Eastside Community Centre v Brisbane City Council

[2011] QPEC 64

[2011] QPEC 64

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3537 of 2008

EASTSIDE COMMUNITY CENTRE	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 03/03/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350
Integrated Planning Act 1997 s 4.1.52

Consent order allowing appeal against Council refusal of development application for a "convention centre" - approves a material change of use for "community facilities" - "community facilities" better described the uses intended for the church-based proposal - changes to proposal accepted to be "minor change"

HIS HONOUR:  The order that the court has made in terms of an initialled draft at the invitation of the appellant and the respondent Council allows a developer appeal against refusal of an application for a development permit for material change of use for the purpose of a convention centre, and a preliminary approval to carry out building work on land at 880 New Cleveland Road at Gumdale.

The order recites the court's satisfaction that public notification requirements of the Integrated Planning Act 1997 (IPA) have been complied with. Also, that the change to the application, as it's presented to the Court for approval today, is a minor change within the meaning of section 4.1.52(2)(b) of IPA.

The two co-respondents by election have been active in resisting the appeal, participating in three mediations before the Registrar, for example, the third of which produced some changes to the proposal which one can easily infer were good news for one or more of the co-respondents by election.  Neither has appeared today when the matter was called on, although service by express post the appellant's application filed the 25th of February 2011 advising what was being sought has been established, and, likewise, an earlier notification of today's hearing by email communication using an address which Mr Miller and Mr Watson indicated in their respective entries of appearance.  Ms Johnston's affidavit shows that the Council has provided to the respondents a complete copy of the development approval constituted by the court's order.
In the circumstances, Mr Connor, appearing for the appellant, has taken some time to persuade the court that it's in order to grant the relief the appellant seeks today.  There are issues of public notification to do with the description of the proposal as a convention centre when, having regard to the planning scheme definitions, what was proposed fits more neatly under the definition of community facilities, and it's, indeed, the latter which wins approval today.  As it happens, community facilities are in a category of impact-assessable generally appropriate, rather than impact-assessable generally inappropriate, which would apply to a convention centre.

Speaking for myself, I would say that the description selected by the appellant or its advisors originally seems odd.  What's proposed is a church belonging to the Baptist Union of Queensland, but in a multi-purpose configuration, accommodating many purposes.  Nevertheless, they are ones which, I would agree with the planners' joint expert reports, fit much better under community facilities than under convention centre.

The IDAS application documents filed make it clear in various places that the uses include church.  The accompanying planning report similarly makes it clear what the intended uses were.  Indeed, on page 10 which is page 25 of the exhibit

of Hayley Elizabeth Rayment sworn yesterday, one finds in paragraph 4.4.2, after the setting out in quotes of the definition of "convention centre", a paragraph which very closely sets out, in describing the applicant's intentions, the gravamen of the definition of community facilities, noting the trouble drafters go to to make sure the definitions in planning schemes don't overlap, that it's probably an impossible exercise; success probably hasn't been achieved in this instance.

Unusual as it might seem for the result of the appeal to be approval of one defined use upon an application for another one, I'm comfortable about doing that, and don't consider, notwithstanding the observations of submitters, Mr Watson in particular, as to the allegedly misleading nature of the proper notification, that the appellant ought to be faced with any insurmountable difficulty in this regard.

The system that operates requires those interested in ascertaining the implications of the development application to inform themselves by going to the assessment manager's office to consult the application documents, or accessing them in some other way, rather than rely on what might be called "short form descriptions". See Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 also reported as Rathera Pty Ltd v Gold Coast City Council & Anor [2000] 115 LGERA 348.

The last aspect that took some time concerned changes to the proposal.  Copies of the publicly notified plans, later plans which the council was considering at the time of its refusal of the development application and the new plans have been placed before the court.

Ms Rayment, in her affidavit filed 1st of March 2011, identifies the changes by reference to her exhibits NJR3, NJR4, and NJR5, albeit by comparing the last two.  There hasn't been time to consider this in detail today, but I wondered if the comparison ought not really be between the latest version of the plans and those notified; however, the exercises are, in this case, essentially productive of the same conclusion.

The affidavit in paragraph 5 itemises the changes.  Mr Connor has taken me to plans to explain them in some detail.  Some are ones that typically cause no difficulty, such as increased vegetation to be retained, relocation of the refuse storage away from the boundary to a more central position within the site.  There's provision, as the Council requires, for a future widening of the road area to accommodate a bus set-down area.  There's been re-instatement of a platform area to part of the "church" building which at one stage had been removed.

I'm satisfied that whether the relevant definition is the old IPA one of minor change, for purposes of section 4.1.52, or the much more generous definition found in the Sustainable Planning Act 2009 and the associated statutory guidelines, the changes are minor; the court has included in the order a declaration to such effect. The appeal can proceed on the basis of the changes. Order as per initialled draft.
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