Hydrox Nominees Pty Ltd v Brisbane City Council

[2010] QPEC 64

[2010] QPEC 64

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1645 of 2010

HYDROX NOMINEES PTY LTD (ACN 139 262 123)	Applicant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 30/07/2010

ORDER

CATCHWORDS
Sustainable Planning Act 2009, s 367
Changes to development approval constituted by court order held permissible change - extent to which submissions in earlier impact assessment process were relevant considered.

HIS HONOUR:  A year ago, less a day, the Court disposed of an adverse submitter appeal 583 of 2008 by allowing it in part to approve a development for a material change of use for a shop (bulky goods), restaurant and indoor sport and recreation (gym) and a preliminary approval to carry out building work.

The proposal relates to land at 896 and 910 Manly Road and 261 New Cleveland Road, Tingalpa on a large site which is to be developed as a Bunnings type outlet, although to facilitate trading by a commercial rival of Bunnings.

The appellant in 583 of 2008 was a commercial rival concerned, as Mr Connor put it, not to have a rival supermarket trading in what it said was a relevant trade area.  It now seems to be freed of that concern as is the operator of a rival gym, for the moment, freed of its expressed concern, given that it's not presently proposed to include a gymnasium in the development.

Although the applicant, Hydrox Nominees Pty Ltd, which represents the intended operator, had a considerable input at the time of the appeal in which the party was Parmac Investments Pty Ltd, it now wishes, in the interests of better operation of this proposal that the Court should endorse some changes to the development approval.

Under section 367 of the Sustainable Planning Act 2009 a development approval may be changed by the Court provided the change is "permissible change." The first requirement is that the resulting development not be substantially different from that approved. Mr Lane, in paragraph six of his affidavit summarises the changes that have been made as follows:

(a)the GFA of the proposal has increased marginally by 7m², from 12,291m² to 12,298m² and has come about from a slight increase to the mezzanine area.  The mezzanine area primarily accommodates the administration offices and staff dining area;

(b)there has been some reallocation of GFA between the nursery and the covered shop area.  The nursery has been reduced in size from 2,536m² to 1,504m², which partly accounts for the covered shop increasing from 6,460m² to 7,986m² (some of the increase is due to the increase in the mezzanine area described above);

(c)previously it was proposed that the nursery area would have shade sails over it, but it is now proposed that there will be more roof area over the nursery, with some areas of shade sails still retained;

(d)the building and construction material supply area (formerly described as the “trade yard”) has decreased from 2,313m² to 1,502m². In addition, the proposed vehicle circulation path in the building and construction material supply area has been altered from an entry at the front and exit to the rear, to an entry and exit at the front, which is achieved by customers turning their vehicles around inside of the building. Notwithstanding the change in name and vehicle circulation path, there is no material difference in how the building and construction material supply area is intended (to) operate in comparison to the formerly described “trade yard”;

(e)the location of the access to the building and construction material supply area has also moved slightly closer to Manly Road;

(f)the proposed ‘Alucobond main entry feature’ has marginally increased the overall maximum height of one part of the building from RL 18.35m AHD to RL 19.20m AHD.  This feature was included to highlight the entry of the building;

(g)the building façade has been altered to provide a more active glass shop front to the car park;

(h)the entry airlock, restaurant area and amenities area located at the nursery end of the front of the shop building have all been altered slightly in shape and dimension to make them more suitable to Hydrox’s needs, but they all remain in approximately the same location as they were shown on the approved plans;

(i)the amended plans incorporate a small covered BBQ/sausage sizzle facility near the building entrance;

(j)whilst there has been no change to car parking numbers, there has been some minor redesign to the car park and internal access path layout, partly to accommodate the change to the building and construction material supply area, but also as a consequence of recommendations from Hydrox’s traffic engineer, to improve safety within the site.  One of those recommendations was to modify the service road slightly to better accommodate the swept paths of 19 metre articulated vehicles that will service the development;

(k)a larger awning over the loading area has been included on the amended plans;

(l)there have been some modifications to comply with Council requirements, as noted in red on the approved plans, namely:

(i)modification of retaining wall heights;

(ii)lowering of the building FFL and building ridge line height;

(iii)modifications to the Samarinda – Honiara Streets connection.

Mr Connor has taken the Court exhaustedly through those changes by reference to the approved and the latest plans.  The development will not be substantially different.  In other contexts the increase in height of part of the façade of the proposal by almost a metre to 19.2 metres might be significant, but it is not here; it has no implications for benchmark heights and codes or the like.

The change will apparently improve the presentation of the development, among other respects by giving it marginally enhanced prominence. Neither of paragraphs (i) or (ii) of section 367(1)(b) applies. There are no additional concurrence agencies, the proposal always required impact assessment.

For the purposes of paragraph (d) there's no prohibited development involved.  That leaves for consideration the requirement in subsection (1)(c) that change would not "be likely to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed."

Mr Connor submits that that manner of expression limits the influence that putative submitters' supposed views might have by focussing on the modest changes that are proposed rather than on the new development compared with what might be on the site at the present time.

It's not necessary for the Court to express a view about that for the moment.  The submissions have been placed before the Court and I have read every one of them.  They raised serious issues one of which concerned a connection, which the Council required along the southern boundary of the site.  The Council has required that connection for obvious reasons of providing safe means of egress from the locality in any emergency.  Local residents don't see the requirement in that way at all and are fearful that a race track for antisocial drivers may be created and that crime may be attracted to the area, et cetera.

There are objections based on what was presented as disappointment that an anticipated residential future for the site has been frustrated and alike. 

Issues raised by the submissions must be taken to have received proper consideration in the processes that led up to the Court's order of the 31st of July 2009.

There is nothing in the submissions, as I read them, which expresses any concern or relevant view bearing on the changes that are presently proposed. In the circumstances the Court makes an order in terms of the initialled draft which declares the Court's satisfaction that the change made is permissible change within the meaning of section 367.

The development approval is ordered to be changed so that the approved drawings are the new ones identified in the order.  The parties limited in this originating application to the developer and the Council - are yet to finalise all the conditions for development and accordingly the order adjourns the application for a week in the expectation that after that time a full conditions package will be ready.

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