Karnew Properties Pty Ltd v Gold Coast City Council
[2009] QPEC 93
•9 October 2009
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Karnew Properties Pty Ltd v Gold Coast City Council & Ors [2009] QPEC 93
PARTIES:
KARNEW PROPERTIES PTY LTD
ACN 106 849 521
(Appellant)
v
GOLD COAST CITY COUNCIL(First Respondent)
And
RAYJON PROPERTIES PTY LTD ACN 010 249 788
(First Co-Respondent by Election)
And
JEN RETAIL PROPERTIES LIMITED
ARBN 051 837 266
(Second Co-Respondent by Election)
And
SCHOMBURGK PLANNING PTY LTD
ACN 111 726 866 AND STOCKLAND TRUST
MANAGEMENT LIMITED ACN 001 900 741
(Third Co-Respondent by Election)
And
QIC ROBINA PTY LTD ACN 080 215 354
(Fourth Co-Respondent by Election)
FILE NO/S:
D 533/07
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court Southport
DELIVERED ON:
9 October 2009
DELIVERED AT:
Southport
HEARING DATE:
5 October 2009
JUDGE:
Newton DCJ
ORDER:
Order that the changes to the application on which the decision being appealed was made are only minor for the purposes of section 4.1.52(2)(b) of the Integrated Planning Act 1997.
Declare that there has been compliance with the requirements of Chapter 3, Part 4, Division 2 of the Integrated Planning Act 1997 with respect to public notification of the development application.
LEGISLATION:
Integrated Planning Act 1997 s 4.1.52(2)(b)
CASES:
Lascorp Development Group v Burnett Shire Council & anor (2007) QPEC 024 referred to.
CATCHWORDS:
APPLICATION WITHIN APPEAL – WHETHER CHANGE TO APPLICATION IS A MINOR CHANGE – section 4.1.52(2)(b) Integrated Planning Act 1997
COUNSEL:
Mr C Hughes SC and Mr M Williamson for the appellant.
Mr S Ure for the respondent.
Mr J Houston for the first and second co-respondents by election.
Ms N Leaney (Solicitor) for the third co-respondent by election.
SOLICITORS:
IPA Law for the appellant
King & Company Solicitors for the respondent
Hickey Lawyers for the first and second co-respondents by election
Clayton Utz for the third co-respondent by election
The property the subject of this application is situated at 1 Santa Maria Court Burleigh Waters[1] and is presently developed with an existing retail centre known as the “Burleigh Homespace” Centre. It comprises a mixture of large and small retail showrooms together with shops and a take-away food outlet.
[1] The land is more particularly described as Lot 3 on SP163203.
The appellant (“Karnew”) made a development application to the respondent Council in January 2007 seeking a material change of use for a shop (supermarket). The development application was assessed by Council officers who recommended the approval of the application subject to reasonable and relevant conditions. Notwithstanding that recommendation, the respondent Council resolved to refuse the development application. That decision was communicated by way of a Decision Notice dated 5 October 2007.
On 30 October 2007 Karnew filed a notice of appeal in this Court against the respondent’s refusal.
Karnew now proposes to amend its development application and accordingly requires an order of this Court under section 4.1.52(2)(b) of the Integrated Planning Act 1997 (“IPA”)[2] that the proposed changes are minor changes and that the appeal be heard and determined on the basis of the amended application. The only parties to oppose the application are the first and second co-respondents by election, Rayjon Properties Pty Ltd (“Rayjon”) and Jen Retail Properties Limited (“Jen”).
[2] 4.1.52 Appeal by way of hearing anew
Karnew gave notice to Rayjon and Jen by letter dated 23 February 2009[3] that it proposed to amend the development application. Although the proposed changes to the plans of development include eight alterations, only two remain in issue for the purposes of this application. They are
(i) the proposed shop previously was intended to occupy tenancies 1 to 6 and part of tenancies 7 and 8, where as the amended application has the proposed shop occupying tenancies 7 to 9 and part of tenancy 10. This change would locate the supermarket in a more central location relative to existing at-grade carparking on the land; and
(ii) the gross floor area of the proposed shop, calculated for carparking purposes, has increased by 65m².
[3] Affidavit of Denis Eric Brown filed 11 June 2009 paragraph 16.
Counsel for Rayjon and Jen submits that what is being sought by the amendments is the relocation of the shop (supermarket) to an entirely new location, which did not form part of the original application. The area of land the subject of the application was a salient feature of the application and the removal of the use to an entirely different area is not a small or inessential change, and cannot be said to be a change which is minor. Furthermore, it is contended that the proposed change results in significant alterations to the layout resulting in a more conventional rectangular shape of the shop and the apparent deletion of five internal tenancies from the proposed layout. These are salient features of the proposal which, it is submitted cannot be described as small or inessential changes. Finally, it is submitted that the proposed increase in the gross floor area of 65m² cannot be considered to be a minor change because such increase would not accord with the definition of the term “minor change in the scale and intensity of an existing use” within the respondent Council’s Planning Scheme, version 1.2.[4]
[4] Affidavit of David George Ransom filed 5 August 2009 paragraphs 8-13.
In support of these submissions reliance is placed upon an affidavit of Mr David Ransom, Town Planning Consultant, which was filed on 5 August 2009. Mr Ransom notes that the original proposal was for a proposed shop (supermarket) of an unusual shape and size said to be unlike any other supermarket layout on the Gold Coast. The original proposal included an angled western and southern façade, reflecting the existing perimeter of the Burleigh Homespace development. The vast majority of supermarket tenancies are rectangular in shape, as this shape maximises internal design efficiencies associated with aisle widths, aisle spacing, checkout locations and back of house facilities. Mr Ransom considers the internal layout of the development under the original proposal as quite inefficient when compared to a conventional rectangular layout. The amended proposal is likely to result in more shelf space and a more efficient checkout arrangement, possibly including additional checkouts. Mr Ransom postulates that, while the amended proposal has a gross floor area for carparking purposes 65m² greater than the original proposal, it is likely that the amended proposal will operate in a significantly more intensive manner than this figure suggests. However, he concedes that without seeing a plan of the new internal floor space he is unable to comment on the exact extent of such impacts.[5]
[5] Ibid paragraph 18.
Mr Ransom further notes that the original proposal included five internal tenancies along the northern internal wall of the premises. These are identified on the plans as being for a “bakery”, “deli-meat”, “gour-deli”, “fish” and “Lenards”. He considers it to be an unconventional practice to have internal subtenancies of this type within a supermarket, as typically most of these functions occur from a single delicatessen counter operated by the supermarket proprietor. The original proposal is said to be reflective of an internal sub-letting arrangement where separate business owners sell their produce from within the nominated tenancies by renting space from the primary tenant. Such an arrangement is seen by Mr Ransom as being an inefficient use of internal floorspace compared to an arrangement where common servicing and back of house facilities would be provided by a central retailer.[6] However, as the amended proposal does not show any internal layout for the proposed supermarket it is not possible for Mr Ransom to comment on the potential changes in intensity of the amended development although it would be expected that greater length of shelf space, display space and checkout space would be provided in the amended proposal, even if the gross floor area of the development was unchanged.[7]
[6] Ibid paragraphs 19 and 20.
[7] Ibid paragraph 21.
With respect to the proposed relocation of the subject premises Mr Ransom considers that the revised plans now place a third anchor tenant within the development in the center of the development in a manner which will exacerbate the decline of the “Homemakers” functions on the site, and hasten the conversion of the “Homemakers” tenancies into more conventional retail activities thus diminishing the pulling power of the development as a specialist centre catering to homemakers. This will create pressure for more mainstream retailing activities which will cause the development to have a greater intensity than was envisaged under the original application.[8]
[8] Ibid paragraphs 28, 29 and 30.
Senior Counsel for Karnew submits that it is impermissible to use the respondent’s Planning Scheme, which is subordinate legislation, to construe the meaning of section 4.1.52(2)(b) of IPA which is the parent Act. Furthermore the definition in the Planning Scheme to which Mr Ransom points is a “use” definition which assists in determining whether proposed changes to the scale and intensity of an existing use trigger the need for a fresh development application. The definition has no relevance to the circumstances applying here, that is whether proposed changes to a development application are minor for the purpose of section 4.1.52(2)(b) of IPA. These submissions, in my view, should be accepted.
As to whether the change in the location of the proposed shop (supermarket) will increase the efficiency and intensity of the tenancy in comparison to what had been originally proposed, it is not at this stage possible, given the absence of detail in the amended plans, to express a concluded view. Mr Ransom acknowledges this to be so.[9] The amended proposal is likely to include a similar number of outlets for poultry, deli-meats, fish, gour-deli and bakery as did the original proposal. It was no more than an assumption on the part of Mr Ransom that these outlets were to be operated by retailers other than the operator of the supermarket itself. Furthermore, the issue as to whether the relocation of the proposed shop within the centre will exacerbate the decline of the homemaking focus of the site, is not one that falls for determination on the hearing of this application. That issue became a live issue with the original application. The new proposal does not alter that situation.
[9] Ibid paragraph 21.
Support for the contentions of the appellant is found in the affidavit of Mr Denis Brown, Town Planner filed on 11 June 2009. It is the view of Mr Brown that the proposed changes to be made to the development application are not materially different from the development application which was refused by the respondent. This is particularly so according to Mr Brown, considering that the overall gross floor area of the amended proposal has not changed from that as publicly advertised and remains at 2500m² and that the gross floor area for the purpose of calculating carparking requirements has increased by only 65m².[10] Mr Brown is also of the view that the relocation of the proposed supermarket, in part, to adjoining tenancies does not result in a materially different proposal particularly having regard to the fact that the proposed use is one of many uses within the Burleigh Homespace centre.[11]
[10] Affidavit of Denis Eric Brown filed 11 June 2009 paragraph 19.
[11] Ibid paragraph 20.
Notwithstanding the views expressed by Mr Ransom I accept that the proposed changes to the development application do not alter the fundamental nature of the development proposal, nor do they affect the nature, size and purpose of the intended use. Furthermore, they are unlikely to raise any new town planning or amenities issues or be likely to attract an adverse submission that had not been provoked by the proposal in the form as publicly advertised. The proposed changes would not require referral to an additional concurrence agency if the development application was remade including the changes under consideration.
In determining whether proposed changes are minor within the meaning of s 4.1.52(2)(b) of IPA it may be useful in some cases to distinguish between the salient and incidental features of the original proposal[12] although it is important not to substitute a different test from that contained in the legislation. Such an exercise in the present case is unnecessary. The proposed changes, in the context of this hearing, may be fairly said to be no more than minor in terms of the degree or scale of the original proposal and do not result in a materially different proposal from that originally put forward. The change in location of the supermarket cannot be said, in my view, to result in a change to the type of supermarket contemplated and, on the material presently available it is simply not possible to conclude that the changes will materially affect the intensity of the supermarket’s operation.
[12] See Lascorp Development Group v Burnett Shire Council & anor (2007) QPEC 024 per McLauchlan QC DCJ
I therefore conclude that the changes to the application on which the decision being appealed was made are only minor for the purposes of section 4.1.52(2)(b) of IPA. The appeal is to be heard and determined on the basis of the amended plans forming part of the affidavit of Mr Clifford Wirz filed on 3 February 2009 exhibit CNW-1, pp342-345 inclusive. I declare that there has been compliance with the requirements of Chapter 3, Part 4, Division 2 of IPA with respect to public notification of the development application.
(1) An appeal is by way of hearing anew.
(2) However, if the appellant is the applicant or a submitter for a
development application, or is a person who has applied for
approval of a proposed master plan, the court—
(a) must decide the appeal based on the laws and policies
applying when the application was made, but may give
weight to any new laws and policies the court considers
appropriate; and
(b) must not consider a change to the application on which
the decision being appealed was made unless the change is only a minor change.
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