Harvey Property Consultants Pty Ltd v Toowoomba Regional Council

[2011] QPEC 76

[2011] QPEC 76

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3144 of 2010

HARVEY PROPERTY CONSULTANTS PTY LTD (ACN 120 410 282)	Appellant
and
TOOWOOMBA REGIONAL COUNCIL	Respondent
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS	Co-Respondent

BRISBANE

..DATE 01/06/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350

Plans for a McDonald's restaurant changed to relocate accesses etc., to allay concerns of Department of Transport and Main Roads which had directed the Council to reject the appellant's development proposal - court willing to make consent order proposed, allowing the appeal, on the basis changes were "minor change"

HIS HONOUR:  The court makes an order in terms of the initialled draft, which allows this developer appeal against the rejection of its application for a McDonald's restaurant on a site in Toowoomba bounded by Davis Street, which is the Warrego Highway, Anzac Avenue, which is the Gore Highway, Glenvale Road and Karrool Street.  The Council was required by the Department of Transport and Main Roads to reject the application on account of its concerns about traffic issues.  It has the management of the first two roads mentioned.

Its concerns are allayed by changes made to the development proposal, which was an impact assessable one. Those changes are summarised by Mr Rytenskild in his affidavit and represented in drawing DAA001 Edition 3 at page 17 of the affidavit which may be compared with the original Edition A of the same drawing at page 3. The changes are comfortably within the parameters established by Section 350 of the Sustainable Planning Act 2009.

The court expressed interest in whether submitters' views, so far as they can be gauged, might have been affected by the changes. That seemed unlikely in the extreme so that the court did not trouble the parties to provide information about the content of the submissions. However, at the end of the hearing, Mr Lyons for the appellant was able to produce Exhibit 3, a letter enclosing copies of the submissions received, which do indeed raise relevant traffic issues that are now substantially resolved by the changes. One of the submissions expressed concern that “hooning” up and down Glenvale Road would increase if a “‘meeting place’ for hoons” were to be located in the street. Section 350 does not (as predecessors did) require consideration of submitters or potential submitters, but there may well be situations in which changes that effectively deprive them of a say in respect of particular changes give rise to a proper concern.

There are some minor changes to the internal layout of the proposal and the design of the extensive car parking associated with it. 

The changes which attend to the Department's concerns are the relocation of two vehicle accesses and one pedestrian access to place them at a greater remove from nearby intersections with the State-controlled roads.  In respect of the remaining access, which is located further west along Glenvale Road near Karrool Street, the only changes are by way of provision of additional detail in respect of that particular access.  A number of further “changes” or likewise simply by way of providing extra detail.

Provision is now made in the plan to accommodate the possible partial closing of access from Glenvale Road to the Gore Highway.  Edition C illustrates a scenario in which it's possible to move into Glenvale Road from the highway by a left-hand turn, but not possible to access the highway from Glenvale Road.  There is reduction by three quarters of a metre in width of a verge, which is attributable to the making available of additional space for potential future road works.  Similar accommodations is now offered in the proposal for the improvement of the Karrool Street/Davis Street intersection.

There's no reason why the court ought not allow the appeal to proceed on the basis of the changed plans and make the order in terms of the initialled draft which the parties joined in presenting.

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