Ispt Pty Ltd as Trustee v Brisbane City Council

[2011] QPEC 31

[2011] QPEC 31

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3541 of 2010

ISPT PTY LTD AS TRUSTEE	Applicant
and
BRISBANE CITY COUNCIL & OTHERS	Respondent

BRISBANE

..DATE 02/03/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 367, s 368, s 369, s 376

"Changes to approval of a large redevelopment on the Queen Street Mall constituted by a court order in an earlier submitter appeal adjudged "permissible change" - circumstances in which service of the developer's application on submitters was not considered necessary
HIS HONOUR:  There is before the court a request to change a

development approval under section 369 of the Sustainable

Planning Act 2009.

The court is the responsible entity because the relevant

approval is constituted by Judge Everson's order in appeal

number 2112 of 2009 which was commenced by Jimmy's On The Mall

Pty Ltd.  The hearing did not proceed to a conclusion,

his Honour's order being made by consent of the parties. 

Another submitter appeal was withdrawn.  His Honour's judgment

is dated the 6th of April 2010.

The Council has supported the changes to the proposal as

approved by the court's order in a response notice of the kind

referred to in section 368. The other respondents in the

current originating application are the Chief Executives of

the Department of Transport and Main Roads, Department of

Environment and Resource Management and the Department of

Infrastructure and Planning.  The first and third of them

appear today, effectively abiding the court's determination.

Although the proposal is a huge one, affecting a large part of

the eastern side of the Queen Street Mall between

Albert Street and Edward Street, which will have a significant

effect on the appearance and, perhaps, character of that part

of the city, the matters that concern the court today are

relatively unexciting.  They represent improvements to the

proposal which the developer has embraced.  It's unsurprising

that in any development, let alone one of the dimensions of

this one, ideas for improvements might emerge.

I've indicated who the respondents in the application are.

They don't include Jimmy's On The Mall or any of the other

submitters.  An affidavit of a town planner, Mr Reynolds,

places the submissions before the court.  I've taken occasion

to read them, and with a good deal of interest, particularly

the ones that incorporate a lot of historical information

about the Regent site and what has existed and happened there

over the decades.

Overwhelmingly the submitters were concerned to save the

Regent.  Other issues were raised as well, including the

introduction of more than 500 parking places in the city,

which was said to be contrary to modern ideas of limiting parking facilities in the CBD.  There was some reference to traffic flows in the city and the appropriateness of carpark entrances and exists.

Unsurprisingly, another feature of the submissions is concerns

expressed about the disruption that would occur to the trading

of businesses in and around the mall.  Beyond the direct

economic cost were nuisance-type concerns related to noise,

dust and the like.  Surprisingly, four tenants are continuing

to trade through the construction, being a bowling alley, a

gymnasium and two restaurants.

Particular concerns exist, and have all along, that

practicable means of access and appropriate protection of

amenity prevail during the construction period which, in one

aspect of the changes sought, bodes to be prolonged.  The

"relevant period" (once called "currency period") being sought

to be extended is part of the changes which see the proposal

separated out into stages.  The court understands that that

change is, in part, a reaction to the global financial crisis.

In an application of the present kind questions will always

arise whether the submitters, in particular Jimmy's On The

Mall Pty Ltd, which was actively involved in the making of

Judge Everson's order, ought to have been parties. Cf Habitat Development Group Pty Ltd v Maroochy Shire Council [2008] QPEC 70; Office Park Developments Lennon Pty Ltd v Brisbane City Council [2006] QPEC 77. I consider there's no necessity for that to occur. Having considered the submissions, including that of Jimmy's on the Mall, I'm satisfied that nothing about the changes the court is asked to approve will in any relevant way impinge on their situation.

The battle to save the Regent has been lost, likewise.  By the

court's order the proposal has won the approval it needs.  The

effects on parking and traffic in the city and the like are in

a sense fixed and are certainly not affected by any of the

changes under consideration now.

In relation to the sitting tenants referred to, the affidavits

of Mr King and Mr Brown indicate how the development is to be

managed over the years, and the proper concerns of those

tenants are addressed.  As it happens, no change is necessary

or appropriate to the plans for the proposal in this regard.

The changes can be summarised into five key components in a

list which is found in various places, including one of

Mr Reynolds' affidavits.

The first is separation of the development approval into five

stages:  Stage 1 - Wintergarden; Stage 2 - Wintergarden;

Stage 3 - demolition of the Regent cinema block; Stage 4 - the

Regent podium; Stage 5 - the Regent Tower.  Staging of the

development approval, the request documents indicate, will

ensure that "key deliverables are provided in the shortest

possible timeframe".  The staging will not change the proposal

in any way.

Of potential significance at first blush is the next key

component of the change which is a 1,543 m² increase of gross

floor area associated with the Regent Tower.

The development approval provides for 114,250 m² of

gross floor area above maximum podium height.  The change to

the development approval proposes 115,793 m² of

gross floor area above maximum podium height.  Although in

percentage term that increase of GFA is very modest, in

absolute terms it could potentially be significant if, for

example, the increase in GFA were represented by a new

protruding viewing platform at a high level in the tower.

That increase in gross floor area is achieved in an unusual

way.  It won't increase the footprint of the building at

ground level or at any higher level.  As paragraph 10 of

Mr Reynolds' first affidavit indicates, it's achieved by

rationalisation and relocation of approved plant areas within

the tower, creating the opportunity to introduce 2,193 m² of

additional GFA above maximum podium height.  In particular there are changes at level 22 which was a plant level, and there can now be a new level 40 office floor.

My understanding of the situation is that effectively the

additional usable office space which counts as GFA is obtained

by what's done in relation to plant, et cetera, and maybe

services, so that areas in an unchanged building which

formerly were not included in the calculation of GFA now will

be.

The change strikes me as one that's commendable in the

interests of efficiency and making maximum use of resources.

The third component of change is what's presented as improved

vehicular ramps that provide more usable floor area within the

Regent podium, reduced carparking numbers associated with the

Hilton Hotel and alternative shared basement servicing

arrangements for another building at 155-161 Queen Street

which the applicant also owns that became well known as the

HMV building.

The access ramps change from what was described as a reverse

question mark configuration to a double helix arrangement,

which is more efficient and less demanding of space.  There's

to be no increase in the number of parking spaces allowed, but

they would be provided in a somewhat more roomy environment.

The fourth change, or set of changes, is described as "changes

to the approved design of the Regent Wintergarden and Hilton

Hotel as a result of items 1 through 3 design development

since the development approval having taken effect and to

provide greater continuity with separate development approvals

having previously and currently being implemented over parts

of the subject site."

There is before the court a very detailed explanation of such

matters in a document exhibited by Mr Reynolds entitled

"Matrix:  Change to Development Approval", and the court also

has available the approved plans and what are now the proposal

plan so that those changes can be understood and assessed.  

From almost any point of view they can be seen as minor.

The fifth change is summarised as changes to approval

conditions and approved drawings/documents as a consequence of

items 1 through 4.

The court is asked today to indicate its acceptance of the

changes as permissible change within the definition in section

367 of the SPA.  Usually the relevant requirement is

that the change to the approval would not result in a

substantially different development.  The changes here

certainly would not, and nor does any concern arise from the

point of view of the following paragraphs of section 367(1), which inquire whether the application would require referral to additional concurrence agencies or require impact assessment where none was required before.

In respect of s 367(1)(c), having read the submissions

carefully, the court comfortably reaches the view that none of the changes would be likely to cause any person to make a properly made submission objecting to the change if the circumstances allowed.  There's no prohibited development in issue here, as referred to in (d).

Judicial recognition has been given to the guidelines issued

by the Department in respect of assessing whether change is

permissible change.  There's really no occasion to resort to

the guidelines here.  Speaking generally, what they focus on

with a view to excluding or controlling them are changes which

make a proposal larger or bulkier or one with more severe

impacts or heavier demands on services and the like.  That's

not going to happen here.

The court asked Mr Gore for an assurance, which was given,

that none of the changes involves depriving Jimmy's On The

Mall of anything that they might have gained in negotiations

that led to consent being given to the order of the court,

which the court now considers ought to be varied. 

Mr Gore informs the court that following what's perhaps becoming to be a practice, steps are being taken by or on behalf of his client to prepare a suitable written notice which the court can endorse as an appropriate notice to be given in a discharge of its unusual responsibility under section 376.

It's rather odd to find an obligation of that kind placed by

statute on the court.  One would think it properly should fall

on the developer who gains the advantage.  That, in my view,

makes it appropriate that the developer's assistance ought to

be called on to aid the performance of what can be quite a

sizable task for a proposal as large as this one.

We're awaiting the formulation of a suitable order for the

court to make which the parties will now proceed to devise,

having got the green light to do so from the determination

now.

-----