Coles Group Property Development Ltd v Sunshine Coast Regional Council & Anor [2010] QPEC 9 (2010) QPELR 494

1-1 [2010] QPEC 9 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 3689 of 2009 COLES GROUP PROPERTY DEVELOPMENT LIMITED Applicant and SUNSHINE COAST REGIONAL COUNCIL Respondent and CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS Co-respondent BRISBANE ..DATE 05/02/2010 ORDER CATCHWORDS Sustainable Planning Act 2009 s 367, s 374(1)(c) Changes to a court ordered development approval held "permissible", not to involve a substantially different development - submissions in public notification of the development application (in 2002) could not be found - court acted upon summaries of submissions in the council's internal planning report -- 1 of 6 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court has made an order in terms of the initialled draft. It is made in an originating application pursuant to sections 367 and following of the Sustainable Planning Act 2009. It is said to change a development approval encapsulated in a Court order in proceeding BD1675 of 2004 in respect of a local shopping centre at Coolum. In truth the changes are minuscule, although in respect of what occurs on the ground it is envisaged that change of a significant, indeed substantial kind will occur. The Court's order approved a supermarket of up to 2,500 square metres and I understand the plans the Court had provided accordingly. However, in the event the supermarket operator located for the development, IGA, was interested in a much smaller store of 836 square metres which is what has been there to this point. That operator is to vacate the centre and the applicant is interested in moving in, but on the basis of a supermarket of the size envisaged in the Court's order of 15th November 2006. In association with establishment of a larger supermarket, or perhaps more correctly, contemporaneously in the detail of the approved proposal, some changes are desired to be made, and some changes to the conditions in the Court's order. Those are minor from any point of view, and certainly "permissible" within section 367 in that they couldn't possibly be seen as resulting in a substantially different development. -- 2 of 6 -- 1-3 ORDER 1 10 20 30 40 50 60 They are summarised in Ms Carter's affidavit as follows: "6. The principal changes from the Approval Drawings to the Revised Drawings are as follows: (a) new pedestrian walkway and crossing as outlined in conditions 56 and 57; (b) reconfigured loading dock location; (c) identification tower and parapets deleted; (d) relocated tenancies T20 and T22; (e) new high-level awning over supermarket entry; (f) staff car parking amended for service vehicle turning requirements; (g) new pedestrian crossings and revised access ramps (remaining in the same location) landscaping along existing walkway along Birtwell Street frontage; (h) revised car park orientation; (i) raised pedestrian crossing outside tenancy T22; (j) new waste enclosure in accordance with condition 15; and (k) footpath to be completed in accordance with condition 59.” Reference to the tracked amendments, which appear in the annexure to the draft order, provides some further detail such as that the change in car parking arrangements involves a slight reduction from 274 to 268 spaces. The matter has been before Judge Rackemann on an earlier occasion when it was adjourned until today because of the -- 3 of 6 -- 1-4 ORDER 1 10 20 30 40 50 60 unavailability of the submissions which were made during the relevant public notification process back in 2002. Section 374(1)(c) requires the Court "to the extent relevant" to assess the current request to change the existing approval and conditions to submissions that were made. His Honour, on the last occasion, was unwilling to determine the application in circumstances where the submissions were unavailable. During the adjournment period a search has been made. The Court is told that of the six folders or boxes constituting the council's file two are missing which are the ones containing the submissions. Further searching in the adjournment period has not borne fruit. It is theoretically possible that given further time and searches something might become available. In my view, a common sense practical approach has to be taken to situations such as the present. The new legislation, like its predecessor, calls on the Court to advance the Act's purpose in carrying out its functions. The Act's purpose includes ensuring that decision-making processes are accountable, coordinated, effective and efficient. See section 5(1). If an adjournment can be avoided that is best achieved. It's unsurprising that with the passage of time submissions may not be recoverable for consideration by the Court. I recall a recent matter in which, faced with a similar task to today's, there had been hundreds of submissions, indeed more than a thousand. The Court was prepared to proceed on the basis of a (large) representative selection of submissions -- 4 of 6 -- 1-5 ORDER 1 10 20 30 40 50 60 selected by the parties whose interests were not totally convergent. (See Gaven Developments Pty Ltd v Scenic Rim Regional Council [2009] QPEC 119.) The Court has the advantage of access to the council's internal planning report. It contains a summary of the submissions which were received in public notification on page 5. Considerable experience over the years is that such material in planning reports is comprehensive and reliable. There were 237 properly made submissions of which only one was supportive. Seven of the submissions were petitions with an aggregate 42 signatories. The bulk of the 229 letters were in one of seven standard forms. There were 77 individual letters. According to the summary the main issues raised included non-compliance with the planning scheme, in particular in respect of the size of the supermarket and trade area, traffic impacts and car parking issues, need for an additional supermarket, the impact on residential amenity (noise and visual), what was called a fragmented approach to development within the relevant village centre and inconsistency with the desired environmental outcomes of Maroochy Plan 2000. That summary is sparse indeed; however, towards the end of the report is a 10-page section entitled Outcome for Public Notification which, in 10 pages of close type, lists in tabular form the grounds of submission and the planning officer's response. That response was to the effect that the submissions do not stand in the way of the proposal being -- 5 of 6 -- 1-6 ORDER 1 10 20 30 40 50 60 supported. It was described as one for "a 2550 metre square shopping centre (supermarket)". More to the point, the Court in 2006 endorsed the proposition that the proposal ought to be supported with a supermarket up to the size envisaged. It would be odd indeed if the Court now were to revisit those issues. I'm satisfied that I'm in a position today to consider the submissions by reference to a summary of their purport (which there's no reason to doubt) to the extent relevant that exercise doesn't dissuade the Court from granting the relief sought. In my opinion proceeding in that way does not offend the letter or spirit of s 374(1)(c); nor did the sampling process referred to offend the corresponding provision in the Integrated Planning Act 1997. A practical, commonsense approach rather than a full and exhaustive one may on appropriate occasions be taken to this curial responsibility. The council is supportive. Mr Lyons, appearing for it, has drawn my attention to sections 372 and 373, the effect of which is that the council by its inaction within the 20 business day period mentioned is in the position of being taken to have no objection. Mr Laidely for the Department of Main Roads has appeared today. His client has no concern given that the conditions which it thought appropriate for the development aren't affected. ----- -- 6 of 6 --