Cooroy Golf Club Incorporated v Noosa Shire Council
[2001] QPEC 27
•8/03/2001
PLANNING AND ENVIRONMENT
COURT OF QUEENSLAND
| CITATION: | Cooroy Golf Club Inc & Anor v Noosa Shire Council & Anor [2001] QPE 027 |
| PARTIES: | COOROY GOLF CLUB INC and ROBERTS BROS HOLDINGS PTY LTD Appellants v THE COUNCIL OF THE SHIRE OF NOOSA Respondent and STATE OF QUEENSLAND Respondent by Election |
| FILE NO/S: | 49 of 1997 |
| DIVISION: | Planning and Environment |
| PROCEEDING: | Determination of preliminary point in appeal |
| ORIGINATING | Planning and Environment Court, Brisbane |
| COURT: | |
| DELIVERED ON: | 8 March 2001 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 23 February 2001 |
| JUDGE: | Judge Robin QC |
| ORDER: | Appellants permitted to amend their town planning application. |
| CATCHWORDS: | Local Government (Planning and Environment) Act 1990 s.4.15(2), (3) and (4), s.6.1.25, s.6.1.26, s.6.1.39 and s7.1A(3), (3B), (3E) and (4) - Integrated Planning Act 1997 s.4.1.52(2)(b) – preliminary point in town planning appeal – modification of rezoning application sought by (developer) appellants held minor and capable of being implemented should the appeal succeed – modification of a combined golf course and residential development included (i) “give and take” relocation of boundaries substantially increasing the road frontage of the latter and (ii) consolidation of ingress and egress to the road to a single (new) location. |
| COUNSEL: | Mr W Cochrane for the appellants Mr T Trotter for the respondent Ms P Pavey for the respondents by election |
| SOLICITORS: | Kinneally Mahoney for the appellants Wakefield Sykes for the respondent Crown Law for the respondents by election |
Before the court is a preliminary issue raised by the Council which effectively has
generated an application by the appellants for relief of the kind confirmed by the
Court of Appeal in Ecovale Pty Ltd v Council of the City of Gold Coast (1998)
QPELR 529 to be in principle available – by way of modifying the town planning
application the subject of their appeal.
This appeal and the underlying application by the appellants (developers) have
rather long and chequered histories. The original application made to the Council
in September 1992 was a composite one for rezoning of land in Eumundi Road,
Cooroy from its existing zone of “Rural Catchment & Special Uses (Railway)” to
“Open Space, Residential Single Unit & Residential Low Density”. The intended
uses disclosed were “9 hole golf course extension (and) 77 lot subdivision & 1
motel site.” By its letter dated 29 November 1996 the Council notified its approval
of the application so far as it called for inclusion of part of the land within the Open
Space Zone, indicating conditions to which the extension of the golf course would
be subject. The letter went on to advise that the Council had determined to:
“B.
Refuse PSA1 and that component of R404 which involves the rezoning of the land to the Village Residential and Residential Low Density for the following reasons:-
1.1
The urban component of the applications conflicts with the Strategic Plan the Shire of Noosa, in particular in terms of the aim for the Dam Catchment Area, Dam Catchment Area objectives (1) and (2), the aim for the Urban Area and Urban Area objective (2).
1.2
The urban components of the applications do not comply with the Cooroy Development Control Plan, nor do they adhere to the intents of the Plan as indicated by the aims and objectives to the Plan and in particular, Residential Objectives 2, 3 and 4; Country Town Character Objectives 1 and 5 and Rural and Rural Residential Objectives 1 and 2.
1.3
The urban components of the applications do not comply with the recommendations of the Planning Study Impact of Land Use on the Surface Runoff Quality in the Lake Macdonald Catchment.
1.4
As the urban component of the applications do not comply with the Strategic Plan and the Cooroy Development Control Plan, Council is required to refuse those components of the applications pursuant to Section 4.4(5A) of the Local Government (Planning and Environment) Act.
1.5 The Environmental Impact Statement and various supplementary reports fail to satisfactorily demonstrate that the urban component of the applications will not increase the risk of water quality impacts upon Lake Macdonald.
1.6
Development of the land for urban purposes would have a detrimental impact on water quality within Lake Macdonald.
1.7
Approval of the urban component of the applications may jeopardise the provision of an economic and quality water supply for the urban areas of the Shire of Noosa.
1.8
There is no need for an amendment to the Cooroy Development Control Plan to facilitate an extension to the existing golf course. Extensions to the golf course, where they are consistent with the objectives of the Strategic Plan, are also consistent with the objectives of the Cooroy Development Control Plan.
1.9
The applicants have not demonstrated a need for further land to be set aside for urban purposes in Cooroy and adequate land is already set aside under the Cooroy DCP for such purposes.
1.10 There is inadequate capacity within the Cooroy sewage treatment plant to cater for expansion of the urban area of Cooroy, having regard to the existing urban commitments made under the Cooroy DCP.
1.11
The land is not suitably located for urban purposes having regard to the potential for impact from surrounding land uses and due to the land being located within the Lake Macdonald catchment area.
1.12 Subsequent development of the land may create a traffic
hazard.1.13 The proposal is not in the public interest.”
Whether there is substance in the grounds assigned by the Council for its refusal is not
of present concern, but for decision in the appeal, if it goes ahead.
Following institution of the appeal there occurred a reconfiguration of the subject
land (apparently based on mutual transfers between the appellants), agreed to by the
Council and duly registered. The Club then made a development application for
“material change of use – golf course” in respect of its land (following the
reconfiguration) in August 1999. On 21 March 2000 the Council advised its
approval of that application and grant of a Development Permit in respect of Lot 1
on S.P. 115854, Parish of Tewantin, granting a Development Permit, subject to
conditions, amending the Planning Scheme pursuant to s.6.1.34 of the IPA to
include that land in the Open Space Zone and agreeing to a certain refund of fees.
In light of the reconfiguration and subsequent events, the appellants here now wish
to pursue an amended form of development of the balance of the land which has
become Lots 2 and 3 on S.P. 115864. The purpose of this application by the
appellants is to establish their ability to use the existing appeal to obtain the altered
outcome Roberts Bros. Holdings Pty Ltd (in particular) now seeks. The application
may be seen as coming under s. 4.15 of the Local Government (Planning and
Environment) Act 1990, and is of a kind which would now be decided by reference
to s. 4.1.52(2)(b) of the Integrated Planning Act 1997 – see for example Telstra
Corporation Limited v Pine Rivers Shire Council & Ors, Appeal 231 of 1999,
29.9.2000. It was common ground, however, that ss. 6.1.25, 6.1.26 and 6.1.39 of the IPA require this application to be determined under the former legislation, on
the basis that the court has become the decision maker. See s. 7.1A(3),(3B),(3E)
and (4) of the P&E Act and Ecovale The court has to decide whether or not the
modification the appellants wish to make is “of a minor nature”, the onus in that
respect lying on them. Ecovale indicates the limits upon the court’s powers to
modify are to be found in s.4.15(2) and (3).
Section 4.15 of the P & E Act is, in part:
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(a) in its opinion the modification is not of a minor nature; (b)
in its opinion the modification would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection;
(c)
if the application to modify seeks the modification of an approval – the approval was the subject of an appeal to the Court and the Court has made a determination on the appeal;
(d)
the application to modify seeks the modification of a condition that was imposed because of an objection made when public notice of an application was given.
(3) For the purposes of subsection (2), a proposed modification is of a minor
nature if –
(e)
the proposed use to be made of the land the subject of the modification is not varied by the addition of different uses;
(f)
the gross floor area of buildings or proposed buildings on the site is to be increased by less than 5%;
(g)
the number of storeys above ground level to be contained in any building or proposed building or part thereof on the site is not to be increased;
(h)
the locations of the proposed ingress to or egress from the site are not to be substantially altered;
(i) any altered ingress to or egress from the site is to be to or from the roads –
(i) approved by the local government in dealing with the relevant application; or
(ii) specified in the relevant application;
(j)
the amenity or the likely future amenity of the locality would not, in the opinion of the local government, be adversely affected by the proposed modification.
(4)
An alteration referred to in subsection (3)(d) or (3)(e) is to be taken to be a modification of a minor nature if the location of the proposed ingress and egress as proposed to be altered or the road from or to which ingress or egress is to be had if the proposed modification is made is a State-controlled road under the Transport Infrastructure Act 1994 and the approval of the chief executive (of the department in which the Transport Infrastructure Act 1994 is administered) has been obtained to the location of the points of ingress and egress.”
Whereas the change to the development application proposed in the Telstra matter
was seen by the local government not only as minor, but also as justifying a change
in attitude to one in support of the amended proposal subject to appropriate
conditions (see p. 11, l. 16 of the transcript of proceedings), the Council in this
matter regards the modification(s) applied for as not of a minor nature. A change to
ingress and egress locations is included, but State Main Roads authorities are
content with (indeed, positively support) the changed proposal. Their involvement
is the explanation for the State of Queensland’s having become a party and being
represented on the application, against which (unlike the Council) the State of
Queensland had nothing to say.
In Westfield Limited v Gold Coast City Council (2000) QPELR 121, 131, Newton
DCJ noted that Main Roads approval of modification of proposed traffic
arrangements was “not to the point”. The State’s attitude does not take matters to
do with ingress and egress out of the picture; those aspects may remain relevant to
amenity considerations should the appeal proceed to a full hearing. On applications
such as the present, modifications acceptable to, or required by Main Roads have
been held not minor: see Westfield and Stavrianos Superannuation Funds 1 & 2 v
Ipswich City Council (1999) QPELR 64.
The reconfiguration has been associated with a reshaping and partial relocation of
the residential developments proposed. Originally, they were proposed to account for 10 hectares sought to be rezoned Residential Single Unit and 7433 square
metres sought to be rezoned Residential Low Density. (13.065 hectares was sought
to be rezoned Open Space and the balance of the total site, 4,498 square metres, was
to retain its original zoning, but earmarked for future Main Roads’ resumption –
this small parcel, right at the south-west corner of the land is now in Main Roads’
hands.) Speaking generally, the residential sections of the original proposal were
located in the southern part of the subject land extending from its frontage to
Eumundi Road to its rear boundary with the North Coast railway. Subsequent to
the reconfiguration, the residential area has become elongated, stretching north, so
that the frontage to Eumundi Road is significantly extended to the north and the
residential area no longer backs on to the railway. Indeed, the golf course area not
only occupies the whole of the railway frontage but curls around the residential part
to the south to establish its own small frontage there to Eumundi Road (also known
as Myall Street). Lot 2 contains 2.229 hectares, Lot 3, 7.033 hectares. In
aggregate, there is a reduction in size of the residential component as proposed. A
“reduction” or scaling down of a proposed is not necessarily a minor modification.
It may remove “benefits” of a proposed development or otherwise change its
impacts in a way that could attract objections. See Westfield, Stavrianos and
Carillon Development Ltd v Maroochy Shire Council (2000) QPELR 216; cf
Navicio Pty Ltd v Douglas Shire Council (1997) QPELR 298.
Unlike the situation in the Telstra case, there is no information before the court as
to the attitudes of people who might be concerned by the proposed modification. It
was common ground that it would be of no assistance to the appellants to produce
witnesses to say they were unconcerned, but that it would tend to assist the Council,
or anyone opposing the present application, to produce witnesses to say they would have objected to the modification, had it been revealed as part of the original
proposal.
(It was common ground that the court should treat the modification as having been
sought in 1992. As in Telstra, this may produce practical difficulties if time has
passed and newcomers to the relevant locality who could not have anticipated the
modification find themselves adversely affected by it. In Telstra I thought it
appropriate to give a direction, satisfied in the result by an undertaking offered, to
protect the interests of such people. Speaking more generally, where, as here,
substantial time has elapsed, I would expect any judge hearing the substantive
appeal to ensure that, one way or another, persons affected by a modification who
have been deprived of the opportunity to become objectors or submitters have their
points of view presented to and considered by the court. In the present case, it can
perhaps be confidently assumed that the Council will persist in its opposition to the
development application, at least on the grounds it specified in 1996, and perhaps
on others that have become relevant since.)
Without derogating from the onus which the appellants bear, it is convenient to
identify, by quoting from Mr Trotter’s helpful submissions (which contain
references to the affidavit of the Council’s Manger of Land of Use, Mr Adamson)
the respects in which the modification sought may be other than minor or might
have attracted objections:
“ 5. ...This amendment seeks, in effect, to delete the original Golf Course component from the land, re-arrange the Residential component, change access and internal layout. 6. The major differences are:
(1)
The original application dealt with land comprising some 24 hectares, the Golf Course component of some 13 hectares is now to be deleted.
(2)
The land to be dealt with as far as the Residential component is concerned, is shown on MHR2.11 as being restricted to Lots 2 and 3, which comprise an area of 9.22 hectares instead of the original 24 hectares.
(3) There are significant variations in the areas and
location of the Open Space Zone.(4)
There is a reduction in the Village Residential Zone of 2.5 hectares with a different internal configuration.
(5)
The Golf Club was intrinsically linked to the Residential component by way of storm water disposal (Adamson para 9).
(6)
Originally there were three access points from Myall Street and now there is only one with consequential amenity impacts. See Adamson 11 and 14, and compare SMA3 vs SMA2. The access point has now been moved further to the north west (Adamson para 15).
(7)
Other changes referred to by Mr Adamson relate to the prospect of a person being likely to object to the proposal if circumstances allowed. Those issues are referred to in paragraph 20 of his Affidavit.
7. The proposed amendment is:
(a) Not of a minor nature;
(b)
Would affect persons to a degree with would, if the circumstances allow, cause that person to make an objection.”
7(a) and (b) pick up the provisions of sections 4.15(2)(a) and (b) respectively.
In the circumstances, Mr Trotter’s 6(1) and (2) appear to me to raise matters which
are essentially technical. The mix of golf course and residential uses proposed for
the aggregate site is essentially unchanged. Recent decisions such as Stavrianos
and Westfield have acknowledged (as I do) the usefulness of the “test” put forward
by Helman DCJ in Texbeam v Brisbane City Council (1995) QPLR 108, at 110:
“...in considering the nature of a proposed amendment or variation the proposal ought to be looked at broadly and fairly for the purpose of determining whether the amendment or variation is of such consequence that public notice should be given of it. If then, looking at the new proposal broadly and fairly, the court is to conclude that it is not materially different from the original one then clearly the appellant should not be put to the trouble and expense of giving further notice.
I accept counsel’s submission that s.4.15 can be a useful guide in deciding what is and is not a material difference subject to this reservation: it can be only a guide and the categories of cases in which there are material differences cannot be regarded as closed. Each case must be assessed on its merits. A certain feature of a proposed modification may not constitute a material difference in one set of circumstances but the same feature might well be of great significance in a different set of circumstances.”
A similar caution against “recourse to exotic legalism” (quoted in the reasons in
Westfield) appears in the reasons of Marks J in Pacific Seven Pty Ltd v City of
Sandringham (1982) VR 157, 163-64.
It is convenient to note here authorities cited by the parties, by Mr Trotter in
particular, for propositions I have accepted in deciding this application:
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amend an application: see Barakat Properties Pty Ltd v Pine Rivers Shire
Council (1984) 85 LGERA 99, 102 and Texbeam.
(ii) In determining whether the proposed amendment is minor, it is reasonable
to ask whether it produces a materially different application from that
which was advertised: see Kidd v. B.C.C. (1984) QPLR 34, 37, Matus v.
Cairns City Council (1981) QPLR 106, 108, Roy Somerville Surveys Pty
Ltd v. B.C.C. (1992) QPLR 114, 115.
(iii) Whether an argument is “minor” is a relative term. It must be assessed
against the application in its unmodified state: see Jeteld Pty Ltd v
Toowoomba City Council (1995) QPLR 285, 288.
(iv) The deletion of a component from an application may constitute a
substantially different development if the deleted use was a significant part
of the application … Singh v B.C.C., (1997) QPELR 55.
As to Mr Trotter’s 6(3) and (4), the variations referred to do occur. It is a question
for the court whether they are so “significant” as to preclude their being permitted
in this appeal. Relocation of a proposed “service centre” development in its
entirety, 680 metres from one end of the applicant’s land to the other, had that
effect in Stavrianos, as did the relocation of an artificial wetland (being one feature
of a much larger proposal) in Westfield, given Newton DCJ’s concern that the
change introduced new risks to public safety. There will be occasions when
relocation of a proposed development by a small distance may have a large effect,
for example if there is a relocation to more elevated land magnifying the potential
visual impact. In my opinion, following the Texbeam approach, the relocations
involved here should be considered minor. The reduction in size of the proposed
village residential area is not accompanied by any reduction in the number of
residential lots proposed (77). It may follow that the residential development is of
greater density, although a change in layout may have an ameliorating effect. Such
matters were not looked into on the application. In principle, they can be
satisfactorily dealt with in the main appeal. The increase in the motel area from
7433 square metres to 7500 square metres seems self evidently minor, amounting to
less than one per cent. There is no suggestion s.4.15(3)(b) might come into play.
As to point 6(5), notes attached to the plan of amended lot layout state that the
stormwater is to be disposed of in the same manner as proposed in the original
application. To the extent that Mr Adamson in his paragraph 9 is expressing a fear that the golf course land may no longer be subject to any kind of control by the
court, it may be noted that the Club remains a party in the appeal, amenable to
appropriate orders and able to give appropriate undertakings. In any event, the
court’s final order may condition any rezoning and/or subsequent development
upon some secure arrangement rendering the golf course land available to receive
stormwater.
Point 6(6) somewhat overstates the matter of access. There were three access
points originally in the sense that there is existing access at the clubhouse at the
extreme northern end of the bottle-shaped site, where the width of the land narrows
dramatically, and a new (I infer replacement) clubhouse with a parking area was
proposed about the middle of the Myall Street (Eumundi Road) frontage,
presumably with access there, independent of an access further to the south for the
residential development. The modified proposal envisages the clubhouse located
away from Myall Street, between the residential area and the railway line (to which
the residential area no longer will extend); access to the clubhouse in that location
and the associated parking area (apparently to be shared with the residential area)
will be a common access, now some 400 metres from Ferrells Road where there are
existing residences across Myall Street, rather than 440 metres. Whether there will
be any new clubhouse, and where it might be located, will be determined in some
future development application. In my opinion, the clubhouse, wherever located,
should be regarded as associated with only a single access. If that facility is
relocated, it seems to me the existing access point at the far north of the site,
whether or not it is retained, will have negligible practical significance. On the
material before the court I would accept Mr Cochrane’s submission, for the
appellants, that the use of a common access point would not increase the amount of traffic on the local road system given that the scale of the amended proposal is
similar to that of the original, and would have an identical potential to create traffic.
I have detected in the respondent by election’s stance (and in general experience in
the court) that advantages are seen in limiting the number of access points to
significant roads such as Myall Street. Having carefully considered the statutory
provisions set out above regarding ingress and egress, and regarding s. 4.15(3)(d)
and (e)(ii) as cumulative, I am satisfied that the provisions lead to the conclusion
that the modification (as regards access) is minor. (I would add that I do not accept
Mr Adamson’s point (not advanced by Mr Trotter) that the modification component
in respect of the parking area represents the addition of a different use.)
Point 6(7) may be understood by reference to paragraph 20 of Mr Adamson’s
affidavit:
“20.
It is likely to cause a person to make a properly made submission objecting to the proposal, if circumstances allowed because:
20.1.1 The area of land to be included within the Residential and Village Industry zones has been relocated closer to residential properties in the vicinity of Ferrells Road and the Relocatable Home
Park.
20.1.2. The proposed access to the residential component has been relocated closer to residences in the vicinity of Ferrells Road and the Relocatable Home Park.
20.1.2 The number of access points have been reduced to one common access resulting in an increase in the amount of traffic at this location, which may adversely affect local residents.
20.1.3 The number of access points have been reduced to one common access resulting in any increase in the amount of traffic at this location, which may adversely affect local residents.20.1.4 The number of allotments fronting Myall Street and the Bruce Highway has been increased from 10 to 21, which may be visually obtrusive to residents in the vicinity of the Relocatable Home Park.
20.1.5 The size and location of the area of land to be included in the Low Density zone for the motel component has significantly altered from 0.7433 hectares to approximately 1.06 hectares.
20.1.6 The location of the residential component of the amended application has been relocated so that environmental values of the land may be altered and have not been considered with the Environmental Impact Assessment.
20.2 The amenity or the future amenity of the locality would be
adversely affected by the proposed modification because:20.2.1 There is likely to be an increase in traffic using the common access point for the changed application to serve the residential allotments, the increased scale of the motel use, proposed tennis court and additional car parking area not previously shown.
20.2.2 The change to increase the number of allotments fronting Myall Street and the Bruce Highway may adversely affect the visual amenity of the locality.”
The issues raised must be considered and determined by the court not to be
troublesome in order to avoid the impact of s.4.15(2)(b). The issues have been
referred to and assessed above, with the exception of the point that persons in the
vicinity of Myall Street and the Bruce Highway (which lies slightly to the west of
Myall Street and indeed meets it not far south of the site) may face a phalanx of as
many as 21 residences as opposed to ten. As with all of the changes the appellants
have in mind, if there is to be any rezoning, the court will be able to manage
amenity impacts appropriately. Speaking for the court, for the purposes of
s.41.5(3)(f) I detect no adverse affect on the amenity or likely future amenity of the
locality from this change. I say that without purporting to bind any judge who may
in the future hear the main appeal. The court now has the independent function of
reaching a judgment for purposes of subsection (2)(b) as to how persons in some
way connected with the area might react. The issue seems to be one of visual
amenity only. The residences will have no frontage to Myall Street, or access to it,
save by internal roadways within the development. The number of residential allotments, as noted, remains unchanged at 77. What may be lost from the change
is the prospect (view) of a certain amount of golf course frontage. However, this
appears to be compensated for by the abandonment of the proposal to take up what
might otherwise be pleasant fairways etc by a clubhouse and parking, also by the
addition of a tongue of golf course reaching Myall Road at the southern end of the
site. It is a matter for judgment, but applying the Texbeam approach, I find that
subsection (2)(b) does not give rise to any impediment in the way of granting the
particular application of the appellants now before the court.
The parties are invited to make submissions as to what orders are appropriate in
light of the foregoing reasons.
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