Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v Gold Coast City Council [2014] QPEC 63 [2015] QPELR 200

1 [2014] QPEC 63 PLANNING AND ENVIRONMENT COURT JUDGE RACKEMANN P & E No 1098 of 2014 CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS Applicant and GOLD COAST CITY COUNCIL Respondent BRISBANE 11.04 AM, WEDNESDAY, 5 NOVEMBER 2014 JUDGMENT CATCHWORDS: PLANNING AND ENVIRONMENT – Application for a change to a development approval – where GFA would markedly increase – whether permissible change COUNSEL: SOLICITORS: J Lyons for the applicant N Field for the respondent (Solicitor, Norton Rose Fulbright Australia) Herbert Smith Freehills for the applicant Norton Rose Fulbright Australia for the respondent -- 1 of 4 -- 2 JUDGMENT HIS HONOUR: This is an application for a permissible change to a development approval. The approval the subject of the application is for a place of worship at 180 Reserve Road, Upper Coomera. That approval was granted in 2012 following an application made and publicly notified in 2011. The approval provided for a building of 1235m2 gross floor area, 195 paved car parking spaces, and a range of 5 uses associated with the use of the premises as a place of worship. The proposed change would result in the building being extended by six metres on its northern end and 30 centimetres on the eastern side, to increase the gross floor area to 1633m2. Car parking spaces are to be increased to 244. There is also to be a 10 detention basin to the east, the relocation of some air conditioning plant, an alteration to the height of landscape berm, and a slight reorientation of a pathway. The change which, at first blush, appears to be most significant is the increase in the gross floor area of the building, which in percentage terms is relatively significant at 15 approximately 32 per cent. That increase is to be achieved by making the building somewhat longer and fatter. The height and general design of the building is not to be changed. As Mr Venn, the town planner retained by the applicant said in his report, the subject 20 site is well located for the purpose proposed. In particular, it is separated from potentially sensitive residential uses. The site itself is relatively large, at approximately 2.86 hectares. The land to its west is occupied by a council-owned water treatment plant. Land to the east contains a medium density townhouse development but that is separated from the subject site by Jessica Drive. To the 25 south, the site fronts Reserve Road. On the other side of that road lies vacant land which has approval for a Woolworths Shopping Centre and is the subject of a recent application for an even larger centre. To the north lies a residential development, but that is separated from the building constituting the place of worship by a significant distance and by Yaun Creek and vegetation associated with that creek line. Perhaps 30 unsurprisingly in the circumstances the development application, when publicly notified, attracted no submissions at all. Before the court can exercise the discretion to approve a change it must be satisfied that it is a permissible change within the meaning of section 367 of the Sustainable 35 Planning Act. In this case, subsections (1)(b) and (d) are not applicable. The remaining issues are whether the approval would, because of the change: (a) result in a substantially different development; or ... 40 (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. 45 It has already been noted that the development application, when made, attracted no adverse submissions. To that may be added the observation -- 2 of 4 -- 3 JUDGMENT That, in the time since that application was publicly notified, there have been no further residential uses developed in proximity to the subject development. In deciding whether the change would result in a substantially different development, it is appropriate to have regard to Statutory Guideline 06/09, which states a number 5 of circumstances in which a change “may” result in a substantially different development. Those circumstances include:  dramatically changes the built form in terms of scale, bulk and appearance 10  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. It should be borne in mind that changes which result in those things are not 15 necessarily to be regarded as resulting in a substantially different development. They are circumstances which may have that result. In this case, the change to the scale and bulk of the proposal is significant in a numerical sense, albeit that the height and general appearance of the development 20 does not markedly change. In other contexts, a change of this magnitude may be regarded as dramatic and indeed sufficiently so to, in the circumstances of a particular case, to result in a substantially different development. In this case, however, when one has regard to the context, including the size of the subject land and its separation from sensitive land uses, the impact of the increase in scale and 25 bulk is not significant. That is confirmed by the evidence before me in relation to an assessment of the visual impacts of the change. It is evident that the proposed changes are to enable the facility to accommodate a greater number of persons. The material shows that, in particular, it is proposed so 30 that quarterly “stake” conferences can be held at the facility. Those events can see up to 1000 people attending the site at any particular time. It is not intended, however, that the change lead to a continuous increase in the use of the site on a day-to-day or week-to-week basis. Indeed, the changes proposed would 35 include a new limitation, to ensure that the facility generally operated well within its maximum capacity. When the proposal was initially approved, there was no limitation on the number of persons who could be accommodated on the site at any point in time. That is now proposed to be changed so that, save and except for the four occasions on any year when these particular conferences may take place, the 40 maximum number of people to be accommodated within the facility at any time is only 500. -- 3 of 4 -- 4 JUDGMENT Accordingly, the proposed change will, save and except for those four occasions per year, be operating within current activity levels, and indeed will be limited in the way that I have indicated. The possible impacts from the infrequent use of the facility for these larger 5 conferences has been examined by experts from a range of disciplines, being town planning, environmental, water, traffic and acoustic perspectives. The material demonstrates that there would be no significant adverse impacts arising from that infrequent use. Insofar as noise, in particular, is concerned, the material shows that the greatest increase at any of the modelled receptor point would be 2 DbA, which is 10 not considered to result in a substantially different noise impact than the approved development, as is within the bounds of acceptability. In the circumstances and in the context of this development, I have reached the conclusion that the changes do not result in a substantially different development, 15 and I am also satisfied that the changes would be unlikely to cause a person to make a properly-made submission objecting to the proposed change if the circumstances allowed. I am satisfied that the change sought is within the scope of a permissable change. I am satisfied, as a matter of discretion, that it should be granted. 20 ______________________ -- 4 of 4 --