Lascorp Development Group v. Burnett Shire Council & Anor

[2007] QPEC 24

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lascorp Development Group v Burnett Shire Council & Anor [2007] QPEC 024

PARTIES:

LASCORP DEVELOPMENT GROUP (AUS) PTY LTD

ACN 064 124 349
(Appellant)
 
v

BURNETT SHIRE COUNCIL
(Respondent)

And

WA STOCKWELL PTY LTD ACN 010 095 360

(Co-Respondent)

FILE NO/S:

3355 of 2005

DIVISION:

Planning and Environment

PROCEEDING:

Application for Determination of Preliminary Point

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

28 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2007

JUDGE:

McLauchlan QC DCJ

ORDER:

Determination that change to application not “only a minor change”

CATCHWORDS:

“Minor change” section 4.1.52(2)(b) IPA

COUNSEL:

Mr Ure for the Appellant

Mr Connor for the Respondent

Mr Gibson with Mr Litster for the Co-Respondent

SOLICITORS:

Flower & Hart Solicitors for the Appellant

Connor O’Meara for the Respondent

Hopgood Ganim Lawyers for the Co-Respondent

REASONS FOR JUDGMENT

1. This appeal arises from the decision of the respondent to refuse the appellant’s development application for a development permit for a material change of use for a development described as Shop (Shopping Centre), Catering Industry (Fast Food) and Commercial Premises (Medical Centre) on land described as Lot 2 on RP 150646, Parish of Barolin, County of Cook, and situated at 60 Rifle Range Road, Bagara.  The appellant filed a notice of appeal, and subsequently entered into discussions with the council, which led to the appellant’s preparing modified plans of the proposed development.  The respondent resolved to support the proposal in its changed form on the basis that the court would need to be satisfied that the changes constitute a “minor change” within the meaning of section 4.1.52 of IPA.  That matter comes before me for determination as a preliminary point.

1. Section 4.1.52(2)(b) IPA provides in effect that the court on an appeal must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.  The court is called upon to make a value judgment to that effect if it is to entertain an appeal on the changed application. There is, necessarily some element of discretion in making a value judgment (in the sense that different minds may well come to different conclusions, more readily than in ordinary fact-finding), but it is important that principles be enunciated to guide the judge in carrying out the exercise. 

1. The various authorities on the subject have identified a number of matters which may be of relevance in characterising the change under consideration.  These include matters of degree and scale, whether or not the change would result in a materially different proposal, how the change would likely be viewed by potential objectors assumed to act rationally in the matter, and in particular whether the change would be likely to attract an additional adverse submission or submissions.  The section itself does not identify the criteria against which the judgment is to be made.  Obviously the criteria must be relevant to the question.  From a relatively narrow perspective, the question should be confined to conclusions which can be drawn from a comparison between the two proposals without reference to other considerations.  This approach is accommodated by the first two matters mentioned above.  To consider also the possibility that the changed proposal has the potential to attract further adverse submissions, and generally to consider the change from the perspective of members of the public who have rights of objection, is to broaden the scope of the inquiry, but may be justified on the footing that the characterisation of the change as minor or not requires the effect of the change to be considered in a broad sense.  However, I consider that if the change can be seen to be more than minor in terms of the degree or scale of the change, or because it would result in a materially different proposal (in a physical or operational sense) then it is not necessary to go on to consider other matters which, on one view, might be considered extraneous to the question. 

1. For the purpose of the exercise, it will be useful in some cases to distinguish between the salient and incidental features of the original proposal.  Modification of an incidental feature, even though extensive, may nevertheless amount to no more than a minor change.  Modification of a salient feature, if small or inessential, may fall into the same category.  On the other hand, modification of a salient feature which cannot reasonably be seen as small or inessential is likely to be more than a minor change.  The identification of features of the proposal as “salient’ or “incidental” should generally not prove to be difficult.

1. Although “minor’ is to be contrasted with “major”, obviously it does not follow that if a change is not major, it is therefore minor.  The definition of “minor” in the New Shorter Oxford English Dictionary includes, most relevantly, “unimportant or insignificant”.   The use of the word “only” in section 4.1.52(2)(b) might be taken as an indication that what is contemplated is something relatively unimportant.

1. The major differences between the original application and the proposal as amended are: –

(a)   the area of the supermarket has been reduced from 3150m² to 1820m²;
           (b)  the area of specialty shops has been reduced from 950m² to 400m²;
           (c)   the area for Fast Food has been increased from 250m² to 600m²;
           (d)   the proposed café has been removed from the proposal;
           (e)   the area for the medical centre has increased from250m² to 600m²

(f)  the proposal now includes a pharmacy, which was not part of the original proposal. (This is, in part, the explanation of the increased area for the medical centre, and the decrease in the area of the specialty shops.)
(g)  the overall reduction in gross floor area is from 4600m² to 3420m² – a reduction of 1180m².

1. The co-respondent contends that the reduction in size of the proposed supermarket will change it from a “full-line” supermarket to one with a “convenience” character.  The practical consequence of the change in size is said to be that the proposed centre will be unable to provide the level of goods and services to the residents of the southern part of Bagara, Innes Park, Coral Cove and Elliott Heads that was implied by the original proposal.  This contention is countered by the submission that the change would be unlikely to raise any objection from members of the public, but I consider the difference in size and character of the supermarket to be a significant change.

1. The co-respondent further contends that the change in role for the proposed centre is reinforced by the deletion of the café, the reduction in the specialty shops from 950m2 to 400m2, and provision of an additional 350m2 for fast food outlets.  It is said that a reduction of 550m2 in the area available for specialty shops could mean 5 to 6 fewer tenancies, and the increase of 350m2 in fast food floor space could mean 4 to 5 additional tenancies.

1. In general, it is contended by the co-respondent, and not directly disputed by the appellant, that the reduction in the scale of the development will bring the development down to a scale more consistent with a convenience centre than with a district centre.  The co-respondent contends that while the proposed centre will still provide convenience level services, many residents are likely to continue to travel into central Bagara or Bundaberg because the revised proposal will not meet their needs.

1. The co-respondent submits that the number of changes, and the nature and extent of those changes, have resulted in a materially different proposal in a physical and in an operational sense.

1. The appellant submits generally, that the court would be satisfied that viewed fairly the changed proposal is still for the same development as previously proposed, but at a lesser scale, with improved car parking and improved landscaping.

1. I accept that the changed proposal is for a similar development, but the alteration in scale of the different parts of the development is such as to exceed a change which can be appropriately described, both physically and operationally, as a minor change. The reduction in size of the supermarket which results in a change to the type of supermarket contemplated, the reduction in area for the specialty shops, the increase in the area to be devoted to Fast Food and the overall reduction in size of the proposed development, result in my opinion in a significantly different proposal.  The changes cannot reasonably be described as minor.

1. I conclude for the purposes of s.4.1.52(2)(b) IPA that the change to the application on which the decision being appealed was made is not only a minor change.