Habitat Development Group Pty Ltd v Maroochy Shire Council

[2008] QPEC 70

[2008] QPEC 70

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 346 of 2008

HABITAT DEVELOPMENT GROUP PTY LTD	Appellant
and
MAROOCHY SHIRE COUNCIL AND ORS	Respondents

BRISBANE

..DATE 18/09/2008

ORDER

Catchwords

Integrated Planning Act 1997 s 4.1.52(2)(b) - changes to replace carparking on the frontage of a convenience centre with a small cafe and a covered seating area, also to remove other parking from a designated "park" with replacement on-street parking provision deemed minor - co-respondent submitters given special liberty to apply for variation of order.

HIS HONOUR:  The Court made an order in terms of the initialled draft which resolves this developer appeal.  There is no appearance by the co-respondents-by-election who represent about one in four of those who lodged adverse submissions with the Council during public notification.

I accept from Mr Connor that the main point of the submissions was concern expressed about an area on the south side of Goshawk Boulevard at the intersection with Stringybark Road designated "park" which was originally to be made over largely to car parking to serve a convenience centre located on the northern side of that intersection.  There may have also been concern expressed regarding the visual impacts of car parking or parts of the convenience centre on the streetscape. 

On that northern part the changes to the proposal are represented by a 40 square metre café facility representing a new built element adjacent to the principal building and south of that a covered area where patrons will be able to sit.  That change is apparently brought about by the developer's willingness to indulge the Council which is seeking to achieve the aim of its planning scheme, familiar to me from having decided a recent appeal in respect of a nearby site, to establish a village atmosphere in the convenience centre designated for this location.  For what it is worth, Mr Connor offered to provide formal evidence to the Court of an existing development approval for the site under which the built form adjacent to Stringybark Road would be far more dominant. 

So far as car parking is concerned, in the overall picture there is what might be called a negligible increase in parking provision, but at the expense of convenience of patrons of the convenience centre. 

The café and adjacent covered area will mean the loss of some spaces in the principal car park.  Five on-street places will be provided in Stringybark Road and three in Goshawk Boulevard.  Further, there has been a radical revision of the location of car parks in the "park" area to the south of Goshawk Boulevard which will substantially enhance the operation of that area as a park.  Nose-in parking is to be provided on space which the diagram suggests will use for half of the developer's land and for the other half the road reserve of Goshawk Boulevard.

By December 2013 the park area is to be made over to the Council.  Although condition 96 may possibly leave room for an argument as to whether the developer obtains compensation for that dedication, Mr Connor assures the Court that that is not the intention and the Council can escape any obligation to pay compensation by requiring the dedication earlier.  The point of leaving the land in the developer's control in the immediate future is to allow the developer to use the site for various purposes including no doubt advertising and also the construction of an appropriate "entrance statement" for other components of developments on its large land holdings in the immediate area. 

The question for the Court in relation to the changes is the usual one under section 4.1.52(2)(b) of the Integrated Planning Act 1997.

The 10 co-respondents-by-election have been informed, albeit only very recently indeed, of what the Court would be asked to endorse today.  They have evinced a lack of interest in the appeal since a mediation some time ago resulted in an agreed outcome that the development could proceed, the conditions under which that might happen remaining to be resolved.

The case may arguably be seen as borderline, notwithstanding the Court's agreement with the appellant and the Council that the changes improve the proposal by attenuating impacts.  Minds might differ as to whether substitution of a small café and pleasant outdoor covered seating area represents attenuation of impacts.

My view is that the Court can safely conclude that no reasonable person would have been likely to make a submission on the basis of the changed plans who didn't have and use the opportunity to do so on the basis of the original plans.  In the circumstances there ought to be specifically reserved a window of opportunity to the co-respondents to approach the Court if they wish to be heard to submit that there ought to be some variation of this final order.

Accordingly, there is reserved in the order I have initialled liberty to the co-respondents to apply within seven days of advice being sent to them of the making of this order approving changes to the plans which the Court accepted were minor change.

I don't require service of the whole of the bulky order on the 10 co-respondents as it appears they already are in receipt of material illustrating what the changes are.

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