427 Beckett Rd Pty Ltd v Brisbane City Council [2024] QPEC 4

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: 427 Beckett Rd Pty Ltd v Brisbane City Council [2024] QPEC 4 PARTIES: 427 BECKETT RD PTY LTD (ACN 628 034 772) (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 1760 of 2020 DIVISION: Planning and Environment PROCEEDING: Application in Pending Proceeding ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 9 February 2024 DELIVERED AT: Brisbane HEARING DATE: 3 October 2023 JUDGE: Williamson KC DCJ ORDER: 1. The application filed 4 August 2023 is dismissed. 2. The appeal is adjourned to 19 February 2024 for review. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for a staged mixed use development and reconfiguration of a lot – where change proposed to the development application – whether the change would result in substantially different development – whether the change is a minor change as defined in the Planning Act 2016 – whether there are discretionary reasons militating against an order permitting the appeal to be heard and determined by reference to the changed development application. LEGISLATION: Planning Act 2016 Sch 2 Planning and Environment Court Act 2016 s 46 COUNSEL: Mr E Morzone KC with Mr N Batty for the appellant Mr B Job KC with Ms K Buckley for the respondent SOLICITORS: Mills Oakley for the appellant City Legal – Brisbane City Council for the respondent -- 1 of 13 -- 2 Introduction [1] The appellant seeks an order that its appeal proceed to be heard and determined having regard to a changed development application. This is the fourth time an order of this kind has been sought during the life of the appeal. [2] Section 46(3) of the Planning and Environment Court Act 2016 precludes the court from considering a change to a development application unless the change is only a ‘minor change’. This term is defined in Schedule 2 of the Planning Act 2016. The definition requires an applicant to demonstrate, among other things, the change proposed will not result in ‘substantially different development’. [3] The application is opposed by Council for two reasons. It contends the change to the development application would result in ‘substantially different development’ for the purposes of the relevant definition. In the alternative, it is contended that discretionary reasons militate against granting the minor change order sought by the appellant in any event. [4] For the reasons that follow, I accept Council’s primary submission. I was not satisfied the change proposed is a minor change as defined in the Planning Act 2016. It was, as a consequence, unnecessary to dwell upon the discretionary considerations advanced by Council. [5] The application will be dismissed. Background [6] By way of background, this is an applicant appeal against Council’s decision to refuse an impact assessable development application for a mixed-use development on land at Beckett Road, Bridgeman Downs. The form of development refused by Council is depicted in Annexure A to these reasons. [7] The development application refused by Council seeks approval to reconfigure the land from one into five lots with associated stormwater infrastructure, private access roads and new public roads. One of the public roads facilitates a connection from Beckett Road in the west to adjoining land in the east (east-west connection road) and divides the land into two portions; a northern and southern portion. Stages 1 and 4 are located in the northern portion. Stages 2 and 3 are located in the southern portion. Assuming the stages proceed in the sequence they are numbered, the development would commence in the north-western corner and proceed in an anti- clockwise direction around the land. [8] Lot 1 is the first stage of the development. A service station (including a canopy and bowsers) and two food and drink outlets are proposed on this lot along with 42 carparks. The site plan depicts two points of access to Beckett Road (one left-in and the other left-out). An all-turns access is depicted along the southern boundary of Lot 1, providing access to the east-west connection road. Stage 1 does not include any part of the east-west connection road. This road is to be provided in two sections, forming part of Stages 2 and 3. [9] Lots 2 and 3, and part of the east-west connection road, comprise Stage 2 of the development. They are located in the south-western corner of the land, to the south -- 2 of 13 -- 3 of Stage 1. The east-west connection road adjoins the northern boundary of proposed Lots 2 and 3 and the southern boundary of Lot 1. [10] Lot 2 has frontage, but no direct access, to Beckett Road. The site plan depicts a convenience restaurant, drive-thru facility and 35 carparks on Lot 2. Access to this part of the development is obtained via the east-west connection road, which is located to the north. [11] Deep planting is proposed along the entire length of the southern boundary of Lot 2 and sleeves a vehicle queuing area for a proposed drive-thru facility. A note on the plan marked Annexure A indicates a ‘2m high Acoustic Fence’ is proposed along the southern boundary of Lot 2. The plan is not clear as to the precise location and length of the fence. [12] Lot 3 adjoins the eastern boundary of Lot 2. A childcare centre, with 110 places and an at-grade car park with 22 carparking spaces is proposed on the lot. The at-grade carpark is located between the childcare centre and the convenience restaurant on Lot 2, providing a separation or buffer between the uses. Access to the childcare centre carpark is obtained from the east-west connection road. A pedestrian pathway facilitates connectivity from the childcare centre to and from the convenience restaurant through the at-grade carpark. Deep planting is proposed along the southern boundary of Lot 3, coincident with an outdoor play area. It has a minimum width of 6.5 metres. [13] Stage 3 is located in the south-eastern corner of the land and comprises Lot 4, the eastern section of the east-west connection road and a public road intersecting with the east-west connection road. Ten residential units, an internal private road and open space are proposed on Lot 4. Deep planting is depicted along part of the southern boundary of Lot 4, in the order of 6 metres wide. [14] Lot 5 is Stage 4 of the development. It is located in the north-eastern corner of the land. A new north-south public road is located along the interface shared with Lot 1 and intersects with the east-west connection road. The development proposed for Lot 5 comprises twenty-nine (29) units, two private roads and open space. One of the private roads intersects with the east-west connection road. The open space includes a 10 metre wide landscape buffer along the northern boundary. This buffer includes an area of deep planting, about 6 metres wide. [15] Two features of the development application refused by Council are not readily apparent from Annexure A. [16] First, a review of material supporting the development application reveals significant earthworks were proposed to achieve a particular stormwater management outcome. Save for a small section of the land (in Lot 1), the stormwater management regime involved detaining water in detention tanks and then discharging that water over land to an existing drainage reserve located to the north-east. To achieve this design solution, the landform requires significant recontouring by way of cut and fill. [17] The extent of earthworks required can be seen in a layout plan included in the material before Council. A bulk earthworks plan indicates that 11,810 m3 of cut and 17,720 m3 of fill were required to achieve the required development platform levels. In addition to this, the same plan indicates that retaining walls, up to 1.5m in height, -- 3 of 13 -- 4 were required along the majority of the southern boundary, and part of the eastern boundary to retain fill material. [18] Second, a structure plan was provided to Council with the development application material. The purpose of the plan is to permit the proposed development to be examined in its broader planning context. The plan permits issues such as connectivity to and from surrounding land, and the existing road network, to be examined. The way in which the proposed development will contribute towards the facilitation of broader land use planning strategies can also be examined. [19] A review of the structure plan confirms the importance of the proposed east-west connection road. The road would provide a future connection for land to the north, east and south. That land, if developed with more intense residential development, would have access to a direct route to and from Beckett Road. It would also have convenient access to the uses proposed in Stages 2 and 3. The amended development application [20] The appellant seeks to change the development to that depicted in Annexure B to these reasons. [21] Satisfaction of the minor change definition in the Planning Act 2016 necessarily requires Annexure A to be compared with Annexure B. This was common ground. [22] To assist with the comparative exercise, the appellant’s written submissions included a table setting out changes made to the development over time, including changes approved by orders made on 16 September 2021 and 7 December 2022. I have had regard to this table, along with the various plans of development and affidavit material. This included an affidavit sworn by Mr Ovenden. He identified the differences between Annexures A and B on a lot-by-lot basis. Mr Ovenden’s evidence was complemented by the evidence of Mr Daly, Mr King and Mr Camilleri. They identified changes to the development within their respective areas of expertise, namely stormwater management, acoustic engineering and traffic engineering. [23] A cursory review of Annexures A and B reveals the proposed development has undergone significant change. Whilst not an exhaustive list, the following changes are, in my view, of particular note for this minor change application. [24] The residential development depicted in Annexure A is unrecognisable in Annexure B. This is due to a significant reduction in the number of units proposed (39 down to 12) and a corresponding reduction to that part of the development footprint allocated to residential uses. It is fair to say that this reduction was in response to a need to protect environmental values. The difficulty, however, is that these changes, taken in combination, alter the extent of the development footprint and land use mix in a material way. In Annexure A, the development footprint and mix of uses is evenly balanced between residential and non-residential uses. This is not the case for Annexure B. The development footprint depicted in Annexure B is significantly less in size and provides for predominantly commercial uses. [25] A staged approval is no longer sought for the development. This change, in combination with the change in land use mix, materially alters the development for which approval is sought. The development refused by Council comprises a balanced mix of commercial and residential uses delivered in four stages. This can be -- 4 of 13 -- 5 contrasted with the development in Annexure B. As I said above, the changed development is predominantly commercial in nature and is to be carried out in one stage. [26] In order to protect environmental values in the northern part of the land: (a) the area of Lot 5 has been increased; (b) the footprint of residential development within Lot 5 has been drastically reduced; and (c) Lot 1 has been shifted south, and extended in an easterly direction, as a consequence of the increased area of Lot 5. [27] The changes to Lot 5 have also led to consequential design changes to access and the number/layout of uses proposed on that lot. A left-out point of egress to Beckett Road has been deleted. A food and drink outlet has been deleted. The remaining uses on the lot have been re-orientated, including the service station canopy, which has reduced in size. The change made to the eastern edge of Lot 1 has also resulted in the deletion of a public road providing a connection to adjoining land to the north. [28] The change to the internal road layout is not limited to the one described above. The east-west connection road has been effectively deleted. The eastern end of the road has been replaced with ‘common property’, being a driveway for the units proposed on Lot 4. Road connections to adjoining land (north and south) have been removed. In a structure planning context, this change has the effect that future road connectivity to the north and east is no longer facilitated. This change, in my view, removes a beneficial component of the development refused by Council. [29] Changes have also been made to the earthworks design and stormwater management regime. As I have already observed, the development refused by Council involved a stormwater management system that detained water, which, in due course would be discharged to an existing drainage reserve to the north-east. This is no longer the design solution for which approval is sought. The development depicted in Annexure B will not detain stormwater. The proposal is to convey stormwater by large underground pipes along the southern boundary and discharge water across two adjoining lots. This change has resulted in amendments to the cut and fill works described earlier. An amended siteworks plan indicates the total volume of cut is now 10,415m3. Filling is in the order of 4,626 m3. A large part of the cut will occur within proposed Lots 1 and 2. [30] The development refused by Council involved significant filling in Lots 3, 4 and 5. Whilst fill is still anticipated in those lots, considerably more cut is required to achieve a drainage channel along the southern boundary of the land. A preliminary typical driveway and swale section forming part of the earthworks plans indicates there would be little by way of height differential between the pad area for Lot 4 and the land to the immediate south, being Lot 20 on SP227440. Part of the network of acoustic barriers will be located along this interface. [31] Mr King has made recommendations about the specific location and heights of acoustic barriers. A figure included in Mr King’s evidence reveals the following: (a) a 3m high acoustic barrier is proposed to the north of Lot 1; -- 5 of 13 -- 6 (b) a 2m high acoustic barrier is proposed to the edge of the drive-thru facility on Lot 1 (from the new public road up to the northern boundary of the lot); (c) a 4m high acoustic barrier is proposed towards the southern edge of Lot 2, providing a screen for the proposed drive-thru facility and food and drink outlet; (d) a 2.4m high acoustic barrier is proposed on Lot 2, screening the eastern edge of the drive-thru facility for the convenience restaurant and food and drink outlet; (e) a 3m high acoustic barrier is proposed towards the south-western corner of Lot 3; (f) an acoustic barrier is proposed along the southern boundary of Lot 3, leading to a point aligning with the rear of the dwelling units proposed on Lot 4; (g) a 2m high acoustic barrier is proposed to align with part of the childcare centre on Lot 3, near the adjoining boundary with Lot 4; and (h) a 3.3m high acoustic barrier is proposed on the eastern edge of the carpark for Lot 3, and on the boundary of Lot 4. [32] The network of acoustic barriers recommended by Mr King have the potential to introduce new impacts or, at the very least, exacerbate visual impacts for nearby residential uses. [33] The development depicted in Annexure A depicts: (1) the childcare centre located near a convenience restaurant on Lot 2, separated by a carpark; and (2) the childcare centre separated from residential uses by a road. The siting of the commercial uses, relative to residential uses, has changed in Annexure B. The childcare centre adjoins an area of the land to be developed with residential uses. This has the consequence that a non-residential use is to be located next to, and share an interface with, a residential use. The interface, having regard to Mr King’s evidence, includes an acoustic barrier ranging in height from 3.3 to 3.6m. This is a material change in my view. [34] Changes are also proposed to the childcare centre. They involve reducing the number of places offered from 110 to 100, altering the building design and relocating a redesigned carpark from the western side to the front of the centre. A landscaped setback area, including a 6.5m wide deep planting area, is also to be removed and replaced by a stormwater pipe and swale along the southern boundary. [35] Finally, changes are proposed to the built form for residential dwellings. This change is in addition to the material reduction in the number of those dwellings from 39 to 12. Do the changes result in substantially different development? [36] Section 46(3) of the Planning and Environment Court Act 2016 precludes the court from considering a change to a development application unless the change is only a ‘minor change’. This term is defined by reference to Schedule 2 of the Planning Act 2016. It is uncontroversial the only part of the definition in issue here is subclause (a)(i), applying to development applications. This aspect of the definition requires the appellant to demonstrate the change to its development application will not result -- 6 of 13 -- 7 in ‘substantially different development’. This is a test that turns on matters of impression, fact and degree. It is to be considered broadly and fairly. Qualitative and quantitative considerations are relevant. The Court’s examination of the test in any given case may be assisted by reference to Schedule 1 of the Development Assessment Rules. [37] As a starting point, it is fair to say that the appellant’s minor change application is one facing considerable difficulty. The extent of change between Annexure A and B is, as a matter of impression, significant. The changes involve the deletion of staging; material changes to the land use mix; the deletion of a connection road intended to facilitate connectivity; changes to access; and material changes to the development platform levels. All of these matters, taken in combination, suggest the application to change requires careful and close examination. Particular attention is required, in my view, to be given to resultant changes in visual and traffic impacts. [38] The evidence before the Court with respect to visual and traffic impacts was inadequate. [39] Changes to the proposed development introduced, or exacerbated, the potential for adverse visual amenity impacts on adjoining residential uses. This impact was not considered in the appellant’s affidavit material. [40] The changes to the development application include the introduction of a network of acoustic barriers. The barriers range in height from 2m to 4m. The tallest barrier is located along the southern boundary of Lots 2 and 3 and is intended to provide a screen for non-residential uses for the benefit of adjoining residential uses. One such use is to be found on Lot 20 on SP227440 to the south. Lot 20 does not form part of the development application. It is developed with a detached dwelling. [41] Given the height of the acoustic barriers and their proximity to land developed with residential uses, it was necessary to examine whether the change would give rise to a new impact or exacerbate a known amenity impact. The evidence before me does not permit an examination of this impact. [42] To examine traffic impacts, the appellant relied upon the evidence of Mr Camilleri. A close examination of this evidence suggests no consideration was given to: (1) the traffic impact, if any, arising by reason of the deletion of staging; and (2) the impact, if any, by reason of the deletion of future road connections to adjoining land. [43] At its highest, Mr Camilleri’s evidence is an assertion. He asserted that the changes to the development do not result in any meaningful impacts to traffic flow or the transport network. This assertion was not supported by traffic engineering analysis. For example, there is no reference made to traffic modelling or survey data to establish that a change to the internal access road and access arrangements to Beckett Road would not give rise to any new impact or exacerbate a known impact. [44] A further change calling for consideration from a traffic engineering perspective involves the removal of pedestrian connectivity between the childcare centre and the convenience restaurant on Lot 2. In the development refused by Council, these uses are co-located. The design includes a pedestrian path from the childcare centre through a carpark connecting it to the convenience restaurant. This connection, and deletion of it in the amended proposal, is not mentioned in any of the affidavit -- 7 of 13 -- 8 material. Nor is there any mention of what impact, if any, this loss of connectivity and co-location would have in terms of multi-purpose vehicle trips. [45] The final part of the evidence which I found underwhelming is that relating to structure planning. There is no analysis of what, if any, impact arises by reason of the changes to the internal road system, which is replaced, in part, with internal private roads and easements. The loss of connection to future development to the north and east was not traversed. [46] For the reasons given above, I was not satisfied the changes proposed would result in anything other than substantially different development. [47] It was contended on behalf of the appellant that the changes proposed to the development application (Annexure B) would not result in substantially different development. In support of this, Mr Morzone KC and Mr Batty submitted: “In overall terms, the proposed mix of uses remains the same. The proposed development still seeks an approval for a service station, food and drink outlet, childcare centre and multiple dwellings albeit at a lesser scale with reduced impacts. The Proposed Change primarily involves a reduction in the scale of the proposed development in response to matters raised by the Respondent’s experts in the Third Tranche of JERs.” [48] This submission can be accepted in part, namely: (1) the development depicted in Annexure B ‘remains’ a mixed use development comprising a service station, food and drink outlet, childcare centre and multiple dwellings; (2) the changed form of development is a lesser scale than that depicted in Annexure A; and (3) the reduction in development scale is intended to be responsive to reasons for refusal founded in, inter alia, ecological and stormwater management considerations – these issues were traversed in the third tranche of joint expert reports. [49] I accept these matters are supportive of the application. They however fall short of demonstrating that the changes proposed would not result in substantially different development. The submission, in my view, glosses over the true extent of the changes proposed and the need to carefully examine their resulting impacts, both individually and cumulatively. The evidence relied upon for this examination was inadequate. [50] The appellant’s case was also not assisted by the heavy reliance placed on earlier orders of the court, namely orders that permit the development application to proceed to hearing inclusive of most, but not all, of the changes in the application before me. One such order was made without opposition on 7 December 2022. The form of development the subject of that order is depicted in Annexure C. [51] The order made on 7 December 2022 is relevant to this application. I have had regard to it and considered the impact it has on the outcome of this application. That impact, in my view, does not rise to a point that it is determinative of this application. This is so for two reasons: (1) the order was not opposed; and more importantly; (2) the application now before the Court seeks additional changes to the development that were not before the court on 7 December 2022. [52] The changes that were not before the court on 7 December 2022 can be identified as follows: -- 8 of 13 -- 9 (a) the number of fuel bowsers has been reduced from 8 to 6; (b) the width of the northern ecological corridor has been increased by 4m; (c) the internal layout has been further reconfigured; (d) the number of building pads to the north of the internal access road have been reduced to 1, and relocated; (e) staging has been removed; and (f) the stormwater solution remains the same save the pipe diameter has been increased to 1200 millimetres with a slotted channel still proposed above the stormwater pipe. [53] While (a) to (d) and (f) above may not be material in and of themselves, the deletion of staging is, in my view, a matter of import when taken in combination with all of the changes proposed. As I have already observed, the impact of that change in traffic engineering terms called for close and careful consideration. The evidence does not permit such an exercise. [54] The critical question is whether the form of development now before the court satisfies the definition of minor change. This is not answered by the order of 7 December 2022. It is to be answered having regard to the evidence before the court. That evidence is inadequate. It does not satisfy me that the change proposed to the development application is a minor change as defined in the Planning Act 2016. Discretionary considerations militating against the relief sought [55] Council contended, in the alternative, there are strong discretionary reasons militating against making the order sought by the appellant. Three particular matters were relied upon by Council, namely it asserted that: (a) the appellant unreasonably delayed the making of this application, and has not properly discharged its responsibilities in the appeal; (b) the appellant failed to properly identify the true scope of changes when previous minor change orders were obtained; and (c) the refused plans were publicly notified in April 2020 and there is considerable interest in, and opposition to, the proposed development. [56] I am satisfied a review of the evidence going to discretionary considerations establishes there is considerable force in this aspect of Council’s submissions. This is particularly in so far as it is contended the appellant delayed making this minor change application and has not properly discharged its responsibilities in the proceeding. It is, however, unnecessary to determine whether discretionary considerations alone call for the application to be dismissed. This follows from the findings made in relation to the substantially different development issue set out above. Disposition of the application [57] The application filed 4 August 2023 is dismissed. -- 9 of 13 -- 10 [58] The appeal will be listed for review on 19 February 2024. At this review, I intend to make directions that prepare and list the appeal for hearing. -- 10 of 13 -- -- 11 of 13 -- -- 12 of 13 -- -- 13 of 13 --