Gaven Developments Pty Ltd v Scenic Rim Regional Council

[2009] QPEC 119

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2009] QPEC 119

PARTIES:

GAVEN DEVELOPMENTS PTY LTD (ACN 103 951 239)

(Appellant)

v

SCENIC RIM REGIONAL COUNCIL    

(Respondent)

and

CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY

(First Co-Respondent by Election)

and

CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

(Ninth Co-Respondent by Election)

and

B WHITE

(One Hundred and Forty-Fourth Co-Respondent by Election)

FILE NO/S:

BD2747 of 2008

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court

DELIVERED ON:

01 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2009

JUDGE:

Robin QC DCJ

ORDER:

Changes to development application determined to be “only minor change”

CATCHWORDS:

Integrated Planning Act 1997 s 4.1.52(2)(b)

Preliminary issue whether changes to appellant developer’s proposal were “only minor change” – of four buildings (medical centre, specialty shops, retail showroom and 2000 m² supermarket) the three smallest were to be relocated and reduced in size, further the “medical centre” was to be split in two, the smaller component designated “pharmacy” – no earlier mention of pharmacy – whether this was a change at all – site’s frontage was to a State controlled road and Main Roads Department required a roundabout outside the access – where many submitters (mostly adverse) and co-respondents by election – appellant receptive to allowing joinder of further co-respondents

COUNSEL:

C Hughes SC with M Williamson for the Appellant

B Job for the Respondent

R Duhig (solicitor) for the Ninth Co-Respondent by Election

SOLICITORS:

Deacons for the Appellant

Corrs Chambers Westgarth for the Respondent

Crown Law for the Ninth Co-Respondent by Election

1. Before the court is a “minor change” point which has to be resolved favourably to the appellant developer if its appeal against the Council’s deemed refusal of a development application made to the Council originally in March 2007 is to proceed to a hearing on the basis of the current version of the proposal, having regard to s 4.1.52(2)(b) of the Integrated Planning Act 1997 (IPA).  The change is to be assessed by reference to the proposal presented to the public during public notification rather than the original plans presented to Council.  Those were changed in response to an information request sent by the Council to the appellant proposing the addition to a “Medical Centre and Mixed Use Commercial Development” of a supermarket. 

1. The proposal relates to land at 17 Main Western Road, North Tamborine, presently vacant (except for four small buildings in a treed area in the centre) and said to be used for running  horses.  The proposal as advertised concerned a “Development Permit for a Material Change of Use for a Professional & Consulting Service (Medical Centre) and Shopping Centre Supermarket, Specialty Shops and Retail Show-rooms) and a Material Change of Use for an Environmentally Relevant Activity – ERA 15(a) Sewage Treatment Works (21 or more equivalent persons but less than 100 equivalent persons)”.

1. The Council’s solicitors’ letter of 3 November 2009 conveniently summarises its approach:

“Purely from a traffic perspective, our client does not consider the amended plans of development to constitute a ‘minor change’ for the purposes of section 4.1.52(2)(b) of the IPA, because the amended plans of development change:

(a)the location of the vehicular entrance access point; and

(b)the type of entrance access from CHR intersection to a roundabout, and

(c)the internal carparking and traffic movement layout; and

(d)the location and layout of the sub floor carparking.

In the alternative, it is our client’s position that the amended plans of development do not constitute a ‘minor change’, due to the cumulative impact of the abovementioned changes and the following further amendments to the plan of development:

(a)changes to the internal layout and location of the activities on the site; and

(b)the significant reduction (by 565m²) in the scale/size of the retail showroom use; and

(c) the significant reduction (by 400m²) in the scale/size of the medical centre; and

(d)the introduction of a new Professional and Consulting service activity of Pharmacy.”

1. The changes which the appellant now propounds would appear to owe much to traffic considerations and the manner in which they were resolved in a mediation held under the auspices of the court.  Main Western Road is an important link in the local road network and the site’s only frontage; immediately opposite is a large aged care facility operated by PresCare.  The court heard that some 374 traffic movements per day were expected to be generated by the proposal.  Traffic considerations loomed large in the enormous number of submissions received from members of the public, well in excess of 1,000, overwhelmingly opposing the proposal (although there were dozens of submissions in support).  In the interests of confining the material before the court, the parties agreed to place before it only a (large) sample of the submissions.  Within the sample, quite a few submitters withdrew their opposition on further consideration, perhaps aided by being put in possession of additional information. 

1. The extent of local opposition to the proposal (based not only on traffic considerations but others such as the change which commercial development threatens to the character of the area – the court was told its designation for planning purposes is Village Residential) has been and remains considerable.  It may be the explanation for the Council’s failure to accept its planning officers’ recommendation to approve the proposal.  The appeal is brought against a deemed refusal.  Required to formulate an attitude for the purposes of the appeal, the Council has made its opposition clear. 

1. There are 144 co-respondents by election in the appeal, comprising the Chief Executive, Department of Main Roads (9^th co-respondent by election) and 143 adverse submitters – which means that hundreds who might have elected to join in the appeal chose not to join in.  Mr Duhig, for the 9^th co-respondent by election, indicated that he would abide the order of the court.  The others were not represented, the court being told that for purposes of the determination to be made now, they were content to have the Council argue the matter.  The Council placed before the court an email from Ms Ashton, who represents the owner of two parcels immediately north of the PresCare facility, indicating continuing opposition to the proposal.  Neither she nor the company involved became co-respondents.  The roundabout bodes to complicate their access.  Main Western Road will constitute two of the branches of the roundabout; the cross-branches will be the site access and the nearby entrance to the aged care centre.  This particular component of the opposition to the roundabout may be balanced out by information that the court has that the tenant(s) in possession have indicated a lack of concern. 

1. The court expressed the view that it would be inclined to join in the appeal as additional co-respondents by election any submitters who had not elected previously but might wish to participate and be heard at the merits hearing (tentatively fixed for the February 2010 sittings) on the basis that the proposal has changed since they were required to elect originally.  Mr Hughes SC, for the appellant, indicated that he anticipated being able to obtain instructions from his client to consent to joinder in those circumstances.  Anyone (submitter or not) wishing to have a say at the merits hearing will have a good chance of locating among the respondent and gross of co-respondents by election one willing to present his or her evidence.  The circumstances of this proceeding are such that it would be absurd to contemplate that anyone wishing to have a say about the appellant’s proposal as it now stands will not have the opportunity:  one cannot imagine that any conceivably relevant issue might go unexplored.

1. Strictly, these considerations have no part to play where, as here, the court is asked to decide whether change to a development application “is only a minor change”. That expression bears its ordinary meaning, albeit a meaning attended with the flexibility that characterises terms such as “significant” or “substantial”. The IPA Schedule 10 definition of “minor change” applies in relation to development approvals, notably for the purposes of s 3.5.24, and not to contexts such as the present. Nonetheless, the parties and the court regularly find themselves considering whether changes sought to be made to development applications might have attracted submissions if part of the proposal as discoverable during the notification period. In a number of cases the judges have noted the Schedule 10 definition and taken from it guidance regarded as pertinent for s 4.1.52 purposes, as some indication of what the drafters of the IPA saw as “minor change”. In this context, however, the court is not precluded from allowing the appeal to go ahead in reliance on a changed application on the basis that opportunities for the making of submissions might have been lost or circumvented.

1. Judge Wilson SC distilled from earlier cases certain relevant principles in Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474 at 476:

“(a)it is important not to adopt a test other than that stipulated in the statute.  The phrase ‘only a minor change’ is a simple and straightforward one which should be construed principally by reference to matters of scale and degree, and broadly and fairly’;

(b)it is attractive to adopt a generous approach to the interpretation of the limits within which an application may be changed;

(c) it must, however, be remembered that the matter comes before the Court by way of an appeal and the Court must not deprive the proceedings of that character by usurping the function of the decision-maker at first instance;

(d)the question may be determined with some assistance from the criteria referred to in Schedule 10 of IPA

(e)the possibility that the changes proposed are beneficial or ameliorative may be relevant to the third arm of the definition of minor change in Schedule 10, (c) of IPA; but the fact that the changes proposed may be characterised in that way does not automatically overcome the jurisdictional hurdle that the changes must be limited to ones which are only minor;

(f)for the purpose of the exercise it will be useful in some cases to distinguish between the salient, and incidental, features of the original proposal.  Modification of a salient feature, if small or inessential, may amount to no more than a minor change.  On the other hand, modification of a salient feature which cannot reasonably be seen as small or inessential is likely to be more than a minor change;

(g)the dictionary definition of ‘minor’ includes unimportant, or insignificant. The use of the word ‘only’ in s.4.1.52(2)(b) of IPA might be taken as an indication that what is contemplated is something relatively unimportant.”

The list appears again in Transequator Pty Ltd v Brisbane City Council [2007] QPEC 486 at [2]. Principle (b), the parties agreed, might be seen as conformable with s 1.2.3(1)(a)(i). I agree. Macquarie Leisure Operations Limited v Gold Coast City Council [2007] QPELR 418 at [29]-[31] was pointed to by Mr Hughes (who was in the case, with Mr Williamson) as the source of principle (c). In present circumstances, when the Council had the opportunity (if not the obligation) to make a decision, it refrained from making one. I think there is no question here of its function as decision maker being usurped; it would be inappropriate to consider that the application that the appellant now propounds is relevantly different from the one the Council had before it. The case last mentioned expounds principle (e); I do not understand the appellant to contend that its changes are beneficial or ameliorative.

1. The source of principle (f) is Lascorp Development Group v Burnett Shire Council [2007] QPELR 424. Judges tend to develop individual vocabularies of their own. I confess to unease at the use of “salient”,[1] given the dictionary meaning of the term in the Concise Macquarie Dictionary:

   [1]I find I used the expression “salient parts of his recommendation” in a decision referred to by Mr Job in paragraph 9 of his written submissions, Law v Beaudesert Shire Council [2000] QPEC 090 (at page 16 of the reasons).

“salient / ′seIliәnt/, adj.  1.  prominent or conspicuous: salient features.  2.  projecting or pointing outwards, as an angle.  3.  leaping or jumping. –n.  4.  Fort.  A salient angle or part, as the central outward projecting angle of a bastion or an outward projection in a battle line.  [L saliens, ppr., leaping forth] – saliently, adv. – salience, saliency, n.”

and the Australian Concise Oxford:

“salient  a. & n.  1.  a.  (Of angle, esp. in Fortif., opp. Re-entrant) pointing outwards; jutting out, prominent, conspicuous, most noticeable, (salient points, features, characteristics); (Her., of lion etc.,) standing on hind legs with fore-paws raised.  2. (arch.) leaping or dancing; (of water etc.) jetting forth; ~ point, (arch.) initial stage or origin or first beginning.  3.  n.  salient angle or part in fortification or line of attack or  defence.  4.  Hence sā'lĭENCE, sā'lĭENCY,  n.s., ~ly²  adfv. [f. L salire leap; see –ENT].”

I take “salient” to mean something like key, core or essential.  The Lascorp test was applied recently in Karnew Properties Pty Ltd [2009] QPEC 93 where the relocation of a supermarket was seen as a minor change in its context.

1. Here, while the proposed supermarket will remain essentially where it was always proposed to be and at the same size, the other three buildings proposed are changed in their locations.  There is no longer room on the road frontage for specialty shops      (480 m²) and the medical centre (850 m²) “end on” (ie with their long sides facing the road); they exchange positions (the speciality shops now in the south) and their narrow ends face the road.  The retail showrooms (750 m²) proposed to be along the southern boundary and forming the bottom of a “U” with the two buildings mentioned and the supermarket in the west is reduced to 185 m² in front of the northern end of the supermarket.  The reduction in size may owe something to business judgment.  The relocation facilitates access to new undercroft parking below the southern part of the supermarket which replaces parking originally proposed in an “L” configuration below the retail showrooms and medical centre, arrangements suggested by a fall in the land.  That fall is less pronounced under the supermarket, necessitating excavation which the court was assured means that the height of the supermarket building will not change.

1. I am satisfied, as the judge was in Karnew Properties, that in context, that relocation represents only minor change. 

1. The medical centre is now replaced by two buildings, one of 450 m² , alongside a separate “pharmacy” building of 200 m² .  It was said that replacement of a large building by two small ones will enhance the “village” feel.  In the circumstances, the addition of a fifth building is only minor change.  There is a Carillon Development Pty Ltd v Maroochy Shire Council [2000] QPELR 216 point in the reduction of the medical centre by 400 m² .  There may be a similar point in the reduction of “retail showrooms” (now singular).  This brings in the problematic putative submission aspect (would people have complained there was not enough space proposed for the indicated uses?) as did Maher v Hervey Bay City Council [2008] QPELR 74. I do not think the possibility of submissions along those lines is a consideration here. Also, on the Lascorp Corporation approach, I regard each of these changes as “only a minor change”. 

1. More concerning is the introduction of the new element of pharmacy.  Mr Job, for the Council, submits that the absence of any hint of a pharmacy use in the application material, and indeed references to components of the medical centre other than pharmacy in that material (such as physiotherapist), is important, citing Liquorland Australia Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 at [19] – [20]; he argues that the specific inclusion of a pharmacy when none was indicated before is a “notable” change, not only for the public generally, but particularly for other pharmacists within the trade area.

1. In principle, the addition of a new use may very well represent a change which is more than “only minor”.  The defined use in the relevant (2000) Beaudesert Planning Scheme was, as publicly notified, “professional and consulting service”.  Mr Job supplied a copy of the relevant definition to the court after the hearing.  It extends to premises used or intended for use for any activity included in an appendix of some 150 professional and consulting-type activities or “in the opinion of the Council, consistent with the activities so listed”.  The appendix items are not further defined.  They include dispensary, which appears apt to cover that part of activities within a pharmacy focusing on filling of prescriptions, etc.  There are two listings for chemist, “biological (office)” and “consulting and/or industrial (office)”, which are hardly apt to bring in the activities of a pharmacy.  The advertised refinement of the use (“medical centre”) is not listed, but medical practitioner is, in a list which typically describes people who pursue certain activities (with exceptions such as dispensary, hydrotherapy, community health centre, dental emergency information service and legal advice bureau).  Material lodged with the Council in the appellant’s interest at no point specified pharmacy or anything to do with pharmacy, while being specific in nominating the expectation that there would be medical practitioners, dentist, physiotherapist, for example.  Mr Schomburgk, a planner, expresses his opinion that a pharmacy would be expected to and does, come within the description of medical centre in a context like the present.  He says no one would be in the least surprised to find a pharmacy located in a development promoted as a medical centre.  That may be right; all of us would be familiar with the ubiquitous co-location of general practitioners’ rooms and pharmacies.  My own response to the situation is that a pharmacy would be even more readily anticipated in a set of “specialty shops”.  The 2000 Planning Scheme contained no definition of the quoted term but described a shop as “any premises used or intended for use for the purpose of displaying or offering goods for sale to members of the public in a manner which is principally indoors.  The term includes the incidental storage of such goods on the same premises, but does not include a retail plant nursery, service station, shopping centre or warehouse as defined herein”.

1. The appellant’s development application was made pretty well as late as it could be under the 2000 Planning Scheme.  Its replacement (2007) offers a more expansive definition of “shop”:

“Shop means the use of premises for the display, offering for sale or sale by retail of goods or the provision of personal services to the public.  The use also includes the following ancillary activities when associated directly with the primary ‘Shop’ function -

(a)         the reception or return of goods; and
(b)         the incidental storage of goods on the premises; and
(c)         ancillary administration and accounting activities; and

(d) the parking of service vehicles where ancillary to on-site operations; and   

Specific examples include, but are not limited to a discount variety shop, mens and womens clothing shop, bookshop, chemist, supermarket, video hire outlet and coin operated laundromat and the like.

Note:       The term does not include a Retail Plant Nursery, Service Station, or Retail          Showroom as defined herein.”

This definition may come too late to be legally relevant, but in my view it illustrates the understanding that would have prevailed at all relevant times that “shop” may include a chemist shop, which I take to be the equivalent of a pharmacy.  Applying a commonsense, practical approach, I do not think there is any change at all when a use of “pharmacy” hitherto unmentioned, is specified as one of the particular uses where what was applied for and publicly notified includes “professional & consulting service (medical centre) and … Specialty Shops”.[2] 

[2]At least one of the submitters (Joy Guyatt) took the trouble to note pharmacy services already available in the general area.

1. The appellant identified the “salient features” of its proposal as publicly notified after the incorporation of the supermarket as:

“The development of this land in the Village Residential Precinct (at the edge of the Business Area precinct but still within the Tamborine Mountain Zone) for the purpose of a mixed use development incorporating:

(a)a mid range supermarket (2,000m²) that is not a full line supermarket (say 3,000 m²) but a facility capable of providing a much more reasonable range of food and groceries that is presently available in the 800 m² supermarket at Mt Tamborine;

(b)associated specialty shops;

(c) a medical and health centre;

(d)the opportunity for some small retail showroom floor space; and

(e) a design with access to and from only one point on Main Western Road and with those uses accommodated in several detached buildings arranged around a central car-park area with that ground level car-park supplemented by some underground parking.”

1. An analysis along those lines is appropriate.  On the site, physically, the moving around of buildings, the considerable reduction in size of one and the “splitting” of another into two is, from any point of view, only “minor change”: there is no increase (nor any significant decrease) in bulk or scale; relocation of the undercroft parking will not alter the essential appearance or functioning of the proposal.  Emphasis was placed, however, on impacts off the site by the proposal for a roundabout in Main Western Road to manage traffic at the site entrance, which is also to be relocated.  The road is a State controlled one and, essentially, the relevant Department can do what it chooses with its road.  The appellant, which needs access, has no option but to go along with what the Department insists upon and make its development proposal accordingly.  The Council bases its submission that change in this regard is not minor on the following evidence of Mr Beard:

“9.Whilst I am conscious that the issue of whether the changes between the Original Plans and the Amended Plans represent only a minor change for the purpose of the Integrated Planning Act 1997 is a matter for the Court to determine, from my perspective as a traffic engineer the following matters are material to a comparison of the Plans.

(a)although a CHR intersection was originally proposed, no details of the intersection were provided.  By way of illustration, Exhibit ‘CB-5’ to this Affidavit is a true copy of an indicative CHR intersection arrangement taken from the DTMR Road Planning and Design Manual;

(b)The Appellant had not demonstrated that a CHR intersection could be provided without unacceptable impacts upon adjacent properties on the eastern and western sides of Main Western Road, from the subject land (and opposite it) to the intersection to the north. By way of contrast, the roundabout which is now proposed is capable of providing significantly more satisfactory access to the proposed development;

(c)the proposed relocation of the access driveway, and its incorporation into a roundabout, has consequential impacts upon existing driveways to the aged care facility (Roslyn Lodge) to the east, and to the land which immediately adjoins Roslyn Lodge to the north;

(d) a CHR intersection arrangement would not need to have any physical impact upon the Roslyn Lodge access as gaps may be left in the painted median. With the roundabout proposal, the access to that facility becomes the fourth leg of the proposed roundabout; and

(e)the driveway accessing the land to the north of Roslyn Lodge similarly need not have been affected by a CHR arrangement.  With the roundabout proposal, to minimise the impact on the access to that land, a relocated driveway could be incorporated into the roundabout.  As a consequence of the roundabout, complications will arise with respect to:

(i)vehicles exiting the existing driveway wishing to travel north.  Those vehicles will have to either negotiate the roundabout before heading north, or potentially turn right across the traffic lanes in a  location very close to the roundabout itself; and

(ii)vehicles travelling to that land from the south will either have to travel a circuitous route to enter from the north, or also turn right across the traffic lanes in a location very close to the roundabout itself;

(f)the roundabout arrangement substantially changes priorities afforded to different traffic streams when compared with those at a CHR intersection.  For example, traffic turning right into the subject site would have priority over northbound through traffic on Main Western Road, thereby reversing the priority of a CHR intersection;

(g)the proposed roundabout arrangement would have different physical characteristics to a CHR arrangement, including:

(i)the roundabout is more land consumptive in and around the proposed access to the subject land, with the consequence that more pavement is required (and accordingly drainage considerations arise as a consequence of increased impervious surfaces);

(ii) there is a substantial cross-fall across Main Western Road from the west to the east.  The roundabout arrangement will require embankments on the subject land’s frontage to Main Western Road;

(iii)Sketch 1891SK1 which formed part of the joint expert report dated 5 June 2009 indicates, in an indicative way, a roundabout arrangement overlayed upon the existing traffic arrangements.  The dotted north-south lines are an indicative representation of the existing pavement.  As is depicted by the indicative CHR layout from the DTMR Road Planning and Design Manual, a CHR arrangement would have required a right turn lane into the subject land. Those works would have taken a more linear form.

10.I have considered whether the changed traffic arrangements to which I have referred would be likely to cause a person to make a submission objecting to the proposal if they were able to do so.  In my opinion, the changes are such that it is likely that submissions would be lodged on traffic engineering grounds, particularly from the owner or residents of Roslyn Lodge, and/or the owner of the adjoining land to the north, whose accesses were not originally impacted upon by the development.”

1. Some comfort may be taken from the ability those putative submitters enjoy to ventilate traffic-related grounds in the appeal, given that not only do they have the Council’s support, they already have the standing of submitters, albeit they may have pursued other issues previously.  I have no difficulty in accepting PresCare as appropriate guardian of the interests of Roslyn Lodge residents.  PresCare’s submission essentially asked Council to impose appropriate conditions.  As a submitter it could be let in to the appeal late, to ventilate any concerns about traffic.  It has been known all along that the proposed development would generate hundreds of traffic movements per day.  While there may be cases in which a change in location of access along a development site’s sole frontage may be seen as not minor, I do not regard the present as such a case.  As Mr Beard says, the implications of the proposed roundabout, including the extent and effects of works necessary to construct it, may well cause concern, and potentially serve to doom the proposal.  Those are questions for the hearing on the merits.  In assessing whether a change to a development application is minor or something more, where the final form of access to the State controlled road may be a matter of indifference to the developer, except to the extent that it may have to pay, it is appropriate to regard matters to do with access as ancillary for present purposes.  That is not to deny that the implications of a change may not be momentous for others.  What might result in the ultimate is something for the merits hearing.  Here, an outcome by which the appellant will never get to a merits hearing is inappropriate.

1. The court has had occasion to explore more of the ramifications of “only a minor change” in s 4.1.52(2)(b) of IPA than the “usual”, simpler case. The present circumstances present an opportunity for reflection on the implications of the word “minor”, which may be seen as the opposite of “major”. On a more refined approach, flexibility can be introduced by a category in between of “moderate”. Local statutory recognition of such a system or arrangement may be found in Schedule 1 in the Criminal Offence Victims Act 1995. Some adverse consequences for victims of crime such as brain damage are categorised as “minor/moderate” or “severe”. The same applies for bruising/lacerations etcetera, fracture/loss of use of leg/ankle and facial disfigurement or bodily scarring. For other types of injury, three separate categories are recognised and provided for. It cannot be said that, of necessity, something that might be seen as substantial or significant is therefore not “only minor”. Phenomena such as minor surgery, minor accidents or minor disturbances are likely to be significant for those directly involved. Section 4.1.52(2)(b) should not be construed so restrictively that it becomes unreasonably difficult for developers to refine their proposals to accommodate changes inspired by their own more mature consideration or by the suggestions of others, without being forced back to the beginning or some much earlier stage in the process of seeking and obtaining development approval.

1. For the above reasons, the issue for the “minor change hearing” directed by Judge Rackemann’s order of 6 November 2009 is resolved by the court’s now determining that the changes proposed by the appellant to its development application constitute only minor change.