Dixing International Pty Ltd v Sunshine Coast Regional Council [2012] QPEC 64 (2013) QPELR 39

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Dixing International Pty Ltd v Sunshine Coast Regional Council [2012] QPEC 64 PARTIES: Dixing International Pty Ltd (ACN 093 817 899) (Applicant) -v- Sunshine Coast Regional Council (Respondent) FILE NO/S: 2098/09 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 24 May 2012 DELIVERED AT: Brisbane HEARING DATE: 14 May 2012 JUDGE: Durward SC DCJ ORDER: 1. The changes to the proposed development are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009. 2. I will hear from the parties as to further orders disposing of the appeal as may be necessary. LEGISLATION: Integrated Planning Act 1996 (Qld) s 4.1.52(2)(b); Sustainable Planning Act 2009 (Qld) ss 350, 759 and 821. CASES: Heritage Properties Pty Ltd & Anor v Redland City Council & Ors [2010] QPEC 19; Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474; Trans Equator Pty Ltd v Brisbane City Council [2007] QPEC 486; Macquarie Leisure Operations Ltd v Gold Coast City Council [2007] QPELR 418; Lormax Pty Ltd v Cairns Regional Council & Ors [2012] QPEC 3; Malouf & Anor v Gold Coast City Council [2012] QPEC 36; Minamark Pty Ltd v Gold Coast City Council & Anor [2010] QPEC 146; Indigo (Palm Beach) Landowner Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 27; Oz Pacific Engineers Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 117; Dempsey v Brisbane City Council & Ors [2012] QPEC 2. -- 1 of 9 -- 2 CATCHWORDS: ENVIRONMENT & PLANNING – DEVELOPMENT APPLICATION – DEVELOPMENT PERMIT FOR A MATERIAL CHANGE OF USE – Whether proposal constitutes a “minor change” – Whether changes result in a substantially different development – Where changes contemplated are significant. COUNSEL: Mr Connor for the Applicant J Lyons for the Respondent SOLICITORS: Connor O'Meara Solicitors for the Applicant Sunshine Coast Regional Council Legal Services for the Respondent [2] The applicant is an appellant in this Court against the decision of the respondent to refuse an application for a Development Permit for a Material Change of Use of Premises for a motel, multiple dwelling units, restaurant and shops in respect of land at 46 Brisbane Road (at the intersection with Tarcoola Street), Mooloolaba (“the land”). The grounds of refusal [3] The grounds of refusal were that the proposed development did not set aside land required for a future widening and upgrade of Brisbane Road, which was contemplated in the Mooloolaba Integrated Transport Plan; and that the proposed development was inconsistent with the Maroochy Plan 2000. [4] Nevertheless, the parties after negotiation over time have reached an outcome where the respondent supports the approval of a changed form of the development which makes allowance for the necessary land required for a future widening and upgrade of Brisbane Road. The application [5] The applicant has sought an exercise of the discretion of the Court to approve the changes to the Development Application as "minor changes" pursuant to s 4.1.52(2)(b) of the Integrated Planning Act 1997 ("IPA") and s 350 of the Sustainable Planning Act 2009 ("SPA"). [6] The proposed changes are quite significant and that is the reason for my having reserved my judgment on the application. The land is currently occupied by the Mooloolaba Motel which is to be demolished to make way for the proposed development; the north and west boundary adjoins land owned by the Department of Housing, which contains multiple dwelling units; the land is situated in the vicinity of retail, commercial and office uses including commercial and office uses on the opposite side of Brisbane Road, a McDonalds' Restaurant diagonally opposite on the corner of Brisbane Road and Tarcoola Avenue and a convenience shopping centre on the opposite side of Tarcoola Avenue. -- 2 of 9 -- 3 [7] The Development Application for the mixed use development was to be contained within an eight storey building, 25 metres high and set on a podium level which occupied a larger footprint on the land. The changes to the proposed development [8] The change to the Development Application provides for the same mixed use development, although in an eight storey building of the same height but without the podium level. It now has a set back from Brisbane Road (to satisfy the reasons for refusal), a change to the gross floor area of the building, a change to the relative ratio of non-residential to residential uses, a change to the ratio of multiple dwellings and motel units and an alteration to the architectural style, particularly in the context of this application, to the external appearance of the building. [9] The changes to the development application are probably best described in a Table which I have extracted from the written submissions of the applicant. Development Item Original Proposal Changed Proposal Number of storeys and height 8 storeys (25 metres) 8 Storeys (25 metres) Number of residential levels 7 6 Number of levels of shops, restaurants and ancillary motel facilities 1 2 Number of motel units 36 59 Number of multiple dwelling units (and type) 21 3 x 3 bedrooms 18 x 2 bedroom 13 9 x 3 bedroom 3 x 2 bedroom 1 x 4 bedroom Total number of units 57 72 Dwelling unit factor (equivalent to 2 bedroom units) 39.75 45 GFA 6361m2 10061m2 Carparks 108 127 [10] Images of the floor plan and the external appearance of the proposed development in original and amended forms are attached at ‘Annexure A’. -- 3 of 9 -- 4 ‘Minor change’ [11] The appeal was lodged under IPA and accordingly the Court must not consider a change to the application unless the change is only a "minor change". The reference to “minor change” in s 4.1.52(2)(b) of IPA is, by virtue by s 821 of SPA, a reference to a minor change as defined under SPA. [12] Pursuant to s 350 of SPA a minor change is one that: (a) does not result in a substantially different development; (b) does not require the application to be referred to any additional referral agencies; (c) does not change the type of development approval sought; (d) does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment. [13] The original Development Application was subject to impact assessment. No additional referral agencies are triggered by the changes to the proposed development. The type of Development Approval sought has not changed. Hence the issue is whether the changes result in a “substantially different development”. [14] Part 6 of the SPA was referred to in the explanatory notes to the Bill as setting out a simpler, clearer and more flexible process for changing development applications than the process in the IPA. I have no doubt that is correct. The construction of s 350 of SPA is assisted by a statutory guideline (authorised by s 759 SPA) issued by the relevant Minister. The Guideline refers to the nature of proposed changes in a list which is directed to assisting the assessment manager (in this case the Court) as to whether a change would result in a substantially different development. It is an inclusive rather than an exclusive list. So far as is relevant in this case, a change may result in a substantially different development if the proposed change: Dramatically changes the built form in terms of scale, bulk and appearance; Significantly impacts on traffic flow and the transport network, such as increasing traffic to the site. [15] Those two items in the Guidelines are really the only items that are relevant in this case. [16] In Heritage Properties Pty Ltd & Anor v Redland City Council & Ors1 the Court noted that “the list provided in the Guidelines 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 judged to be substantially different. [17] The Court also observed that “… the focus of the list in the Guideline is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts.” 1 [2010] QPEC 19. -- 4 of 9 -- 5 [18] I have already referred to Maroochy Plan 2000. The land is contained within the Brisbane Road North precinct (Town Centre Frame) of Planning Area 4 – Mooloolaba, where the intent is stated as follows: “This precinct is part of the principal entrance into Mooloolaba. The intent of the precinct is to provide primarily for medium-high density residential development and allow for some limited business/commercial uses. This will involve providing for the ongoing development of the precinct as a medium to high density residential area by allowing for the development of professional offices, and other low intensity commercial activities, at ground and first storey levels with adequate vehicle access and on-site parking provisions.” [19] Hence, it is clear that medium-high density residential development is both intended and encouraged together with low-intensity commercial activities at the Ground and First storey levels. Discussion [20] Town Planner Mr Pinese in his affidavit filed in support of the application provided a general comparison between the original proposal and the changed proposal. He refers to an internal change to the extent of residential levels (a reduction from 7 to 6 levels) and the extent of shops and restaurant (increasing from 1 level to 2 levels), and to the other changes to motel units and multiple dwelling units. The increase in the total floor area he deposes has resulted from “a more efficient design that seeks to better utilise the space available on the site.” The GFA change results from increases in the floor area of Levels 2 to 7 and the decrease in the area at the Podium level. [21] I agree with Mr Pinese‟s view that the changes to the architectural design of the building could be regarded as being significant in their scale, but that the changes provide an improved architectural outcome, even though the external aspect of the building has altered quite markedly. [22] I agree that the changes reflect a response to the reasons for refusal in the sense that provision has now been made for the possible widening and upgrade of Brisbane Road. [23] Mr Pinese deposed that the changes attempt to address the fluctuating market needs and the effects of economic change. There is an additional feature added to the building in the form of a LED screen which is visible by users of Brisbane Road who are entering the Mooloolaba business district. There is no change to the access arrangements to the development and the car park spaces have been increased. [24] Overshadowing of neighbouring properties is an issue that has been addressed in the changed development with a slight increase in the overshadowing of the convenience centre, and the Department of Housing site. There is a slight increase in the overshadowing of the commercial property and the office property. However, the impact of overshadowing are, in the context of an immediate locality that is predominantly commercial, are minimal and to an extent to be expected in a medium to high-rise precinct. -- 5 of 9 -- 6 [25] There were, as I have indicated, two submitters to the original development application. Both submissions appear to be addressed by the change to the development proposal. In the first instance, the submission by Queensland Transport referred solely to the need for a setback on Brisbane Road; and the submission by the neighbouring Department of Housing refers principally to construction aspects of the proposed development. There was no change to those but they are again said to be able to be addressed by the detailed design phase of the proposed development. [26] Traffic engineer Mr Penman expressed the view that the changes to the proposed development were not expected to adversely impact on traffic or the efficiency of the Brisbane Road-Tarcoola Ave intersection, or in or along adjacent or surrounding local roads. [27] The changed development meets the requirements of the maximum acceptable height (8 storeys/no more than 30m) and the permitted dwelling unit factor (60.96 equivalent two bedroom units are permitted) in Table 4.2 in Maroochy Plan 2000. The site cover requirements of Table 4.2 are not met but that was the case in any event with the original proposal. [28] Whilst the issue of minor change involves consideration of the broader considerations contained in s 350 of SPA, even under the IPA provision the relevant case authorities applied a fairly broad and generous construction of what constitutes a “minor change”: see the observations of Judge Wilson SC (as he then was) in Parcel One Pty Ltd v Ipswich City Council;2 Trans Equator Pty Ltd v Brisbane City Council3 and Macquarie Leisure Operations Ltd v Gold Coast City Council.4 These authorities continue to be relevant particularly in respect of considerations of scale and degree in the proposed changes. [29] The essence of the proposed development as it has been changed is still the same as originally proposed, despite what at first blush appear to be multiple changes of a prima facie large scale. [30] I have considered a number of more recent authorities that deal with s 350 of SPA. I have in an holistic context made an assessment in this application which reflects the approach taken in those authorities: see Lormax Pty Ltd v Cairns Regional Council & Ors;5 Malouf & Anor v Gold Coast City Council;6 Minamark Pty Ltd v Gold Coast City Council & Anor;7 Indigo (Palm Beach) Landowner Pty Ltd v Gold Coast City Council & Ors8 and Oz Pacific Engineers Pty Ltd v Scenic Rim Regional Council & Ors;9 and Dempsey v Brisbane City Council & Ors.10 [31] Whilst the changes might be considered “significant” by reference to a dictionary definition of that expression, they do not in my view amount to a substantially different development for the purpose of the statutory definition of “minor change”. 2 [2007] QPELR 474 at 476. 3 [2007] QPEC 486 at [2]. 4 [2007] QPELR 418 at [29]-[31]. 5 [2012] QPEC 3 at [3]. 6 [2012] QPEC 36. 7 [2010] QPEC 146. 8 [2011] QPEC 27. 9 [2010] QPEC 117. 10 [2012] QPEC 2. -- 6 of 9 -- 7 [32] I am satisfied that the proposed changes to the development application in the strict legal sense are not “different in essence or essentially or materially or importantly different”, in an holistic context. There is no evidence of any community concern about the development and that probably reflects the fact that a development of this kind either in its original form or as changed is expected to be constructed in this precinct at the gateway entrance to Mooloolaba. Of course, it is no longer necessary to consider whether there may be new submitters who might now, with the changes to the proposed development wish to express an interest in the development proposal. I am also conscious of the fact that the proposed changes are the consequence of a negotiated resolution of the reasons for refusal by the respondent Council, that the Council supports the development application as changed and supports this application for an exercise of discretion by the Court with respect to the issue of “minor change”. Conclusion [33] In those circumstances, it seems that it is open to me to find that the changes to the proposed development are, in accordance with the legislation, “minor changes”. Accordingly, upon an exercise of my discretion, I determine that the changes may properly be considered as “minor changes” on the application of the statutory test. Orders 1. The changes to the proposed development are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009. 2. I will hear from the parties as to further orders disposing of the appeal as may be necessary. -- 7 of 9 -- 8 ‘ANNEXURE A’ -- 8 of 9 -- 9 -- 9 of 9 --