Liquorland (Aust) Pty Ltd v Gold Coast City Council

[2002] QPEC 26

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Liquorland (Australia) Pty Ltd v Council of the City of Gold Coast & Anor [2002] QPEC 026
PARTIES:	LIQUORLAND (AUSTRALIA) PTY LTD

Appellant

COUNCIL OF THE CITY OF GOLD COAST

Respondent

AND

PERRY DAVIES

Co-respondent

FILE NO:	5404/ 2001
DIVISION:	Planning & Environment Court
PROCEEDING:	Application
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	11 February 2002
DELIVERED AT:	Southport
HEARING DATE:	4 February 2002
JUDGE:	Newton DCJ
ORDER:	Application dismissed
CATCHWORDS:	Building control and town planning – Council approval – variation of conditions – where separate applications are made for Hotel use (which permits ancillary use of gaming machines), and for the use of that Hotel with a greater number of machines in a larger area of the Hotel – where no conflict exists between the conditions of the two approvals – s 3.5.32 Integrated Planning Act 1997 - where the application is not piecemeal and does not involve a material change in the intensity of the Hotel use
COUNSEL:	Mr T Trotter – appellant Mr R Litster – respondent Mr S Ure – co-respondent
SOLICITORS:	McCullough Robertson – appellant McDonald Balanda & Associates – respondent Hickeys – co-respondent

IN THE PLANNING & ENVIRONMENT COURT OF QUEENSLAND

BRISBANE	No: 5404 of 2001
LIQUORLAND (AUSTRALIA) PTY LTD

Appellant

COUNCIL OF THE CITY OF GOLD COAST

Respondent

AND

PERRY DAVIES

Co-respondent

REASONS FOR JUDGMENT – NEWTON, DCJ

(Delivered the 11th day of February 2002)

[1] This application involves the determination of preliminary points in relation to an appeal against the approval by the respondent Council of an application for “Material Change of Use – Impact Assessment for an Indoor Recreation (Gaming Machines) in association with an approved Hotel – Perry Davies – Lot 8 on RP 89264 – 103 West Burleigh Road, Burleigh Heads”.

[2] On 5 March 2001 this Court approved subject to conditions, an application to

use land situated at 103 West Burleigh Road, Burleigh Heads for the purposes of a
Hotel. The conditions included the following:

“1.	The development shall be generally in accordance with the Approved Plan attached hereto, namely Plan No. 98435D- Sheet 1C, dated 26 February 2001 drawn by Hooker Design Consultants (‘the Approved Plan’), and such Approved Plan shall only be altered or modified by further order of the Court.
2.	The maximum size of the area designated for bottle shop use shall be 33.3m2 with a maximum combined Total Use Area of 280m2.
3.	The 5m2 gaming machine area shall be located to comply with Gaming Machine Regulations and the requirements of the Queensland Office of Gaming Regulation.”

[3] On 4 July 2001 the co-respondent, Perry Davies, lodged with the respondent Council an application for a “material change of use for Indoor Recreation (Gaming Machines) in association with an approved Hotel”. The object of this application was to increase the number of gaming machines in the Hotel to 25. This would result in a total use area of 30m2. The application was publicly notified and attracted one objection from the appellant herein.

[4] By letter dated 24 September 2001 the respondent Council advised Mr Davies that the application had been approved.

[5] The appellant now raises a number of preliminary points based on paragraphs 1, 2(a), 2(b), 2(c) and 2(d) of the Notice of Appeal, and paragraphs 1 to 9 of the Further and Better Particulars filed on 18 December 2001. The preliminary points may conveniently be identified as follows:

(i)         The subject decision notice includes conditions which allegedly are inconsistent with conditions 1, 2 and 3 of the Hotel approval; and

(ii)        It is alleged the application was piecemeal.

[6] The appellant complains that the second application seeks to build on and supplement the previous approval for the Hotel by the adoption of the extra gaming machines. Mr Trotter, for the appellant, submitted that the Council apparently did not consider that the Court order of 5 March 2001, in so far as it related to the restriction of the gaming machine area, continued to apply to the development. This, it was submitted, has led to inconsistencies between:

(i)         The approved plan together with conditions 1, 2 and 3 of the approval of 5 March 2001 and condition 1 of the second approval which stipulated that:

“1. The development shall be carried out generally in accordance with DWG No. 21576L, dated 28 June 2001, and Plan No. 98436D approved by Court order dated 5 March 2001, drawn by Hooker Design Consultants, the approved plans and details submitted to Council stamped and returned to the applicant with this decision notice.”

(ii)        The provision of storage for the Hotel in the second application which was not part of tenancies 3 and 4 in the approval of 5 March 2001.

(iii)       The intensity of the Hotel use as under the second approval as opposed to the intensity of use under the first approval.

[7] Mr Trotter submitted that the second approval was in breach of S 3.5.32 of the

Integrated Planning Act 1997 (IPA) which provides, as relevant, that:

“(1)	A condition must not –
(a) be inconsistent with a condition of an earlier development approval still in effect for the development.”

It was submitted that it could not be argued that the second approval supersedes the first because what was applied for was Indoor Recreation (Gaming Machines) or possibly Indoor Recreation (Gaming Machines in association with an approved Hotel). In either case, submitted Mr Trotter, the continued existence of the first approval was essential because the second application did not include Hotel in the uses for which approval was sought. The second approval, it was said, is inconsistent with the first, in that:

(i)         the number of and space occupied by the gaming machines conflicts;

(ii)        the movement of patrons from the restaurant to the bar area is different;

(iii)       the storage area is not part of tenancies 3 and 4 in circumstances where the application only related to those tenancies; and

(iv)       the storage area was never part of the first approval for the Hotel.

[8] Mr Trotter further submitted that as the development application was for a material change of use which is assessable development within the meaning of Schedule 8 of IPA, S 3.5.33 of that Act could not apply to the development and that any attempt to change or cancel the condition of the prior approval which dealt with the area for gaming machines, could be done only by making a new and separate application for the Hotel and Indoor Recreation (Gaming Machines), rather than an application for the additional use of Indoor Recreation (Gaming Machines) alone. S 3.5.33 of IPA applies if :

1.          A person wants to change or cancel a condition; and

2. cancellation.

No assessable development would arise from the change or condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition.

[9] The difficulty with the argument advanced on behalf of the appellant is that it confuses the meaning of the expression “the development” in s 3.5.32(1) of IPA. There is no “earlier development approval still in effect” for the development in question which, it will be remembered, is the “Material change of use – impact assessment for an Indoor Recreation (Gaming Machines) in association with an approved Hotel – Perry Davies – Lot 8 on RP89264 – 103 West Burleigh Road, Burleigh Heads”. There is an earlier development approval for a different development, namely the development of a hotel. All that has happened in this case is that the co-respondent has made an application for further development to take place on the land the subject of the earlier approval. In these circumstances, I cannot see how there can be said to be conflict between the second approval and the first approval.

[10] In effect, there are two separate approvals on foot, one for the hotel (which permits ancillary use of gaming machines), and one for the use of that hotel with 25 gaming machines in 30m2. The definitions in the relevant planning scheme of “Hotel” and “Indoor Recreation” should be noted. “Hotel” is defined as “any premises used or intended for use for purposes of a licence under the Liquor Act”, while “Indoor Recreation” is specifically defined so as to include “premises containing more than four poker or gaming machines”. It follows, in my opinion, that the Council has quite properly approved the second application as no question arises in respect of conflict between the conditions pertaining to the two approvals which should be viewed separately and not in terms of the second being an amendment of the first.

[11] If it is understood that two discrete uses are involved with these two applications, it can be readily understood that there is no intensification sought of the Hotel use. Rather, it is a separate use that has been added to the same premises that the hotelier shares. In any event, there is no evidence before me as to any significant increase in scale or intensity of use in respect of the proposed Hotel use.

[12] As to the suggestion that the application is piecemeal in that it only sought approval for the Indoor Recreation (Gaming Machines) whereas it should have included an application to authorise the use of the land for the purposes of a hotel, it should be remembered that the applicant already had an approval for a hotel including 5m2 of gaming machines. In those circumstances, there was no obligation on the co- respondent to make an application for a hotel permit as part of its second application because it already had approval for such use as a result of its first application.

CONCLUSION

[13] In my view there is no conflict between the second approval and the first approval, nor is the application properly to be regarded as piecemeal. Furthermore, I am not persuaded that a material change in the intensity of the Hotel use will inevitably result from the approval of the second application. The appeal should therefore be dismissed in so far as it concerns the determination of the identified preliminary points.

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