Franklyn Harvesting P/L v Cairns Regional Council

[2012] QPEC 63

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Franklyn Harvesting P/L & Ors v Cairns Regional Council & Ors [2012] QPEC 63

PARTIES:

FRANKLYN HARVESTING PTY LTD ACN 086 174 914 (AS TRUSTEE), C20 PTY LTD ACN 106 582 085 (AS TRUSTEE) AND JORED HOLDINGS PTY LTD ACN 106 691 990 (AS TRUSTEE), TRADING AS REDLYNCH CENTRAL SHOPPING CENTRE
(Appellant)

V

CAIRNS REGIONAL COUNCIL
(Respondent)

And

LEND LEASE REAL ESTATE INVESTMENTS LIMTED ACN 063 427 896 (AS RESPONSIBLE ENTITY OF THE AUSTRALIAN PRIME PROPERTY FUND – RETAIL)
(First co-respondent by election)

And

DEXUS FUNDS MANAGEMENT LIMITED, ON BEHALF OF SAS TRUSTEE CORPORATION (STC)
(Second co-respondent by election)

And

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Third co-respondent by election)

FILE NO/S:

12 of 2012

DIVISION:

Planning and Environment Court

PROCEEDING:

Application in a pending proceeding

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

12 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2012

JUDGE:

Dorney QC DCJ

ORDER:

1. It is declared that the changes proposed to the development application (that is the subject of the appeal) which are identified in the affidavit of Mr Schomburgk filed 28 September 2012 are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009 (Qld).

CATCHWORDS:

Appeal – application in pending proceeding – proposed changes for which DA granted – whether “minor change”

Integrated Planning Act 1997 (Qld) s 4.1.52(2)(b)
Sustainable Planning Act 2009 (Qld) ss 350, 819(5), 819(6), 821(2)(b)

Dempsey v Brisbane City Council [2012] QPEC 2
Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1985) 55 LGRA 146
Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redlands City Council & Ors [2010] QPEC 19
Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council & Ors (2011) QPEC 27

COUNSEL:

C Hughes for the applicant
S Ure for the respondent
J Horton for the first co-respondent by election Lend Lease
N Kefford for the second co-respondent by election Dexus Funds Management
N Field for the third co-respondent by election the Chief Executive, Department of Transport and Main Roads

SOLICITORS:

Marino Moller Lawyers for the applicant
King and Company Solicitors for the respondent
Minter Ellison Lawyers for the first co-respondent by election Lend Lease
Johnson Winter & Slattery Lawyers for the second co-respondent by election Dexus Funds Management
Norton Rose Lawyers for the third co-respondent by election the Chief Executive, Department of Transport and Main Roads

Introduction

1. This proceeding is an appeal against an approval by the respondent of a development application for a material change of use for an extension of an existing shopping centre Site at Redlynch, near Cairns. 

1. This application is for an order that proposed changes to that development application, specifically identified in the Application filed 28 September 2012, are a “minor change” for the purposes of s 350 of the Sustainable Planning Act 2009 (Qld) (“SPA”). 

1. Although the applicant/appellant’s written Outline states that the order is opposed by both the first and second co-respondents by election, only the first co-respondent by election has both filed material and made written and oral submissions.

Legislative background

1. Because the development application was made under the Integrated Planning Act 1997 (Qld) (“IPA”), s 4.1.52(2)(b) of the IPA applies. In turn, through ss 819(5), 819(6) and 821(2)(b) of the SPA, the application must be determined pursuant to s 350 of the SPA. 

1. As stated in s 350 of the SPA, “minor change” is defined as, relevantly for present purposes by s 350(1)(d)(i), a change to the application that does not result in a substantially different development. The remaining three requirements contained in sub-paragraphs (ii), (iii) and (iv) of s 350(1)(d) are satisfied in this case and need no further examination.

Relevant authority

1. This issue has, naturally, been the subject of many, and varied, decisions.  Illustrative of the general principles is Heritage Properties Pty Ltd & Ausbuild Pty Ltd v Redlands City Council & Ors[1]. There, Rackemann DCJ noted that, in determining whether a development constitutes a substantially different form of development, it is appropriate to have regard to the guidelines made under the terms of the SPA: at 511.  In this case, Statutory Guideline 06/09 – Substantially different development when changing applications and approvals was made pursuant to s 759(1)(c): see page 3 of the Statutory Guideline.  In considering this particular Statutory Guideline, Rackemann DCJ noted that the list provided in the guideline was a list of those changes which “may” result in a substantially different development but that it is not the case that a change of the kind there listed is necessarily to be judged to be substantially different: at 512.  He added that it may also be noted that the focus of the list in the Guidelines is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts: also at 512. I do not have to enter that debate at this time. Lastly, at least for present purposes, he held that the sole consideration which fell for determination there was whether the changes are “minor” in the relevant sense, so as to permit the Court to consider them: also at 512. 

   [1] [2010] QPEC 19.

1. In a later consideration of the same issue in Dempsey v Brisbane City Council[2], Jones DCJ accepted that it is no longer a feature concerning a minor change in the present context that consideration must be given to the likelihood of the change provoking further submissions objecting to the proposed change: at 397-398 [8]. Further, while concluding that the meaning of such an imprecise and ambiguous word as “substantial” is highly dependent on the context in which it appears, he went on to state his agreement with remarks made by Robin QC DCJ in Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council & Ors[3] to the effect that, when regard is had to the extrinsic material relevant to the Bill which became the SPA, it is tolerably clear that any increases in scale and bulk and in demands on public services and infrastructure are of particular significance in determining whether a change is minor for relevant purposes: at 399 [15] and [19].

   [2] [2012] QPEC 2.

   [3] (2011) QPEC 27.

Proposed changes

1. As summarised, accurately, by Mr Schomburgk in his affidavit filed 28 September 2012, the differences between the approved plan (“AP”) and the modified plan (“MP”) are:

·     in terms of the areas for retail uses:

o   the area described as “new shops” for the proposed “Discount Department Store” (“DDS”) has increased from 4,500m² to 5,014m²;

o   the area for “new shops” overall (including the designated “DDS”) has increased from 5,933m² to 6,599m² (with 58m² of kiosk space being deleted);

o   the Gross Lettable Area (“GLAR”) of the overall shopping complex has increased from 12,175m² to 12,783m² (being a 5% increase);

·     in terms of site access:

o   the intersection to the site with the Redlynch Connection Road has moved approximately 26 metres to the South;

o   the site entry/exit to Redlynch Connection Road now allows for right and left turn ingress and egress;

·     in terms of car parking:

o   the “Future Development Area” in the south-east corner of the site is now used for car parking;

o   the upper deck of the car park now extends approximately 25 metres further to the east, although still remaining 8 metres from the southern boundary;

o   the upper deck of the car park now provides for 316 cars (81 more than previously);

o   the total number of car parks has increased by 136 cars (from 670 to 806 spaces); and

o   the upper deck of the car park now provides weather protection to the southern entrance. 

1. There is, as will appear, an apparently significant dispute as to whether the AP included an area intended for a DDS and, if so, whether it matters anyway.

Unchanged features

1. I accept that the following relevant features of the AP, as outlined in the appellant’s written submissions, have not been altered:

·     access and egress from the same roads;

·     inclusion of a large retail tenancy;

·     a modest expansion of the Woolworths Supermarket;

·     demolition of the existing post office tenancy to provide for the eastern entrance;

·     new Centre Management and new amenities;

·     same western service lane;

·     same location of the ramp to the upper deck of the car park;

·     same location of the southern entrance to the Mall;

·     450m² of commercial office space; and

·     a childcare facility.

Areas of dispute

1. The submissions made on behalf of the first co-respondent by election challenged almost every aspect of the proposed changes.  As summarised, the asserted new impacts would be:

·     that 2 homes, situated at 58 and 60 Norfolk Circuit, on the Site’s southern boundary would have a car park which would now be considerably closer and within some 10 metres of the dwellings, noting that on the AP the area immediately adjacent to those dwellings (designated “residential”) is presently a “future development area” and is some considerable distance from the boundaries of those homes;

·     the increase in the area contended to be now “identified” as being for a DDS would constitute a change from an unknown mix of tenants to a DDS-based proposal, thereby taking the proposal “into territory which is directly contrary to the planning scheme”; and

·     the introduction of a new source of “friction” for vehicle movements to and from the car park.

1. It was submitted, in opposition to the application, that the additional impacts: would exacerbate the types of impacts challenged in the existing appeal; and, for some (at least), would change the way that the proposal operates by an intensification of traffic loading. Further, it was submitted that there would be additional impacts caused by the increase in the “new shops” size.

1. It is necessary to deal with the relevant issues, in turn.

Increase in size of “new shops”

1. The first issue for consideration here is the contested issue of when a proposal for a DSS was first identified.  It is to be understood that there is no definition in the Cairns Plan (dated March 2009) – an extract from which became Exhibit 2 in this application – of a “discount department store”.  It must also be recognised that the economic expert relied upon by the first co-respondent by election, Mr Rumbold, acknowledges that not all DDSs have a minimum size of 5,000m².  In fact, his criticism appears to be that a proposal for DDS of 4,500m² would “probably have proved unviable and is unlikely to have proceeded at all”: see his Report of 3 October 2012 in his affidavit filed 5 October 2012. 

1. In response to Mr Rumbold’s evidence, the applicant filed an affidavit, by leave, of Mr Owen, also an economist.  Suffice it to conclude from that affidavit, at this time, that there exist areas of significant disagreement about such incapacity to operate, about appropriate catchment populations and whether an increase in the relevant area (of 514m²) would compromise the role and function of higher order centres and involve a new use with different impacts so that the amendments would change, in a substantial way, the argument already being run to this effect by the appellants’ opponents.  In particular, Mr Owen contends that, since the Redlynch Central Shopping Centre is designated as a “District Centre” in the Cairns Plan, a 12,753m² GLAR or GLA (depending on the favoured abbreviation of the expert, or Plan, in question) is well below the figure of 15,000m² in the “acceptable measures” relevant to a centre of such a designation in that Plan. It is impossible to determine this appeal issue in any final way at this interlocutory stage. Moreover, where the Performance Criteria for Sub-Regional Centres have among “acceptable measures” reference to “at least one” DDS, it gives me no reassurance that simply one DDS might not be appropriate for a District Centre. Thus, the mere absence of a DDS reference in that context does not incline me at this stage to be persuaded that the question is unarguable by the applicant, or will render an appeal argument by any respondent less so.

1. In light of the fact that the affidavit of Mr Marino, filed by leave, refers to information before the respondent prior to 14 December 2011 describing the area in question, which had increased from 3,120m² to 5,000m² and then reduced to the present 4,500m², variously as a “Discount Store”, a “Discount Department Store” and “Discount Department Retail”, I conclude that nothing turns, for present purposes at least, on a failure to include on the relevant drawings the actual words “Discount Department Store” rather than, as appears both on the AP and the MP the words “New Shops” (a term which is not only used for the 5,014m² area in dispute but also for other shop areas). 

1. Consequently, I intend to focus, simply, on the actual change in area and leave for debate in the appeal itself the other issues, such as maintaining the hierarchy of centres, which the first co-respondent by election wishes to agitate with respect to conflict with the planning scheme.

1. I see no comparability between this increase and the decrease canvassed in Hancock Development Corporation Pty Ltd v City of Tea Tree Gully[4]. As Jacobs J remarked, there the appellant “abandoned” the formal plans, did not put forward those plans “with some amendments and qualifications”, and put forward a “new set of plans” which it asked the tribunal to consider “for the first time”: at 149.

   [4] (1985) 55 LGRA 146.

Increase in size of the “DDS”

1. Because the Cairns Plan itself uses the term “GLA”, at least with respect to district centres, I will use the appropriate gross lettable floor area figures in determining the percentage increase.  On that basis, there is an overall shopping complex increase, relevantly, of 5%. 

1. The resolution, therefore, of the dispute raised by Mr Trevilyan in his affidavit, filed 5 October 2012, about whether the proposed increase in the floor area of the shopping centre was in excess of the “quantum” of 6% to 7%, must be resolved, at least for present purposes, in favour of a rejection of that conclusion.  That apart, concentration then turns to the increase for the “DDS” of 514m².

1. The publicly notified area, relevantly, was 5,000m². And since the issue of the “critical point of distinction” remains for further determination at trial, the only remaining concern is the relativity of the change. 

1. This analysis leads me to the conclusion that the proposed expansion of the “DDS” is modest in the context of the overall size of the shopping centre expansion as so far approved; and, since the publicly notified area was almost identical to that in the MP, this factor alone could not be found to give rise to any significant additional impacts.

Traffic

1. For the reasons just explored, I accept that the relevant increase in the shopping area is not what Mr Trevilyan identifies. But an attempt was made in oral argument to say, in fact, that Mr Trevilyan relied on “NLA” figures alone (since that is what Exhibit 1 demonstrates). While the car parking calculations on Exhibit 1 do reference NLA figures for the MP, not only does the AP rely on GLA figures, solely, but also the MP figures for GLA(R) and NLA are identical, negating any different outcome from the one that I reached. Accordingly, I do not accept that it has been presently established that the “additional” traffic loading is something “not less than 5% of existing volumes”.  In any event, Mr Trevilyan has been careful to express his view in terms of the “associated differential impacts” not being able to be “necessarily or automatically” considered “either insignificant or minor”.

1. The next traffic issue is that concerned with the intersection change.  With respect to this, Mr Trevilyan states that potential concerns are caused by “a modified priority arrangement”, although he joins the intensification of traffic loading – just rejected by me – as a further complication. 

1. With respect to the change, the affidavit of Mr McClurg, filed by leave, refers expressly to the Traffic JER. The first co-respondent by election did not nominate a traffic expert for the purpose of that Joint Expert Report. It was as a result of that Traffic JER that the experts agreed that the intersection “must be signalised to provide for a right and left turn ingress and egress”. As a result, a modified plan, DA02 P15, now incorporates such. It is difficult to see this, then, as other than minor.

1. The last issue is the increase in the number of car parks.  With respect to these, Mr McClurg asserts that the “friction” may require “some minor redesign of the internal circulation in these locations to improve traffic operations” but contends that such changes are not significant because they are internal changes and the impacts on them will be experienced internally to the site. While it may still be important that any impacts have “internal” effects, I agree that the “friction” concerns are not other than minor.  This is particularly so where most of the conclusions reached by Mr Trevilyan have as their premise the intensification of traffic loading, which, on the present evidence, I have rejected.

1. Since all other traffic issues are not contended to raise other than “minor” change characterisation, overall there is nothing arising from traffic and transport impacts which, by itself, gives adverse concern to me in this application.

“Built form” changes

1. Although Mr Reynolds, a town planner, asserts that, from the perspective of houses on Norfolk Circuit, there is a “dramatically changed built form”, he acknowledges that, viewed on a broad scale, the AP and the MP both represent a “significant development” of the site, concluding that the significant built form is “similar”.  His eventual conclusion is based upon reviewing the matter “at a finer scale”.  Whether or not it is true, as asserted in reply by Mr Houston, an architect, whose affidavit was filed by leave, that Mr Reynolds’ montages are not an accurate representation of the impact to the 2 houses on Norfolk Circuit, I conclude that there is no identified basis for looking at built form changes simply on the basis of such a confined effect. This outcome does not necessarily conclude the issue on the actual impacts on those 2 residences; but, limited to built form, the MP does not dramatically change it in terms of scale, bulk and appearance.

Impact to the 2 residences on Norfolk Circuit

1. No resident of Norfolk Circuit objected to the shopping centre expansion.  It is clear that even in the AP there was already a considerable effect both from the upper and lower decks of the car park in so far as such residents were concerned.  The nub of the objection is that an area formerly notified as a “future development area” is now being developed.  While it is undoubtedly true that at some future stage there may well have been a separate development application, possibly for a service station, it is also true that the AP must have some direct effect on the way that the future development area would be, in fact, developed – a factor capable of appreciation by any such resident.

1. In light of that, the changes shown on the MP, although having some impact different from the impact arising from the AP - particularly where the legislative restraint in s 350 of the SPA obviates any concern of the likelihood of prompting a hypothetical objector to make a submission - I find that the impact is not major, especially noting the proposed protections contained in the Noise and Light JER, addressed by Mr Schomburgk (in his affidavit filed by leave). It shows that there is an existing proposal for a 2 metre high timber acoustic fence to be placed between the particular residences and the subject site and, by appropriate screening, there would be no light nuisance caused either.

Conclusions

1. As addressed separately, none of the identified impacts reach the standard of resulting in a “substantially different development”.  Nevertheless, as is clear from the Statutory Guidelines 06/09, it is only by considering all factors in combination that an appropriate conclusion can be finally reached. 

1. Taking all the relevant factors canvassed into account, and considering them as a whole, given what has not been altered and given the modest expansion and modest impacts which I have determined would occur, I find that the relevant changes do not result in a substantially different development.

Orders

1. For the reasons I have expressed, the only order I intend to make, apart from any order which may be reached as to the parties attending mediation, is that:

· It is declared that the changes to the proposed development are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009 (Qld).