Habitat Development Group Pty Ltd v. Sunshine Coast Regional Council

[2009] QPEC 37

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 597 of 2009

HABITAT DEVELOPMENT GROUP PTY LTD	Applicant
and
SUNSHINE COAST REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 03/04/2009

ORDER

CATCHWORDS: 

Integrated Planning Act 1997 s 3.5.33 - developer's originating application seeking changes to development conditions set by the court in its earlier appeal served only on the Council - whether the changes constituted "assessable development" - whether adverse submitters who became co-respondents by election in the appeal should be involved.

HIS HONOUR:  The Court has made an order in terms of the initialled draft incorporating the Court's requirement (which may or may not be strictly necessary under the legislation and rules) to delay the coming into effect of the order until certain adverse submitters who might be concerned about the order being made in their absence have been informed about it and effectively have an opportunity, if so advised, to approach the Court.

I don't intend at this stage to be providing any assurance to any of those the Court requires to be informed that they will be entitled to be heard should they seek to have the order changed.

The terms of the order are as follows:

"IT IS ORDERED THAT the Originating Application be     approved and that the development approval granted by

this Honourable Court on 18 September 2008 in Planning and Environment Appeal No. 346 of 2008 for a development permit for a material change of use for the purpose of commercial uses 999m² - shop, restaurant, fast food store, office and medical centre on land described as Lot 2 on SP 152236 and located at Goshawk Boulevard, Buderim be changed in accordance with the changed development approval package attached hereto and marked "A".

THIS ORDER IS TO TAKE EFFECT on 17 April 2009 provided (and only if) there is filed in the meantime a solicitor's affidavit deposing to the posting to each of the ten co-respondents by election in Appeal 346 of 2008 under cover of a letter advising the Court's approval of changed development conditions, copies of paragraph 4 of Mr Wright's affidavit filed 6 March 2009, paragraph 3 of his affidavit filed on 24 March 2009, the "before" plan tendered today as Exhibit 1 and the "after" plan tendered as Exhibit 2.  Liberty to apply." 

The development approval granted by the Court on the 18th of September 2008 is found in appeal 346 of 2008.

On the date of the Court's order I was required to consider changes to the development application in light of section 4.1.52(2)(b) of the Integrated Planning Act 1997 as to whether or not changes to the development proposal as publicly notified represented minor change. I was satisfied that they did represent only minor change. The co-respondents by election received rather late notice of the precise form which the changes took, although the Court proceeded on the basis that they were intended to reflect the outcome of mediation involving the co-respondents.

...

HIS HONOUR:  The co-respondents by election ceased any active involvement in the old appeal following the understandings which had been reached.  There is before the Court today as an exhibit to an affidavit of Ms Rayment prepared in the old appeal a communication from the first co-respondents by election indicating some dissatisfaction with the way things were handled immediately leading up to the order of the 18th of September 2009 but indicating satisfaction with the course the Court took on that day.

As so often happens, further consideration by the applicant developer who had been the appellant in the 2008 appeal and the Council has led to what are regarded as better ideas for the development.  The Council is wholly supportive of the current application which is filed not in the appeal but as a separate originating application in which the former co-respondents by election have not been joined.  That may mean their entitlement to be heard is now less clear than if the present order was to be made in the old appeal.

Mr Connor, in support of the application, has referred the Court to some decisions in the Court which bear on who ought to be served. 

There is a decision of mine, Office Park Developments - Lennon Pty Ltd v. Brisbane City Council [2006] QPEC 077 and one of Judge Newton, Australian Conservation Foundation Gold Coast Inc v. Gold Coast City Council [2001] QPELR 96 which alone considered rule 8(1) of the Planning and Environment Court Rules 1999; it supports the view that anyone who ought to be joined whose rights or liabilities - vis-à-vis any party to the proceeding in respect of the subject matter of it - would be directly affected by an order that might be made.
It's somewhat difficult to see that formula applying to the present situation which concerns what a developer can do with its own land.  It's easy enough to understand that members of the public, in particular those who've taken the trouble to make submissions about a development application, might have "rights" to be heard in relation to it.  It's not entirely clear, where rights are regarded as the obverse of liabilities in some way, that rights are affected within the meaning of the rules which Judge Newton considered - in the case before him anyone who might conceivably have been joined had been served.  Mr Connor suggested as an example of a person whose "rights" would be directly affected someone entitled to use an easement over a site required by a development approval under a condition proposed to be cancelled as changed.

I'm unaware of anything in the Integrated Planning Act 1997 (IPA) which would require the serving of the present application on submitters or even on those submitters who had elected to become co-respondents in the appeal whose potential standing would obviously be greater.  I considered it appropriate to determine the application on the basis of the parties before the Court but with information to be given to those who might wish to present an argument to the Court that they ought to have been heard before any order was made.

The present application is under section 3.5.33 of the IPA to the Court as the entity which decided a development condition. A pre-condition of the Court's being able to act under the section is that "no assessable development would arise from the change or cancellation" of conditions as set in the Court's order which disposed of the appeal.

The changes are numerous.  They can be found helpfully summarised in paragraphs 4 and 3 of affidavits of Mr Wright which were filed on the 6th and 24th of March this year respectively.  There's a further change which is a reduction in height of prominent signage advertising tenancies from 4.5 metres to 3.6 metres.  The relevant sign, as the affidavit indicates, is to be relocated from the corner of Goshawk Boulevard and Stringybark Road to a position in the latter road a few metres away.

The affidavit paragraphs are as follows:

"4.The changes to development, derived from a comparison of Exhibits "GGW-2" and "GGW-3" are:

(a)the location of the outdoor dining area and proposed café in the south-western corner of the site have been switched, one for the other, and the building that comprises the café has slightly increased in size;

(b)the two outdoor dining areas (one adjacent to the café and the other in a gap between Buildings A and B) have been consolidated into one directly fronting Stringybark Road.  The former outdoor dining area between Buildings A and B is now only a service thoroughfare;

(c)there are additional pedestrian accesses off Stringybark Road and Goshawk Boulevard to the proposed café;

(d)the ATM has been relocated closer to front the outdoor dining area and access way, with a level ground surface to enable equitable access per the conditions of approval;

(e)the identification pylon sign has moved from the corner of Goshawk Boulevard and Stringybark Road to the Stringybark Road frontage;

(f)the Stringybark Road façade of proposed Building A has been further articulated with windows and access and the building line has been rationalised into a single plane;

(g)the staging of the building has been removed so that it will be constructed in one stage;

(h)adjustments have been made to landscaping at the rear of the buildings to allow for maintenance access;

(i)greater separation between car parking and service vehicle parking has been provided by shifting car parks 28 and 29 away from the service area;

(j)lift, foyer, lockers and downstairs amenities in Building B have been deleted.  Amenities have been replaced upstairs;

(k)the service area has been amended by shifting Building B north, removing the second storey from over the service area, making the refuse area accessible, allowing for front lift clearance for waste collection per the conditions of approval;

(l)reference to signage at vehicle access from Goshawk Boulevard has been removed per the conditions of approval;

(m)the steps to Stringybark Road entrance have been removed and replaced with a pedestrian ramp to provide equitable access per the conditions of the approval;

(n)fencing to the rear of the development to adjoining development has been indicated as 2 metre high acoustic fencing per conditions of the approval;

(o)an additional on-street car parking space to the southern side of Goshawk Boulevard has been provided per the conditions of the approval."

and

"3.  The additional changes are:

(a)the rear building setback of Proposed Building A has been amended to provide a minimum 1 metre landscaping strip and, where provided for, a 1 metre path for rear tenancy access;

(b)the rear building setback of Proposed Building A has been reduced from 1.5 metres to 1 metre (no path) in one area and has increased from 1.5 metres to 2 metres (with path) in another area;

(c)a shower has been added to the disabled bathroom in Proposed Building A;

(d)the access to Proposed Building A from Stringybark Road has been removed;

(e)gates have been provided to restrict access to the rear landscape and service access areas of Proposed Buildings A and B to assuage safety concerns and security concerns;

(f)the footpath along the on street angle car parks on the southern side of Goshawk Boulevard is continued past space 10."

The process of devising the most appropriate form of development and conditions has involved a good deal of exchanging of ideas between the developer and the Council, which accounts for its somewhat episodic character.

The question whether there is assessable development or not, Mr Connor suggests, might have been rendered more difficult by the decision in Hayday Proprietary Limited v Brisbane City Council [2006] QPELR 40.

Statements in the reasons supporting that decision if applied literally and strictly might deprive section 3.5.33 of much of its utility. There's no suggestion at all that Hayday was incorrectly decided. The changes in conditions which are sought now are similar in nature to, although less in extent in my assessment than the changes I had to consider on the 18th of September last year.

It's a vexed question whether approved developments as such or "conditions" are being changed. From some viewpoints, everything describing a permitted development is a condition. There was occasion to examine whether section 3.5.24 or section 3.5.33 of the IPA applied in Parmac Properties Pty Ltd v Redland City Council [2008] QPEC 120. There is only limited guidance available in decisions of this or other courts in relation to whether "assessable development" for purposes of section 3.5.33 is proposed by a change being sought.

Wilson DCJ had something to say about it in Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2002] QPEC 42 in paragraphs 1, 10 and 20.

Early this week in Cemex v. Bundaberg Regional Council 825 of 2009 - 1st of April 2009 (see [2009] QPEC 020) - it was determined that an extension of the currency period for a quarrying operation from 15 years to 20 involved a change of condition and not "assessable development". There's obviously scope for changes to be identified as being to "conditions" so that they could be dealt with under section 3.5.33 rather than in other ways such as under section 3.5.24 or by the costly and inconvenient means of an entirely new development application.

I agree with Mr Connor that a practical, "purposive" approach ought to be taken to the meaning of "assessable development" in the section so as to give it the utility the legislature obviously intended it to have.  As was noted in Parmac, there may be a good deal of confusion, probably inevitable, and semantic difficulty where it becomes necessary to consider what "conditions" might be.  Here, I agree with Mr Connor that where the significance of changes to conditions is required to be considered what one ought to look at is the import of the conditions now proposed as against the import of the conditions previously set. 

There might be other contexts as in Law v Beaudesert Shire Council [2000] QPEC 90 where the comparison to be made is between what is now proposed and a greenfields site.

The noticeable change to the form of the development which results from today's order is that at the corner of Stringybark Road and Goshawk Boulevard there will no longer be a covered dining area where patrons can enjoy food and drinks purchased from an adjoining café.  The café building itself will be there.  The covered outdoor dining area will be immediately to the north of it on Stringybark Road. 
That change, as it happens, will better meet the planning intentions of the Council. Those can be found set out at some length in paragraphs 21 to 24 of Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2007] QPEC 117.

The planning arrangements envisage an active street front.  Indeed as F set out in paragraph 24 indicates - the master planning which resulted from the cooperation of the developer and Council envisages as follows:  "Uses in the area south of the creek should comprise a range of dwelling types and densities, business uses and local centre facilities meeting the day to day convenience shopping needs of residents.  This local (convenience) centre is intended to establish and mature with a focus to a new connecting street passing through the precinct to link Crosby Hill Road with Dixon Road as shown in figure 3.3.3.31. 

"Business uses that are compatible with housing could also be located within the local centre.  These may include research facilities, certain types of service and light manufacturing activities, offices, studios, tourist and conference accommodation provided they are not of the scale which would compete with the university."

I have taken the trouble to set out that provision because prominent among the matters which the court is required to consider under section 3.5.33(7) is the submissions "to the extent relevant" and those submissions to a considerable degree take issue with the established planning arrangements for the area, which are enshrined in the planning scheme. It earmarks the site for a local convenience centre.

Much was said by the submitters about the lack of need for shops, about the willingness of submitters to travel the two kilometres or so to other facilities.  Genuine as submissions along those lines undoubtedly area, they have little relevance for present purposes. 

There is no point in the court spending its time dealing with assertions that the area ought to be turned over to parks where children can play and the like or that traffic considerations ought to stand in the way of the development.  The unwelcome intrusion of parking which will now be on both sides of Goshawk Boulevard, given the provision of parking for the convenience centre on the verge of a proposed park across the road, may be unwelcome to those who thought they were coming to a "boutique" residential area with much natural vegetation. 

Many of the submissions were "letting off steam" about "developers" in general, also in respect of disappointment that blandishments which they attributed to those selling land in the development at the outset were proffering have been belied by subsequent history.  Planning simply proceeded too far for considerations of this kind to give the court pause. 

A considerable amount of time has been taken today, perhaps to the annoyance of Mr Connor and Ms van Alphen, representing the Council, while I perused the 40 or so submissions. The court has an onerous responsibility under section 3.5.33(7) which I discharge on this occasion in the presence of the parties' legal representatives. The end result is that it has not produced anything of concern in the sense of anything that the court can do something about.

The relocation of the café building as indicated will tend to promote the idea of an active street front.  It will also, I think, locate the outdoor dining area more favourably because it will be at some distance from the roundabout at the intersection to which seating and tables would otherwise have been immediately adjacent. 

Fortunately, the Council's proposal to use Goshawk Boulevard as a link to more easterly parts of the road system, which would have generated large amounts of traffic, is no longer pursued.  The submitters who raised concerns about traffic will no doubt be relieved about that. 

The café building itself will increase in size from 40 square metres to 62 square metres.  That will have the effect of placing a larger building on the street frontage than had been envisaged on the 18th of September last year.  But it seems to me that's something the planning arrangements encourage.  There are reductions in size of the other buildings.  In aggregate, so far as GFA is concerned, for the total site there is a reduction of two square metres.  The footprint of the buildings other than the café will increase but only slightly and at the back of the site away from the street frontages.  The extent of the upper level of proposed building B is considerably reduced.  A lift will no longer be provided to access the upper level. 

Those changes have led to some redesign of the paved areas to the rear and sides of the proposed buildings.  The changes include gates to discourage the general public from having access to areas which really only need to be accessed by staff for maintenance and like purposes. 

At the northern boundary proposed building A for about half of its length will now be set back only one metre from the boundary, where there is to be a two metre high acoustic fence, rather than 1.5 metres back.  In other parts the
setback is increased to two metres.  The one metre section will no longer be trafficable although it could be available for access by authorised people for maintenance purposes and the like. 

The court was concerned with the reduction of setback from the point of view of the amenity of the adjacent block of land.  Enquiries made by Mr Connor elicited instructions that what is there is a two storey apartment block set back further but with an entirely blank wall facing the site.  The apartment building is taller than proposed building A.  On analysis, that aspect of the application does not cause me concern. 

I have considered in some detail - I do not think I need to go any further in these reasons into - the other changes that Mr Wright refers to (and the additional one of reduction in height of the sign).  There is abandonment of the idea of a second outdoor eating area at the back of the site which it was apparently once thought might serve a bakery tenancy.  There has been some compensating increase in the size of the outdoor eating area on Stringybark Road. 

The provision of an additional tenth parking space on the southern side of Goshawk Boulevard across from the development site and provision of a footpath for pedestrians skirting the car parks there, thus avoiding conflicts with pedestrian traffic, seem to me essentially matters for the Council which will own the land. 

A number of conditions have to be changed because staging of the development is no longer proposed.  Proposed building A,  proposed building B and the café will all now, it seems, go up together, so the conditions referring to staging necessarily require changing. 

There are changes in landscaping arrangements which on the eastern boundary of the site may involve some reduction of landscaping, the effect of which is only going to be noticed on the site behind the two metre high acoustic fences and behind the buildings. 

I have no difficulty in identifying all the changes as improvements, assuming that the enlargement of the café building will enable it to better serve the local clientele.  It will now provide the street interface which the planning arrangements desire.  There will no longer be direct access to Stringybark Road from proposed building A.  That access will be gained from beyond the Stringybark Road entrance to the site. 

The relocation of an automatic teller machine slightly closer to that entrance seems to be not a matter of concern at all but its inclusion in the detail of the application bespeaks the thoroughness with which it has been approached and probably necessarily so, because strictly it does represent change in the plans. 

Taking the purposive, practical approach to what is "assessable development" for the purposes of section 3.5.33, I comfortably reach the view that in substance nothing is really changing - so that there would be something unacceptably artificial about identifying assessable development here with the consequence that this useful section would not be available.

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