Carillon Development Ltd v Maroochy Shire Council
[2000] QDC 5
•1 February 2000
DISTRICT COURT OF QUEENSLAND
CITATION: CARILLON DEVELOPMENT Ltd v MAROOCHY SHIRE COUNCIL [2000] QDC 5 PARTIES: CARILLON DEVELOPMENT LIMITED (Appellant)
v
MAROOCHY SHIRE COUNCIL (Respondent)
BIRCH CARROLL AND COYLE LIMITED
(ACN 098 659 643) (First Co-Respondent)PHILIP ALEXANDER ROSLAN, DUDLEY BRUCE OTTON, ELIZABETH ARMITAGE, PETER WAYNE STANNARD (Second Co-Respondents)
BUDERIM 2000 (Third Co-Respondent)
FILE NO: Appeal 3347 of 1999 AND
PARTIES:
CARILLON DEVELOPMENT LIMITED (Appellant)
v
MAROOCHY SHIRE COUNCIL (Respondent)
BIRCH CARROLL AND COYLE LIMITED
(ACN 098 659 643) (First Co-Respondent)
PHILIP ALEXANDER ROSLAN, DUDLEY BRUCE OTTON, ELIZABETH ARMITAGE, PETER WAYNE STANNARD (Second Co-Respondents)
BUDERIM 2000 (Third Co-Respondent)
FILE NO: Appeal No 3375 of 1999 AND
PARTIES: BIRCH CARROLL AND COYLE LIMITED
(ACN 098 659 643) (Appellant)v
MAROOCHY SHIRE COUNCIL (Respondent)
CARILLON DEVELOPMENT LIMITED
(ACN 000 305 742) (Co-Respondent)FILE NO: Appeal 3614 of 1999 DIVISION: Planning and Environment Court PROCEEDING: ORIGINATING COURT: DELIVERED ON: 1 February 2000 DELIVERED AT: Brisbane HEARING DATE: JUDGE: Quirk, DCJ ORDER: CATCHWORDS: COUNSEL: SOLICITORS:
These matters relate to an application by Carillon Development Limited for a development permit for a material change of use of land at Buderim. (A reconfiguration of the subject land was also sought).
As submitted the application sought approval of a development described as “a mixed use – cinema complex, residential accommodation, retail food/beverage outlet, residential workshops, arts/crafts/tourism, retail outlets, gourmet food mart, galleries and offices, community facilities and environmental park”.
In deciding the matter the respondent sought to reduce the intensity of the proposal . It was prepared to approve only a scaled down cinema complex (300 seats instead of 750 seats), a guest house of only two storeys (three storeys were sought) and refused to approve a proposal for a stand-alone fast food restaurant.
Having considered its position, the appellant has concluded that a scaled down cinema was not compatible with its commercial objectives and has sought to remove that element from the proposal. It was first intended to replace the cinema complex with a “health, medical, leisure (excluding cinemas) or commercial uses with a maximum gross floor area of 832m²)”.
That intention has now been abandoned. The proposal that the court is now asked to entertain involves the deletion of the cinema component and some on-site car parking.
The matter is governed by the Integrated Planning Act. Section 4.1.52 provides:
“(1) An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant or is submitted for a development application, the Court –
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate; and
(b)must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”
“Minor change”, as the term appears in this context, is not defined by the Act although, in Schedule 10, the following definition is found:
“Minor change”, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change –
(a) require referral to additional concurrent agencies; or
(b) cause development previously requiring only code assessment to require impact assessment; or
(c) for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allow.”
It could be observed that, of the three considerations identified in this definition, the last is of a kind that was considered of importance in the approach taken by the Court to “modifications” prior to the present legislation.
Although the definition in Schedule 10 is specifically applicable to development approvals, it would, in my view, be incongruous not to take a comparable view of the concept of “minor change” in the interpretation of s.4.1.52. Some support for such an approach may be found in s.3.2.9 and s.3.2.10 which deal with changes that may be made to an application before it is decided by the planning authority. Section 3.2.10(c) focuses upon the likelihood of any change to an application attracting “a submission objecting to the thing comprising the change”.
By reason of s.4.1.54 (particularly in (3)) the decision of an appeal of this kind is taken to be the decision of the planning authority. It would be reasonable to suppose that the legislature would intend a consistent approach to changes to any proposal during the approval process.
The appellant pointed to what it saw as a subtle difference between the definition of “minor amendment” in Schedule 10 and the matter identified in s.3.2.10(c). The definition, it was said, called for a consideration of the application for approval in its changed form while s.3.2.10(c) called for a consideration of the likelihood of objection to “the thing comprising the change”. This, it was suggested, involved a less stringent test.
By way of example it was pointed out that, in this case, the “thing comprising the change” was limited to the removal of the cinema complex. The submission went on that while a change that involved the addition of a particular element to a proposal might attract adverse attention from potential objectors, the removal of such an element would be much less likely to do so.
I doubt whether such a subtlety was intended by the legislature. Nor am I convinced that it would have the consequences contended for by the appellant. I do not believe that changes to a proposal should be treated as some form of mathematical entity and, furthermore, the appellant’s point seems to suppose that all elements of a proposal have a negative impact upon its appeal to interested members of the community. This is simply not so. A good example might be the provision of an acoustic screen along a boundary that might be regarded by neighbours as a very positive feature of a proposal. Its removal could well convert satisfaction with the development into opposition to it.
However, I do not believe that it is necessary to dwell on this aspect of the matter. In my opinion it is quite appropriate here to pose the determinative question in this way:
“Can the Court be satisfied that the removal of the cinema component from the development would not be likely to attract an adverse submission that was not provoked by the proposal in its original form.”
To assist my consideration of the matter I was provided with town planning assessments from two experienced consultants, Mr Humphries (to the appellant) and Mr Buckley (to the respondent). Each made a careful and professional appraisal of the proposal and the effects of the intended changes to it. Submissions that had been made in respect of the original proposal were also examined.
Mr Humphries believed that the cinema complex was not (in terms of development scale and configuration) a particularly influential component. He pointed out that many of the submissions he had received “alluded to the proposed cinema complex in negative terms” and thought it reasonable to suppose that these submitters would see its removal as a “generally a positive amendment”. He added that a prudent person who supported the cinema but not other components of the development would have
“made known their attitude to the various elements of the proposal in a submission, mindful that not all of the elements would necessarily be approved or be built especially given the proposed reconfiguration of the site”.
Mr Buckely, on the other hand, saw the cinema complex as an “integral component” of the development. He added that its removal could
“result in a materially different proposal absent of an important component intended to provide measurable community benefit. On this basis it is likely that the amended proposal would have attracted fresh submissions or different submissions.”
While I respect the opinions of these experienced consultants and appreciate their efforts to assist, in the end result the Court must provide the answer to the determinative question. The provision of this answer requires an examination of the matter not from the perspective of an experienced town planner or a person of any particular level of prudence or awareness in these matters but from that of the members of the community to whom the right of objection extends. Importantly it is whether any further (and adverse) submissions at all might have been provoked by the removal of the cinema complex. Whether such submissions would involve objection sustainable in town planning terms is beside the point.
I have concluded that I am not satisfied that the removal of the cinema component from the development would not be likely to attract an adverse submission that was not provoked by the proposal in its original form. The consideration by community members of any proposal (and a decision to support or oppose it) involves an appraisal of all of its features some of which might be attractive while others might displease.
Pertinently in this case the possibility that the provision of a cinema complex as originally intended could have been regarded by Buderim residents as a community benefit can not be discarded . Nor can the possibility that it might have overcome dissatisfaction with other features of the proposal that might otherwise have provoked objection to it. Such a concern is not necessarily allayed by the finding of Mr Humphries that in the objections lodged, the majority of references to the cinema complex were negative.
Accordingly I find that it would not be appropriate to allow the appeal to proceed in respect of a proposal from which the cinema complex has been removed. The application must therefore be refused.
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