAST

(first respondent)

and

TONY HASTINGS

(second respondent)

FILE NO/S: 4627 of 2016

PROCEEDING: Application

DELIVERED ON: 9 November 2017

DELIVERED AT: BRISBANE

HEARING DATE: 27 January 2017, 7 and 18 April 2017, 2 and 3 November

2017

JUDGE: Rackemann DCJ

ORDER: The application is granted.

CATCHWORDS: PLANNING AND ENVIRONMENT – application for

permissible change under s 369(1)(d) of Sustainable

Planning Act 2009 – development approval for Stage 2 and 3

of a larger development granted in 2008 – where Stage 1 of

development already developed – where the change involves

changing buildings in Stage 2 from attached to detached

dwellings – where change would raise the relative height of

the dwellings by moving them up a sloping site – whether the

change would result in a substantially different development

– whether the change would be likely to cause a properly

made submission objecting to the proposed change.

COUNSEL: C L Hughes QC with M A Williamson for the appellant

K W Wylie for the respondent

T Hastings on his own behalf

SOLICITORS: Clinton Mohr Lawyers for the appellant

Minter Ellison Gold Coast for the respondent

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Introduction

[1] This application is brought pursuant to s 369(1)(d) of the Sustainable Planning Act

2009 (SPA) for what is contended to be a ‘permissible change’ within the meaning of

s 367 of SPA to a development approval given by the court by an order of 14

November 2008 (the 2008 approval). The 2008 approval was for a material change

of use for 72 attached dwellings on an elevated site at 2 Ridgeland Way, Nerang,

more particularly described as Lot 444 on SP 169263 (the site). The 2008 approval

was for stages 2 and 3 of a development known as Kirribilli Heights. Stage 1 of that

development, containing 20 duplex dwellings, has been completed.

[2] With respect to the surrounds:

(a) land immediately adjoining the land to the west, south-west and north-

west (consisting of most of the original parcel of land) was previously

dedicated by the developer as parkland. It is densely vegetated and

undeveloped, and

(b) land to the south-east is developed with detached dwelling on standard

sized residential allotments.

[3] The proposed change would involve replacing 24 attached dwellings in 12 duplexes

in stage 2 with 24 detached dwellings. No change to the built form of stage 3 is

proposed. Certain consequential as well as other changes are proposed. There has

been refinement of the proposal and a deal of further supporting information provided

by the applicant since the proceeding commenced and indeed, since it first came on

for hearing.

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[4] The council did not, in its pre-request response,1 object to the proposed change

although it noted that it would be for the applicant to satisfy the court that it is a

permissible change. It provided draft conditions in the event the court were so

satisfied. Its position at the hearing is discussed later. The second respondent, who is

a concerned resident, joined the proceeding with the consent of the applicant and is

opposed to the relief sought. The Department of Local Government and Infrastructure

Planning (on behalf of all concurrence agencies) advised that it has no objection to

the proposed changes and provided an amended concurrence agency response,

reflecting the proposed changes.

The statutory test

[5] The statutory definition of a permissible change is contained in s 367 of SPA which

provides as follows:

367 What is a permissible change for a development approval

(1) A permissible change, for a development approval, is a change to the approval

that would not, because of the change—

(a) result in a substantially different development; or

(b) if the application for the approval were remade including the change—

(i) require referral to additional concurrence agencies; or

(ii) for an approval for assessable development that previously did not

require impact assessment—require impact assessment; or

(c) for an approval for assessable development that previously required impact

assessment—be likely, in the responsible entity’s opinion, to cause a

person to make a properly made submission objecting to the proposed

change, if the circumstances allowed; or

(d) cause development to which the approval relates to include any prohibited

development.

(2) For deciding whether a change is a permissible change under subsection (1)(b) or

(d), the planning instruments or law in force at the time the request for the change

was made apply.

[6] It is uncontroversial that if an application for approval were remade in this case,

inclusive of the changes, that application:

1 Exhibit 2, Volume 1, p 187.

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(a) would not require referral to additional concurrence agencies;

(b) would not alter the level of assessment – the application was, and

would remain, impact assessable, and

(c) would not include prohibited development.

[7] Accordingly, attention focused on:

(a) whether the changes, if allowed, would result in a substantially

different development, and

(b) whether the changes, if allowed, would be likely to cause a person to

make a properly made submission objecting to the proposed changes,

if the circumstances permitted.

(i) Substantially different development

[8] The first of those issues turns on matters of fact and degree, and involves an

examination of:

(a) the development approved;

(b) the nature and extent of the proposed changes, and

(c) the causative effect of the changes.

[9] It is appropriate to have regard to the guidelines made by the Chief Executive under

s 760 of SPA (Statutory Guidelines 06/09) which provide as follows:

“Although it will depend on the individual circumstances of the development,

the following list identifies changes that may result in a substantially

different development and would, therefore, not be a minor change or

permissible change under the SPA. This list is intended as a guide to assist

assessment managers and applicants to determine whether a change will

result in a substantially different development and is not intended to be

exhaustive.

A change may result in a substantially different development if the proposed

change:

involves a new use with different or additional impacts;

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results in the application applying to a new parcel of land;

dramatically changes the built form in terms of scale, bulk and

appearance;

changes the ability of the proposal to operate as intended. For

example, reducing the size of a retail complex may reduce the

capacity of the complex to service the intended catchment;

removes a component that is integral to the operation of the

development;

significantly impacts on traffic flow and the transport network, such

as increasing traffic to the site;

introduces new impacts or increases the severity of known impacts;

removes an incentive or offset component that would have balanced

the negative impact of the development;

impacts on an infrastructure provision from a location or demand.”

[10] In Heritage Properties Pty Ltd v Redland City Council, this Court said:2

“It may be noted that the list provided in the Guideline is a list of those

changes which ‘may’ result in a substantially different development. It is not

the case that a change of the kind there listed is necessarily to be judges

substantially different.

It may also be noted that the list is not intended to be exhaustive. There may

be other changes not listed in the guideline which, in a particular case, can

be judged to be more than minor, in that it involves a substantially different

development. It may also be noted that the focus of the list in the Guideline

is, in some respects, on changes that involve new, additional or increased

impacts, rather than on changes which tend to ameliorate impacts.”

(ii) Likely to provoke a submission

[11] The principles of the court’s approach to determination of the likelihood of a proposed

change provoking an adverse submission are as recently summarised by Bowskill QC

DCJ (as Her Honour then was) in Novadeck Pty Ltd v Brisbane City Council3 as

follows (footnotes omitted, emphasis in the original):

2 [2010] QPELR 510, 512. 3 [2016] QPEC 68 [18] – [23].

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[18] “In relation to the relevant principles, I adopt the following summary from

Orchard at [75]:

“(1) The words ‘because of the change’ … require a causal connection

between the permissible change and a likely submission. The

question is whether the proposed change would provoke an

adverse submission that was not provoked by the pre-existing

approval as amended from time to time.

(2) ‘Likely’ in this context conveys a notion of something substantial,

and ought to be construed as a ‘real’ or ‘not remote’ chance or

possibility regardless of whether it is less or more than 50 per cent.

In relation to causing a person to make a submission, the word is

synonymous with ‘prone’, ‘with a propensity’ or ‘liable’.

(3) Consideration must be given to the likelihood of submissions

‘objecting to the proposed change’ being made ‘on a relevant basis

at least’. The question here is whether the submission raises a new

objection about the change itself and not about the pre-existing

approval as amended from time to time.

(4) The potential submitter must be assumed to be objective and

rational, and to be acting reasonably. …”

[19] It is for the applicant to show, on the balance of probabilities, that the proposed

changes would not, because of the change, be likely to cause a person to make a

properly made, relevant submission objecting to the change.

[20] The question is to be answered from the perspective of a “hypothetical potential

objector who must be taken to be an average representative of the community…

taking a rational view of the matter”, and who is properly informed.

[21] It is appropriate to have regard to evidence before the Court which indicates that

there is someone who would wish to object. However, the mere fact that a

prospective submitter has communicated with the Council, and asserted a desire to

make a submission objecting to the proposed change, does not affect the operation

of the statutory provision.

[22] If the Court is satisfied the change proposed does not result in a substantially

different development, that finding is relevant to the consideration of whether a

person, acting reasonably, would make a submission that was relevant, rational

and objectively based.”

The changes to the 2008 Approval

[12] It has already been noted that it is proposed that Stage 2 of the development be

changed such that the 12 attached dwellings (providing 24 dwellings) be replaced

with 24 detached dwellings. This change involves splitting each of the approved

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duplex pairs into separate dwellings. This change does not alter the approved density

of dwellings.

[13] Further, the proposed change from attached to detached dwellings does not alter the

characterisation of the use under the Council’s superseded 2003 planning scheme. At

the date the development application was made to the Council, the superseded 2003

planning scheme included the following definition:4

“Attached Dwellings and Medium Density Detached Dwelling:

A dwelling attached to or touching another dwelling. This is a more specific

definition than ‘dwelling’. This term does not include an Apartment. (Please

note that a development application for ‘Attached dwellings and Medium

Density Detached dwellings’ may include detached dwellings as part of the

same development complex).”

[14] The 2008 approval was for attached dwellings only under this definition. The 48

dwellings in Stage 3 will still comprise attached dwellings. It is only the 24 dwellings

in Stage 2 which will comprise detached dwellings as part of the same

complex/community title scheme. Accordingly, the definition set out will continue to

apply to Stage 2 of the 2008 Approval, notwithstanding that it would comprise

detached dwellings.

[15] The proposal involves the development footprint moving in a southerly direction such

that it is located higher in elevation on the sloping land to the south. This change has

five consequences:

(a) first, it increases the separation distances between the proposed

dwellings and Stage 1 of the development (with consequent reduction

in any prospect of privacy or overlooking impacts – such as there may

have been);

4 Exhibit 2, Volume 1, Tab 2, Affidavit of J D Storey, para 22.

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(b) second, the separation distance provides greater opportunity for

landscaping to screen the development. The change to the approval

involves planting mature vegetation in this separation area in

accordance with the recommendations of Mr Powell;

(c) third, the change has the consequence that the setback to the southern

boundary, is reduced, but as Mr Storey explained in evidence, this is

of no consequence as the land to the south is part of the open space

previously dedicated by the developer;

(d) fourth, the pads upon which the buildings will be built, will be

relocated (and increased in elevation), with consequential changes to

works which, on the material, appears to cause no adverse impacts,

and

(e) fifth, the relative height of buildings is increased, because they are

moved somewhat upslope.

[16] The change from 12 duplexes to 24 detached dwellings requires a change to the

physical form of the proposed buildings. This involves a reduction of their bulkiness

(given that dwellings are to be detached rather than attached5) and creates space for

landscaping.6

[17] The approved plans show a total of 12 duplex buildings in Stage 2 of the development,

being a mix of 5 x A1 (2 storey) Type buildings, 1 x A3 (3 storey) Type building and

6 x B2 (3 storey) Type buildings. The proposed new architectural plans show a total

of 24 detached unit buildings, being a mix of 11 x A1+ (2 storey) Type units

5 Exhibit 2, Volume 4, Tab 24, Affidavit of R O’Brien, para 18. 6 Exhibit 2, Volume 4, Tab 22, Affidavit of J D Storey, para 10; Exhibit 2, Volume 4, Affidavit of R

O’Brien, para 15(a)(ii).

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(essentially in lieu of the Type A1), 1 x A3 (3 storey) Type unit and 12 x B2+ (3

storey) Type units (on the lower row, in lieu of the Type B2).

[18] Mr Storey7 and Mr O’Brien8 identified the specific differences between the design of

the approved typical dwelling units and the design of the proposed typical dwelling

units (other than that they are now split into separate buildings). In broad terms, the

changes to the typical dwelling designs involve:

(a) essentially the same roof profile, but finished with flat concrete roof

tiles in lieu of colorbond roof sheeting;

(b) an increase in the size of front balconies with the additional of a larger

awning to accommodate the larger balcony;

(c) the supporting structure being constructed of rendered brick in lieu of

timber, and

(d) the upper level of each dwelling finished with a composite metal

cladding instead of metal sheeting.

[19] Consequential updating and other changes are proposed to the 2008 approval,

namely:

(a) Condition 6 is proposed to be amended to require the detailed

driveway design and pavement treatments to be included in the

detailed landscape plans to be submitted to Council for operational

works approval, as opposed to being included within an amended

landscape assessment report to be approved by Council prior to a

development permit for building works being obtained. This change is

of an administrative nature only, and will not result in any physical

7 Exhibit 2, Volume 4, Tab 22. 8 Exhibit 2, Volume 4, Tab 24.

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changes to the development. The change merely brings forward the

time to obtain the Council’s approval for an amended landscaping

plan;9

(b) Condition 11 of the 2008 Approval is proposed to be amended to

reflect that the approved land use will include not just Attached

Dwellings but also Medium Density Detached Dwellings as defined

in the Council’s superseded planning scheme;

(c) Condition 24 of the 2008 Approval is proposed to be amended to

reflect that an updated rehabilitation plan for vegetation needs to be

submitted and approved by the Council to incorporate updated

stormwater management plan requirements referred to below;

(d) Condition 28 is proposed to be amended to ensure that the detailed

landscape plan to be submitted to the Council under Condition 27

provides for a high level of vegetated screening along the south-east

boundary;

(e) Condition 43 requiring stormwater tanks to be provided has been

deleted. Rainwater tanks were initially proposed as a mandatory water

saving initiative and are not otherwise required to contribute to

stormwater management or firefighting purposes. Gold Coast City

Council no longer requires the mandatory installation of rainwater

tanks. Removal of this requirement is consistent with the Council

resolution dated 12 February 2013;10

(f) Conditions 46 to 51 are proposed to be replaced with new conditions

to reflect an updated stormwater management plan. A new plan was

9 Exhibit 2, Volume 4, Tab 22, Affidavit of J D Storey, para 36. 10 Exhibit 2, Volume 4, Tab 22, Affidavit of J D Storey, para 37, Exhibit JS-22, p 50.

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required as a consequence of the change in development layout

including amended pad levels. That change does not give rise to any

new or additional stormwater impacts;

(g) Conditions 53, 55, 58 and 60 are proposed to be amended to refer to a

new geotechnical report, reflecting the proposed change in layout and

confirming appropriate levels of safety;

(h) Condition 63 is proposed to be amended to include a new requirement

directed at ensuring that car parking for bona fide visitors is

provided;11

(i) Condition 70 requires development to be carried out in accordance

with a revised approved bushfire management plan, updated to reflect

the changed layout for Stage 2. Condition 70 has been amended to

reflect that the management plan has been updated;

(j) Condition 76 has been amended to require an easement for access to

be provided, in favour of the Council, for bushfire purposes over

internal roads, fire trails and the like;

(k) Conditions 80 and 81 have been deleted. Conditions 80 and 81 require

payment of sewerage networks and water supply network

infrastructure charges for the development in accordance with

superseded Planning Scheme Policies 3A and 3B. Infrastructure

charges are now levied under the current Charges Resolution (No. 2

of 2016) by way of a separately issues Infrastructure Charges Notice.

The deletion of Conditions 80 and 81 and the amendment of Advisory

11 Exhibit 2, Volume 4, Tab 22, Affidavit of J D Storey, para 38.

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Note E is consistent with the current infrastructure charges policy, and

does not result in a change to the development.12

Assessment

(i) Substantially different development

[20] Whilst the form of housing within stage 2 will change to a detached form, the number

of dwellings will be unaltered and the use will remain within the “Attached dwellings

and Medium Density dwelling” definition. The proposal does not involve the use of

a new parcel of land, change the ability of the development to operate as intended,

alter the access arrangements or impact upon traffic flows13 or the transport network,

remove an integral component, remove an incentive or offset, or impact on the

provision of infrastructure.

[21] There is to be an increase in the overall development footprint, with site cover

increasing from 4.103% go 4.75% but, as Mr Storey deposed, the increased site cover

is partially a product of an increase in unenclosed elements, such as balconies and

terraces, which are unlikely to result in a bulky or austere appearance and should be

considered in the context of the greater opportunity for landscape planting between

buildings. Further, as Mr O’Brien deposed, the proposed new buildings are

comparatively smaller, in terms of scale and bulk in comparison to the approved

buildings due to the separation of the buildings into 24 detached buildings, planting

opportunities between them, reduced roof mass and the perception of greater open

space created by the larger balconies.

12 Court document 22, Affidavit of J D Storey, para 39. 13 It may be noted that one of the informal submissions (discussed later) referred to a lack of visitor

parking, which is to be addressed in the unrestricted access Condition 63.

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[22] As Mr Storey deposed,14 the corresponding unit types are not significantly different

in terms of height above ground.15 Whilst the new buildings are of a greater depth,

that will not compromise building setbacks or the landscape outcomes.

[23] The proposed changes initially sought to employ buildings of similar bulk and scale

but different architectural design. Since the matter first came on for hearing, the

architectural style has been changed such that it is now, as Mr O’Brien attested, closer

to the 2008 approval, albeit that different materials are used. It is also now similar in

character to the existing development in Stage 1.16 Mr O’Brien fairly acknowledged

a degree of difference from the approved buildings but not such as to result in a vastly

different style, whilst Mr Storey considered that the buildings remained, for the most

part, generally consistent with the approved proposal. Some ‘submitters’17 were

looking for an ‘eco-village style’, but the approval did not require that and the

comparison of the appearance of the built form as between the approved buildings

and the proposed change, as conducted by Mr O’Brien and Mr Storey reveals that,

acknowledging that the buildings will not be attached, the change is not dramatic and

has been somewhat ameliorated by changes made since the application was first

made.

[24] I find that the proposal does not dramatically change the built form in terms of scale,

bulk or appearance.

[25] It was contended by the second respondent, that the proposal is substantially different

in that it relies upon extensive cut and fill, whereas the approval was a series of

14 Exhibit 2, Volume 4, para 23. 15 His analysis also needs to be seen in light of the acceptance (discussed later) in relation to the

maximum height to which the approved development could be constructed using, for example, the

maximum roof pitches shown on the approved drawings. 16 Although the 2008 approval did not require the design of Stage 2 to replicate Stage 1. 17 The receipt of informed submissions is discussed later.

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duplexes which followed the natural contours of the landscape. That proposition did

not however, withstand scrutiny. The evidence of Mr Coles, a civil engineer, was that

“the land is a steep site that would have always required significant earthworks and

building platforms. The changed proposal does not alter the position in any adverse

way”.18

[26] When the matter first came on for hearing, the second respondent’s primary concern

appeared to be the potential for the proposal to have adverse impacts in relation to

geotechnical matters. Since that time however, the applicant has provided substantial

further information, to the council’s satisfaction, in that regard and the second

respondent did not further pursue that issue.

[27] For some time, subsequent to this matter first coming on for hearing but prior to the

resumed hearing, it was contended, for the council, that the proposal’s increase in

relative height (caused by the proposed buildings being moved somewhat up the

slope) would result in an increase in the severity of the visual amenity impact of the

proposal such that it constitutes a substantially different development. The second

respondent raised a visual impact point on the basis of a combination of the increase

in the height of the built form and the site topography.

[28] The visual impact issues were considered by two experts in visual assessment, Mr

Powell (who was engaged by the applicant) and Mr Chenoweth (who was engaged

by the respondent). They were able to determine that:

(i) a reinforced retaining wall for Lots 107, 109 and 111 will not

be able to be seen from stage 1 or other easterly views;

18 T1-67.

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(ii) the proposed built form on Lots 107, 109 and 111 (being lots

on the upper row) is unlikely, in and of itself, to be clearly

discernible from external viewer locations and unlikely to

contribute discernible visual impacts above and beyond those

generated by the lower row of buildings (which screen the

upper row).

(iii) for long distance (>1400m) views, the increase in height of

Stage 2 is barely discernible.

[29] Attention therefore focused upon impacts for intermediate (500m-1400m), nearby

(250m – 500m) and adjacent (<250m) views of the lower row of dwellings,

particularly proposed Lots 65, 67 and 69 and possibly 71 which are those buildings

which may appear to breach the skyline and where Mr Powell recommends additional

landscape planting.

[30] In assessing the impact of the additional height of the proposed change the visual

experts initially worked on the basis of height differentials between the 2008

approved development and the proposal, which were derived from the work of a

paralegal in the employ of the council’s solicitors. Those included height differentials

of 4.6m, 3.4m, 2.4m and 1.9m for the proposed development on Lots 65, 67, 69 and

71 respectively.19

[31] Mr Powell’s view was that the visual impacts of the proposal are similar to the

proposal from viewing locations within 1400m but that the proposal is at least slightly

better, because of the additional downhill screening vegetation opportunities

bestowed by the proposal.

19 Although the joint report of the visual amenity experts referred to a range of 1.9 to 3.4m in paragraph

53.

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[32] Mr Powell’s opinion that the impacts are similar is understandable when one has

recourse to the photomontages, which compare the “approval” to the “proposal”. Mr

Chenoweth nevertheless considered the increase in height to be noticeable and placed

some emphasis on it being up to the equivalent of an additional 1-2 storeys in height.

[33] The council’s position, in this regard, changed however, prior to the resumed hearing.

It emerged that, in determining the maximum height of development under the 2008

approval, with which to compare the changed proposal, some assumptions had been

made. In particular, the approved B2 plans (those being relevant to the buildings to

be replaced by the development on Lots 65, 67, 69 and 71) show the roof at different

pitch angles (resulting in a different overall building height, depending on which pitch

is used). It also shows the garages for duplex units on the same level, even though the

site plan for garage levels shows some variation. The paralegal adopted the lower roof

pitch (and hence lower overall building height) and also assumed that, where there

was a need to split the garage floor level, the whole unit would also be split, with 1

unit being stepped down relative to the other. The existing approval does not require

that. It relevantly requires only development generally in accordance with the

approved plans. The council correctly now accepts that the existing approval would

permit development to a greater height that than previously calculated by adopting

the greater roof pitch shown in one of the drawings on the approved plans and by

meeting the garage pad level by splitting the garage only (as is illustrated on the type

B3 approved drawing). It accepts that the accurate relative height difference between

the maximum height of the 2008 approved development and the proposal is as

follows:

(a) Lot 109 – 4.9m (Bld 21-A3);

(b) Lot 111 – 4m (Bld 21-A3);

(c) Lot 65 – 2m (Bld 22-B2);

(d) Lot 67 – 2.4m (Bld 22-B2);

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(e) Lot 69 – 0.8m (Bld 23-B2);

(f) Lot 71 – 0.9m (Bld 23-B2)

(g) Lot 73 – 0.9m (Bld 24-B2);

(h) Lot 75 – 0.9m (Bld 24-B2);

(i) Lot 77 – 1.1m (Bld 25-B2);

(j) Lot 79 – 1m (Bld 25-B2);

(k) Lot 81 – 1.2m (Bld 26-B2);

(l) Lot 83 – 1.1m (Bld 26-B2);

(m) Lot 85 – 1.4m (Bld 27-B2);

(n) Lot 87 – 1.35m (Bld 27-B2);

(o) Lot 89 – 0.4m (Bld 28-A1);

(p) Lot 91 – 0.4m (Bld 28-A1);

(q) Lot 93 – 2.4m (Bld 29-A1);

(r) Lot 95 – 2.9m (Bld 29-A1);

(s) Lot 97 – 2.8m (Bld 30-A1);

(t) Lot 99 – 2.9m (Bld 30-A1);

(u) Lot 101 – 2.6m (Bld 31-A1);

(v) Lot 103 – 2.6m (Bld 31-A1);

(w) Lot 105 – 3.7m (Bld 31-A1), and

(x) Lot 7 – 3.2m (Bld 31-A1).

[34] It will be noted that, for the critical lots (65, 67, 69 and 71), the difference is now less

than a storey. Mr Chenoweth gave evidence that he did not think the difference would

be perceived by most viewers as being a significantly increased visual intrusion.

Indeed, he went on to concede that “if it’s now reduced to the point where – for – by

most – for most viewpoints it will be hardly discernible, then I can’t really maintain

that the visual amenity impacts are significant”. That concession sits well with a

comparison of the photomontage images for the “amended approval” and “proposal”

scenarios. He also went on to acknowledge the landscaping which moving stage 2

back up the hill will facilitate.

[35] The council no longer contends that the proposal constitutes a substantially different

development. Some other asserted impacts raised by ‘submitters’ are referred to later

in the context of the likelihood of provoking an adverse submission. I am satisfied

however, that the proposal would not introduce new impacts or increase the severity

of known impacts such as to cause me to conclude that it constitutes a substantially

different development. I am satisfied that it is not.

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(ii) Likelihood to provoke objection

[36] It was contended by both the council and by the second respondent that the proposal

would likely cause a person to make a properly made submissions objecting to the

proposed change.

[37] The second respondent focused on the visual amenity impact, which has already been

discussed. He drew attention to the fact that part of the development could be

observed to break the skyline, but it appeared, in the course of submissions, that the

second respondent might not have fully understood that the question focuses on the

likelihood of an objection to the proposed change. It has already been observed that

there is no significant adverse difference, in visual impact, between the proposal and

the development which can be implemented pursuant to the 2008 approval.

[38] The second respondent also indicated an objection to the proposal on the basis that it

had not been considered by a ‘private certifier’. That is not a valid, relevant basis for

an objection for present purposes.

[39] The council’s position was said to be that the proposed changes would be likely to

cause a person to make a properly made submission objecting to the proposed change,

if the circumstances allowed, in circumstances where a number of submissions to the

original development application related to the scale of the proposed dwellings. In

this regard, it should be borne in mind that a hypothetical objector acting reasonably

and rationally would be expected to consider not just matters of the quantum of any

change, but whether the difference manifests itself in any significantly adverse way.

[40] Only one properly made submission was received in response to the original

development application. That submission raised two issues for consideration,

namely:

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(a) Whether the potential for extra traffic (in and out of Ridgeline Way

off Armstrong Way) would be unacceptable, and

(b) Whether the road marked as a fire trail along the rear of proposed Lots

89 to 111 would become a permanent access road.

[41] The proposed changes do not alter the density of the proposal and therefore make no

change to traffic volumes in or out of the development. Further, the changes do not

change the prospect of a fire trail becoming an access. In either event, there is no

genuine prospect that a fire trail to the rear of Lots 89 to 111 would become a

permanent access road for owners. On the basis of these expressed concerns, the

proposed changes do not involve any change which would be likely to provoke a

further submission from that submitter.

[42] The council’s concern, in relation to received ‘submissions’ relates more to the fact

that between November 2015 and August 2016, it received 27 “submissions” from

22 people ostensibly opposing the Applicant’s anticipated permissible change

application. Those predominantly came from residents within stage 1 of the Kirribilli

Heights development. The fact of those submissions is relevant, but not

determinative.

[43] It should be borne in mind that those ‘submitters’ did not, at the time of their

correspondence, have the benefit of all of the material that is now before the court.

So, for example, comments about the relative scale of buildings and the compatibility

of their design (matters discussed earlier) could not have taken account of the

subsequent design changes or the comparative analyses of the scale of the built form

which has now been placed before the court. Further, an examination of the

submissions reveals them to be, at least to some extent, misinformed. For example,

20

objection is taken to building heights of 3 storeys when the 2008 approval permitted

building heights of up to 3 storeys.

[44] The ‘submissions’ raised a myriad of other complaints. As was conceded on behalf

of the council, many relate to issues which are irrelevant to the subject application.

These included matters which are not relevant town planning considerations (e.g.

assertions that the target market will likely be foreign investors with consequent

asserted negative financial implications). Others raised matters which have since been

addressed (e.g. geotechnical concerns and concerns about encroachments of exclusive

use allocations into stage 1) or are the subject of conditions (such as visitor parking)

and matters which affected the original approval in any event (e.g. the need for

significant retaining walls).

[45] The ‘submissions’ also included unsubstantiated claims of impact. For example, there

were claims of adverse impacts on privacy, notwithstanding that the increased set

back of the development and opportunities for landscaping would tend to militate

against such potential. Such concerns may have been affected by the

misunderstanding that the proposal involved permitting, for the first time, 3 storey

development on the site. Some point is raised about the absence for provision for

fauna in the common areas, without substantiating the need for that particularly by

reason of the change. Mr Storey deposed20 that the changes will have no new or

additional impact with respect to the provision of, or access to, fauna corridors.

[46] It was suggested that the changes made to building setbacks will have an implication

for bushfire radiation zones. To achieve compliance with the bushfire management

plan a fire trail has been proposed immediately to the rear of Lots 89 to 111, located

20 Exhibit 2, Volume 2, Tab 13, para 67.

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predominantly within the adjoining park area. This is consistent with the intent of the

2008 Approval and assures that firefighting access and a buffer can be provided. The

Applicant addressed bushfire and the Council has conditioned the issue.

[47] The various matters raises are otherwise traversed in the affidavit of Mr Storey.21 It

is unnecessary to descend to them in greater detail. Whilst drawing various aspects of

the ‘submissions’ to the court’s attention, counsel for the council expressly made clear

that “I’m not making a positive submission that they would found properly made

submissions” and also made it clear that he was not suggesting that any had any

particular merit or basis. The hypothetical submission does not have to be one which

would ultimately be successful, but its basis (if any) may go to the likelihood of it

being made by the properly informed hypothetical submitterot acting rationally and

reasonably.

[48] It was submitted on behalf of the council, that a reasonable hypothetical potential

submitter, unassisted by legal advice, could form the same view that its paralegal had

initially formed about the extent to which the proposal would exceed the maximum

permissible height of buildings under the 2008 approval and thereby anticipate a

noticeable increase in the height of the built form, with a corresponding diminution

in amenity provoking them to make a submission. The court should however,

approach the issue on the basis of a properly informed submitter.

[49] Whilst the fact of a not insignificant number of informal submissions, together with

Mr Hasting’s position, gave me some pause for thought, I have ultimately come to

the view that assuming the hypothetical potential submitter to be acting objectively,

rationally and reasonably, and to be properly informed, the change is unlikely to cause

21 Exhibit 2, Volume 2, Tab 13; Exhibit 2, Volume 4, Tab 22.

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such a person to make a properly made submission relevantly objecting to the

proposed change, if the circumstances allowed.

Conclusion

[50] For the reasons given, I am satisfied that the changes proposed as set out in exhibit 9

(subject to the inclusion in the approved plans of reference to Mr Powell’s

recommended planting plan Figure 0-2 (24 October 2017) in exhibit 2, Volume 7,

Tab 36 at page 52) are permissible changes. The application will be granted. I will

adjourn the proceeding to enable the parties to formulate the final terms of order.