Coles Group Property Developments Limited v Sunshine Coast Regional Council & Ors [2023] QPEC 35

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Coles Group Property Developments Limited v Sunshine Coast Regional Council & Ors [2023] QPEC 35 PARTIES: COLES GROUP PROPERTY DEVELOPMENTS LIMITED (Appellant) v SUNSHINE COAST REGIONAL COUNCIL (Respondent) & VILLAGE FAIR INVESTMENTS PTY LTD (First Co-respondent by Election) & CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING (Second Co-respondent by Election) FILE NO/S: BD2243, 2244 and 2245 of 2021 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 1 September 2023 DELIVERED AT: Brisbane HEARING DATE: 21 August 2023, 28 August 2023 JUDGE: Kent KC DCJ ORDER: 1. All of the proposed changes to the Development Applications, set out in the order of 29 May 2023, including (b) are determined to be minor changes. 2. The parties will be heard as to any other necessary orders. CATCHWORDS: ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – POWERS WITH RESPECT TO PLANNING SCHEMES – APPEAL – where the respondent has refused three development applications -- 1 of 10 -- 2 made by the appellant – where the appellant has made minor change applications ahead of the hearing of the appeal proper – where one aspect of the application, a proposed new u turn facility, is resisted by the co-respondent on the basis it results in a substantially different development – where the respondent and the second co-respondent by election do not contest that the change is minor – whether the proposed change creates a new access point, creates new adverse impacts, involves new land or stifles third party rights – whether the change is a minor change – whether the proposed minor change would result in a substantially different development. CASES: Cleanaway Solid Waste Pty Ltd v Ipswich City Council [2020] QPEC 47 Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386 Kirra Developments Pty Ltd v Council of the City of Gold Coast [2022] QPEC 38 Novadeck Pty Ltd v Brisbane City Council [2017] QPELR 152 Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8 LEGISLATION: Integrated Planning Act 1997 Sustainable Planning Act 2009 Planning Act 2016 s 68, sch 2 Planning and Environment Court Act 2016 s 46. COUNSEL: D Gore KC with N Loos for the appellant M Batty with M Rodgers for the first Co-respondent J Ware for the respondent D Purcell for the Second Co-Respondent by Election SOLICITORS: HopgoodGanim Lawyers for the Appellant Connor O’Meara for the First Co-respondent Legal Services, Sunshine Coast Regional Council for the Respondent McInnes Wilson Lawyers for the Second Co-respondent by Election -- 2 of 10 -- 3 Introduction [1] The appellant (Coles) seeks to develop a “homemaker” style development, including a supermarket on the land the subject of the appeal at Beerwah. The development is to be staged through separate development applications. There are three appeals on foot from the Council’s refusal of the relevant development applications. Appeals 2243 and 2245 involve impact assessable development; the parties are Coles, the Council, Village Fair Investments (Village Fair) and the Chief Executive. Appeal 2244 (reconfiguring a lot) relates to code assessable development and only involves Coles and the Council. The present application is to change the development application, in a way which is argued to be a minor change, before the hearing of the appeal proper. There have previously been uncontentious minor changes in July 2022. Coles argues that this is a commonplace process of refining and improving a development proposal before the hearing of the appeal, and the present application is simply a further step in that process. [2] There are a number of changes set out in an order of the Court of 29 May 2023. The subject of the controversy in the present application is (b), a new provision for a U- turn facility at the north eastern corner of the site, largely to facilitate U-turns by heavier vehicles, in particular articulated vehicles, wishing to travel west along Roys Road which bounds the northern edge of the subject land. [3] There are a number of other minor changes proposed, including such things as changes to the extent of appropriate land dedication for the new roadworks; supermarket loading dock design and consequential changes; driveway re- arrangements; staff parking and service bays; some modification to raised traffic islands; refinements to bio-retention basins and small canopy trees as well as changes to proposed variations of the planning scheme pursuant to the preliminary approval part of the appeal. Of these matters, the only one which is contentious as to its status as a minor change is the U-turn facility mentioned. Neither the Council nor the Chief Executive contend other than all of the proposed changes are a minor change. Thus the issue in contention is Village Fair’s opposition to the characterisation of the provision for the U-turn facility as a minor change. -- 3 of 10 -- 4 Statutory Framework [4] According to the applicable statutory framework, the essential consideration is whether the proposed change does not result in substantially different development and is therefore a “minor change” (s 46(3) of the Planning and Environment Court Act (“PECA”) and the definition in schedule 2 of the Planning Act (“PA”), (a)(i)). It is common ground that the change does not: introduce prohibited development, add a referral agency, add any new referral agency assessment subject matter or invoke a process of public notification where none previously existed (thus (a)(ii) of the definition is not engaged). Thus the resistance by Village Fair is on the basis that the proposal results in a “substantially different development”. [5] As to that issue, Schedule 1 of the Development Assessment Rules promulgated under s 68 of the PA gives guidance as to factors which bear on whether a change may result in a substantially different development; Village Fair refers to three of the subrules of rule 4: (f) significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or (g) introduces new impacts or increase the severity of known impacts; or … (i) impacts on infrastructure provisions. The Schedule sets out a non-exhaustive list of factors which may, not must, be considered to result in substantially different development (Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8 at [10]). The other factors, apart from (f), (g) and (i) are not said to be relevant. “Substantially Different Development” [6] A number of authorities touch on the question of whether something is a minor change. I was referred to Cleanaway Solid Waste Pty Ltd v Ipswich City Council [2020] QPEC 47 at [21], [43]; Kirra Developments Pty Ltd v Council of the City of Gold Coast [2022] QPEC 38 at [11]; and remarks of Judge Rackemann in Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386 at 392, (albeit concerning an earlier statutory test). -- 4 of 10 -- 5 [7] Thus the categorization of the changes between the existing and new proposals as minor or otherwise is a question of fact and degree to be approached broadly and fairly, rather than pedantically. Even if a change is essential, material or important, this is not determinative; the result of the change is important. As Judge Rackemann said, the power is beneficial and the flexibility to modify proposals is an important feature of the process. [8] The appellant also points out that the minor change application now before the Court ought to be viewed in the context of both the proposal as changed by the Order of the Court on 29 July 2022 and also the development as it was originally applied for: Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [44] and [54] and Novadeck Pty Ltd v Brisbane City Council [2017] QPELR 152 at [10]-[17]. The land and associated traffic issues [9] The controversy arises out of the nature of the subject land and its access. It consists of four parcels of land in a broadly square-type arrangement, bounded generally to the west by Steve Irwin Way, to the north by Roys Road and to the east by a neighbouring parcel of land. Adjacent to the north-west corner of the land is a fairly major intersection between Steve Irwin Way and Roys Road. A complicating feature which seems to be the partial genesis of the present dispute is that parallel to, and to the east of, the portion of Steve Irwin Way which is north of the Roys Road intersection, there is another road, Moroney Place. This intersects Roys Road nearby the Steve Irwin Way/Roys Road intersection and thus creates traffic issues. It services further industrial development north of Roys Road. [10] The problem which gives rise to the present controversy arises from the fact that heavy vehicles, including articulated vehicles and some “B-Double” vehicles use Moroney Place and its intersection with Roys Road. The need for traffic exiting Moroney Place and turning right onto Roys Road, so relatively close to the intersection with Steve Irwin Way, apparently already creates some problems. [11] An earlier iteration of the proposal, in recognition of the fact that the development of the subject land would add to traffic concerns particularly along Roys Road, provided for a roadway to be created from the subject land intersecting with Roys Road, -- 5 of 10 -- 6 approximately centrally to the northern boundary of the subject land, and referred to as the central access point. That intersection was to be designed in such a fashion that it would permit U-turns (within the intersection) by vehicles, including up to articulated vehicles, travelling east on Roys Road so that they could then proceed westerly. This was perceived to be not an ideal solution from a traffic management point of view, and thus the present proposal arose. The central access point remains, but not as a U-turn facility for heavy vehicles. The new U-turn facility [12] The proposed addition of the eastern U-turn facility is to address what Mr Trevilyan, Coles’ traffic engineer, regards as being an existing safety concern, namely, the above-mentioned right turn movement of traffic out of Moroney Place. This will become more problematic over time regardless of whether or when the proposed development is constructed or completed, given increases in traffic in the area. Indeed, the conditions imposed by the Second Co-Respondent by Election (the Department) forbid right turns from Moroney Place (condition 11(a)(ii) at p 120 of Mr Holland’s affidavit in appeal 2245) and provide for U turns for a B- Double at the site access on Roys Road (condition 11 (a)(iv)). [13] The proposal which is the subject of the present dispute is for a new roadway to be constructed at the north-eastern corner of the subject land which intersects with Roys Road and leads to a large roundabout, sufficient for U-turns by large vehicles including articulated vehicles. Emblematic of the dispute in this matter is the fact that this is described by Coles as a “U-turn facility” whereas it is described by Village Fair as another access point to the land. In any case, the intention is for heavy vehicles, including those exiting Moroney Place and intending to turn right onto Roys Road – which will no longer be permitted – to proceed east along Roys Road, turn right into the U-turn facility, perform the U-turn at the new roundabout, and then turn left onto Roys Road so as to proceed in a westerly direction to the intersection with Steve Irwin Way. [14] Coles’ argument is that the U-turn facility is ameliorative as a solution to traffic movement problems identified as a potential safety concern and amounts to a minor change; further that, properly understood, the arguments raised in opposition to the minor change application really relate to the overall merits of the appeal generally -- 6 of 10 -- 7 and are properly the subject of the substantive appeal hearing rather than being a basis upon which to refuse the minor change application. Referring to the non-exhaustive list of matters in Schedule 1 of the Development Assessment Rules, Coles says that the proposed change does not involve a new use or a new parcel of land; there is no change to built form or the ability of the proposed development to operate as intended, nor does it remove an integral component or impact on traffic flow (other than perhaps ameliorating such problems). Nor is it said to introduce new or worsen existing impacts, remove incentives or offsets or impact on infrastructure. Village Fair raises a number of arguments in opposition, as follows. New Access [15] Village Fair argues that the addition of the U-turn facility would result in a substantially different development because the facility adds a new access point for the proposed development. This refers to the prospect of other future internal roadways leading off the roundabout, and traffic then simply using it for general access. This is truly a new access point – as Village Fair submits – because although some form of access is indicated in the northeast corner in exhibit 1 (the MasterPlan for the earlier first minor change), this was “indicative only” and is now “formalised” in the new version. [16] On this issue Coles’ town planning expert, Mr Schomburgk, notes that use of the facility as new access in the future – for other than park use or local utility - would require a further development application at which time the merits would be examined (and appropriate conditions attached to an approval); thus the feature does not presently represent substantially different development. There are no immediate new impacts, and if it does become a point of access in the future, the impacts will be assessed at that stage. The Department agrees it does not presently represent a new access. Operational Aspects [17] Village Fair further argues that the operational aspects of the facility give rise to “new adverse impacts” as referred to by Mr Holland, its expert traffic engineer. These include time and distance penalties for traffic wanting to travel westbound from Moroney Place (compared to the present right turn) and overall safety and efficiency -- 7 of 10 -- 8 impacts given more manoeuvres will be required. Mr Holland does agree that the present Moroney Place intersection, so close to the major Steve Irwin Way intersection, is less than ideal in any event. [18] The new facility is also argued to result in unacceptable and adverse traffic impacts when operating as a U-turn facility that will be further exacerbated when operating as a U-turn facility and access in combination (the heavy vehicles using the facility, near the boundary of the neighbouring industrial property, are estimated by Village Fair to be in the order of 30 per day). [19] Coles relies on the evidence of its traffic expert Mr Trevilyan. In cross examination, he rejected the above propositions and adhered to his evidence from his affidavits, including that the facility will operate safely and efficiently; the movements will be easier and safer than the existing right turn from Moroney Place; the acceptable degree of saturation will not be exceeded; queuing capacity and sight distances are acceptable; and any time imposition is minimal and an acceptable trade-off in the context of the (significant) existing problem. He is more critical of the existing Moroney Place situation than Mr Holland, although as noted Mr Holland concedes it is less than ideal. [20] In any event, Coles argues these operational aspects go more to the overall merits of the application than the question of whether the changes result in substantially different development. In any case, there is nothing in the nature of new or significant impacts such as to indicate substantially different development. New Land [21] It is also argued by Village Fair that the result of the proposed changes is that the development application applies to a new parcel of land (DA Rules, Schedule 1 4(b)). This is advanced by Mr Buckley, the town planning expert for Village Fair. The concern is that there may be impacts realised on land where no impacts were previously contemplated. It is exemplified, as I understand the argument, by the comparison, for example, of p3 of exhibits 1 and 2 (the two different versions of the lot diagram plan for the MasterPlan Concept for the minor changes), showing in exhibit 2 the parcel of land set aside for the new facility. Clearly enough there are now two road reservations where previously there was one. -- 8 of 10 -- 9 [22] The town planning expert for Coles, Mr Schomburgk rejects this idea, as the new facility is entirely within the land the subject of the development application – i.e. there is no “new parcel of land” - and the public has always been able to discern the nature of the application including that the relevant portion of the land, Lot 123, was relied on for access (see Mr Schomburgk’s affidavit sworn 24 July 2023 in Appeal No. 2243). Lot 123 is the north-eastern lot of the four contiguous lots comprising the subject land. The change to the area of land dedication is said by Coles to be relatively minor and not resulting in substantially different development. Third Party Rights [23] The characterisation of the proposed change as minor is also argued to stifle third party rights. Although this in terms refers to the definition of a minor change from the now repealed Integrated Planning Act, the argument is that the later legislation (the Sustainable Planning Act and now the PA) did not confine the earlier considerations under the IPA but introduced a more expansive test. Thus third party rights are material in context of this case where surrounding uses rely on the traffic and transport network; for example, a potential submitter may be concerned about the U turn facility, particularly where it may be used for access. [24] The idea of stifling third party rights is argued by Coles to be irrelevant, both because it is based on the superseded test in the repealed Integrated Planning Act; and that in any case, absent the present proposal the reasonable expectation of interested third parties would be that an industrial development on the land would involve more heavy vehicle movements than the present proposal. Conclusion [25] In my conclusion Coles has discharged its onus of establishing that the proposed contentious change is minor; it does not result in substantially different development. Approaching the matter broadly rather than pedantically (exercising a beneficial power with flexibility) it is correct to say that the proposal always contemplated access from Roys Road to the development. Moreover, the MasterPlan did include reference to access from the north eastern corner, albeit not as a U turn facility. The proposed change does not in my conclusion result in a new access point so as to amount to substantially different development. Provision for U turns by heavy -- 9 of 10 -- 10 vehicles including B Doubles was made at the central access intersection and is now proposed, in what Mr Trevilyan outlines as a preferable solution, nearby but internal to the subject land; out of potentially busy Roys Road. [26] As to operational aspects, the evidence of Mr Trevilyan establishes that the proposed change is minor in a traffic engineering sense. Again, there was always the concept of access to Roys Road and a need to allow for heavy vehicles including articulated vehicles to perform U turns to allow for the appropriate ceasing of right turns from Moroney Place. In terms of scale and degree, the new proposal is not so significantly different from the previous one as to amount to substantially different development. The proposal still has vehicular access from the land to Roys Road; it is simply that the difficulty of the right turn from Moroney Place, particularly for heavy vehicles, has a different solution. [27] As to the possibility of new land being involved, I prefer the evidence of Mr Schomburgk. The new allocation is entirely within the subject land and is not in that sense “new” or involving any significant new or different impacts. [28] I do not consider that the statutory framework under the PA includes the concepts of third party rights as under the repealed IPA. The current definition covers both a development application and a development approval and neither situation involves the old IPA test. The statutory framework is simply different; if Parliament had wished to retain the previous test it could have done so. In any case, it is not clear to me that there is any particular category of potential submitters whose rights would be stifled. Although there are neighbouring uses who would have an interest in the traffic solutions, in my view Coles is correct to style the solution proposed as ameliatory. Further an industrial development on the land would potentially involve more heavy vehicles. [29] The result is that Coles has succeeded in demonstrating the contested change to be minor, together with the other proposed changes as to which there is no contest. -- 10 of 10 --