Macquarie Leisure Operations Limited v Gold Coast City Council & Ors
[2007] QPEC 20
•15 March 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPEC 020
PARTIES:
MACQUARIE LEISURE OPERATIONS LIMITED ACN 104 529 106
Applicant/appellant
V
GOLD COAST CITY COUNCIL
Respondent
And
THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994
First Co-respondent by election
And
THE CHIEF EXECUTIVE UNDER THE TRANSPORT PLANNING AND CO-ORDINATION ACT 1994
Second Co-respondent by election
And
THE CHIEF EXECUTIVE OF THE ENVIRONMENTAL PROTECTION AGENCY
Third Co-respondent by election
And
THE CHIEF EXECUTIVE UNDER THE VEGETATION MANAGEMENT ACT 1999
Fourth Co-respondent by election
And
THE MINISTER FOR LOCAL GOVERNMENT PLANNING AND SPORT
Fifth Co-respondent by election
FILE NO/S:
Southport 395/2006
DIVISION:
Planning and Environment
PROCEEDING:
Application in a proceeding
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
15 March 2007
DELIVERED AT:
Brisbane
HEARING DATE:
12 March 2007
JUDGE:
Alan Wilson SC, DCJ
ORDER:
CATCHWORDS:
PLANNING – PLANNING AND ENVIRONMENT – CONSTRUCTION OF LEGISLATION – CHANGE TO DEVELOPMENT APPLICATION – WHETHER ‘MINOR CHANGE’ – Integrated Planning Act 1997, s 4.1.52(2)(b) – code assessable application
Integrated Planning Act 1997, ss 1.2.3, 3.2.7, 3.2.9, 3.3.6, 3.3.7, 3.5.4(2), 3.5.13, 3.5.24, 4.1.27, 4.1.50, & 4.1.52(2)(b)
Local Government (Planning and Environment) Act 1990, s 4.15Cases considered:
Butler v Kingaroy Shire Council [2006] QPEC 093
Butler v Kingaroy Shire Council [2007] QPEC 012
Carillon Development Pty Ltd v Maroochy Shire Council [2000] QPELR 216Colmin & Ors v Brisbane City Council [2002] QPELR 288
Cooroy Golf Club Inc v Noosa Shire Council [2001] QPELR 431
Grant v Pine Rivers Shire Council [2006] QPELR 112
Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22
Simmons v Esk Shire Council [2006] QPELR 570
Stradbroke Island Management Organisation Inc v Redland Shire Council [2001] QPEC 074
Studio Tekton Pty Ltd v Redland Shire Council [2006] QPEC 107
Walker v Noosa Shire Council [1983] 2 Qd R 86COUNSEL:
J Haydon for applicant/appellant
C Hughes SC and M Williamson for respondent
M Hinson SC and N Kefford for first co-respondent by election
SOLICITORS:
Mullins Lawyers for applicant/appellant
King and Company for respondent
C W Lohe, Crown Solicitor for first co-respondent by election
The appellant seeks to alter the development proposal which is already the subject of this appeal. The application hinges on whether the changes are ‘minor’ within the meaning of that word where appearing in s 4.1.52 of the Integrated Planning Act 1997 (IPA). The section (and its predecessor) has been extensively considered by the Court[1]. It provides:
[1]In a recent case some 17 previous decisions were cited: Butler v Kingaroy Shire Council [2006] QPEC 093, per Brabazon QC, DCJ at [18]
4.1.52Appeal by way of hearing anew
(1)An appeal is by way of hearing anew
(2)However, if the appellant is the applicant or a submitter for a development application, the court –
…
(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.
In August 2005 the appellant lodged an application for: a development permit (material change of use) for shopping centre development, amusement parlour, childcare centre, cinema, fast food premises, indoor recreation facility, telecommunications facility, tourist facility, and car park; and, for development permits for operational works on land at Foxwell Road, Coomera.
At the time the application was made it required code assessment and referral coordination. The acknowledgment notice listed the concurrence agencies as the Department of Main Roads, Department of Natural Resources and Mines, the Contaminated Land Unit at the Environmental Protection Agency, and Queensland Transport. The Department of Natural Resources and Mines was also an advice agency with respect to acid sulphate soils.
In July 2006 Council resolved to refuse the development, for reasons which included: its alleged failure to promote integration within the area addressed in a part of the Council planning scheme, the Coomera Town Centre Local Area Plan (LAP); its excessive concentration of development to the south of Foxwell Road, away from the Coomera Railway Station; its design, which was said to involve a traditional ‘big box’ shopping centre surrounded by a large area of car parking, contrary to the character of the development sought to be achieved by the LAP; the fact that it was not based on a grid system of streets, with car parking located behind buildings, or underground; the large area of above ground car parking which would form a dominant visual feature (said, again, to be contrary to the LAP); and, conflict with the planning documents, to an extent that it could not be conditioned to comply with the applicable codes.
The current proceeding is Macquarie Leisure’s appeal against that decision, under IPA s 4.1.27. Macquarie bears the onus of establishing the appeal should be upheld: s 4.1.50. The appeal process, as the first part of s 4.1.52 provides, is by way of ‘hearing anew’. As Thomas J said in Walker v Noosa Shire Council [1983] 2 Qd R 86[2], the real issue in an appeal of this kind is whether the application should be approved or disproved, not whether the Council’s decision was correct or not [3].
[2]At p 88
[3]And, see R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22, at 27-28 per McPherson J, and 40 per Thomas J
The nature and effect of the proposed changes are partly discernable from exhibits 1 and 2 which show, respectively, the original, and proposed new plans. The most striking changes, some of which are apparent in those exhibits, are:
(a) a reduction in the total floor area of about 6,500 m2;
(b) a reduction in overall parking space numbers from 2,239 to 1,564;
(c) a change in the configuration of the car parking such that the car park on the western side is reduced from 1,292 to only 349 spaces (a reduction of 73 per cent); and, an increase in the number of spaces on the eastern side from 903 to 1,215 (an increase of 35 per cent);
(d) relocation of an access road on the eastern side to the extreme eastern boundary, with all parking now located to the west of that road and parking access from it consolidated to three defined access points; and
(e) provision of additional internal east-west road links in the western parking module.
The changes include design alterations and the introduction of new buildings. Those which attracted most attention and evidence, however, involve traffic and traffic engineering. Mr Beard, the senior traffic engineer retained by Council, whose frank and forthright opinions have often assisted the Court, believed the design changes would have significant consequences. In his view, the reduction in floor area produced a reduction in external traffic generation in the order of 11 to 14 per cent, when 5 per cent was, in his view, significant.
Secondly, Mr Beard was concerned that the original development application contemplated that the proposal would provide overflow car parking for Dreamworld, and the large reduction in the number of car parking spaces has a major effect on that element. Thirdly, he believed the changes would necessitate significant alterations to the design of two access intersections on Foxwell Road, caused by changes in external traffic generation and the fact that, with the changes, the majority of traffic entering the site would approach from the eastern-most intersection.
Mr Pollock, the traffic engineer acting for the first co-respondent, expressed the view these changes would materially alter both the distribution of traffic between the two proposed external points to Foxwell Road and the resulting geometric lane requirements at the two intersections, and require a future higher order linkage to another nearby road, Beattie Road. This, he concluded, represented a significant change to the future intent of this road, when compared to the original proposal. It would result, he said, in a significant shift in the long-term traffic distribution in and around the development not just in terms of the supporting local road network, but also in terms of likely traffic impacts on the various interchanges with the Gold Coast Motorway, the M1.
Mr Williams, the traffic engineer advising the appellant, disputed these contentions. He agreed the distribution of traffic to the two site access intersections on Foxwell Road would be different but said the changes could be addressed through future meetings of experts – i.e. in the course of experts’ meetings directed by the Court when the matter originally came before it. The other changes could, in his view, be ‘conditioned appropriately’. As to Mr Pollock’s concerns about the relocation of the eastern access road, Mr Williams avers this was effected in direct response to issues raised during earlier experts’ meetings and would have no impacts on Beattie Road, or the M1.
Mr Middleton, the town planner retained by Council, expressed the view that the introduction of a functional grid pattern of streets significantly altered the urban setting of the proposal. He also said the introduction of decks and a car parking structure gave rise to new issues with respect to surveillance and safety, and created a ‘long unrelieved two storey urban edge which continues for several hundreds of metres along Rivertown Road’. This, he said, significantly altered the provision for connectivity and pedestrian movement throughout the site and to the proposed town centre. Ms Vigar, the planner retained by Macquarie Leisure, concluded the changes had, overall, a beneficial result involving a lessening of impacts and a heightened level of compliance with the principles of the LAP. A similar conclusion was expressed by Mr Zeckovic, an architect.
Mr Middleton’s report usefully summarises the major design changes:
The original application plan is clearly of an isolated, free-standing retail complex with little to no operational connection with Coomera Railway Station. The road pattern proposed for access to the centre is one based around two major signalised intersections providing direct access to at grade east and west car park areas surrounding the shopping centre complex.
In the revised scheme this pattern of roads has been extended significantly to become public roads, forming a grid of frontages into which the car park and shopping centre complex are placed.
None of these witnesses was required for cross-examination. All filed affidavits annexing reports addressing the changes and expressing conflicting views about the nature and effect of the changes and (subject to some objectionable passages in them, which were removed) conflicting opinions about whether those changes were ‘significant’ or ‘minor’.
The changes are not, in terms of the large scale of this development, as swingeing as the bare numbers and measurements might tend to suggest but they do not immediately impress as falling within the ordinary meaning of the word ‘minor’. They certainly go well beyond mere matters of detail. In terms of road, traffic and car parking arrangements it is impossible to see how they can fairly be described as affecting anything other than significant alterations to the traffic implications and effects of the development with reference to internal traffic circulation, and impacts on both the local road and State controlled road networks.
The same conclusion applies to matters of urban design. The introduction of a functional grid pattern of streets, while more in keeping with the principles of the LAP, alters the urban setting of the proposal. The introduction of additional buildings as part of the new ‘urban edge’ along Rivertown Road, several hundred metres long, is a change which can be described, without exaggeration, as dramatic.
It can only be said, at the highest for the appellant, that the nature and effects of the changes remains the subject of conflicting expert opinion. If, as seems clear, the onus of establishing that the changes are minor falls upon the appellant as the proponent of that contention, taking the matter no further than this level of conflict arguably falls short of meeting the onus.
The Macquarie Dictionary defines ‘minor’ as ‘…lesser, in size, extent or importance...’. The Shorter Oxford has ‘…lesser; designating or pertaining to the lesser or relatively lesser of… two things’, and ‘…also, comparatively unimportant or insignificant...’.
IPA contemplates, unsurprisingly, the possibility of changes to development applications during both the IDAS process, and during appeals. The term ‘minor change’ is not defined for the purposes of s 4.1.52, although a definition of it does appear in Schedule 10 albeit with reference to a ‘minor change’ to a ‘development approval’.
IPA s 3.2.9 permits a development application to be changed by the giving of written notice to the assessment manager, and stops the IDAS process if (as here) there are referral agencies for the original application (who must be advised of the proposals for change: s 3.2.9(2)).
Even after the IDAS process reaches the approval stage (Ch 3, Div 5) a development approval may be changed, but only if it is a ‘minor change’: s 3.5.24. The onus is upon the applicant for change to advise all concurrence agencies and the assessment manager, and ask the latter to affect the change. It is to this section to which the definition of ‘minor change’ in Schedule 10 apparently refers. The definition provides:
minor change, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change –
(a) require referral to additional concurrence agencies; or
(b) cause development previously requiring only code assessment to require impact assessment; or
(c) for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.
It is not suggested any of these requirements are called up here. It has been said, however, that the definition is of some assistance in construing the phrase when it is used in s 4.1.52(2)(b)[4]. That is unsurprising when the Explanatory Note for s 4.1.52 says: ‘the court also must not consider a development proposal which is different from the one originally considered by the assessment manager, unless the change is a minor change’, and the sentence ends with a footnote bearing the words ‘minor change’ for a development approval is a term defined in the dictionary in Schedule 10’.
[4]Carillon Development Pty Ltd v Maroochy Shire Council [2000] QPELR 216; Stradbroke Island Management Organisation Inc v Redland Shire Council [2001] QPEC 074; Colmin & Ors v Brisbane City Council [2002] QPELR 288
The use of the same phase and the rather surprising reference in the footnote to a definition which does not on its face have any immediate application to the term when it appears in s 4.1.52(2)(b) gives rise to conjecture whether it was used deliberately, for consistency throughout IPA and, possibly, as an aid to the construction of the phrase albeit in a subsection which did not adopt it. It explains, at least, the fact recourse has been had to the definition in previous decisions of this Court.
The requirement, in ss 3.2.9 and 3.5.24, that both the assessment manager and, if they are involved, referral agencies have the opportunity to consider changes plainly reflects a statutory intent that alterations to development proposals cannot avoid the strictures of the IDAS process, and must always receive all necessary and proper consideration before approval, or refusal. It is compelling that s 4.1.52(2)(b) reflects a like purpose, and falls within the same statutory context: that is to say, the proponent of a development proposal may not, the legislature intends, circumvent due consideration by all parties interested under the IDAS process by making anything other than minor changes after the matter is before the court[5].
[5]See e.g., Butler v Kingaroy Shire Council [2007] QPEC 012
That said, I respectfully adopt the observation of Rackemann DCJ in Simmons v Esk Shire Council [2006] QPELR 570[6] to the effect that it is important not to adopt a test other than that stipulated in the statute[7]. Notwithstanding the possibility of a statutory hinterland, as it were, to be found in IPA the phrase is, ultimately, a simple and straightforward one which should be construed principally by reference to matters of scale and degree[8], and broadly and fairly[9].
[6]At 571
[7]Supra, at para [2]
[8]Grant v Pine Rivers Shire Council [2006] QPELR 112, at 116, para [20]
[9]Cooroy Golf Club Inc v Noosa Shire Council [2001] QPELR 431; Simmons (supra), para [2]
In some of this Court’s decisions and, in particular, those involving the predecessor to s 4.1.52(2)(b)[10] it has been suggested the provision should attract a generous interpretation; and that, through flexibility in modifying proposals, better development may be achieved: Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386. As Rackemann DCJ also observed in that case, however, the matter comes before the Court by way of an appeal, and the Court must not deprive the proceedings of that character by usurping the function of the decision maker at first instance[11].
[10]Local Government (Planning and Environment) Act 1990, s 4.15
[11]Supra, at para [24]
I also accept the force of the submission of Mr Hinson SC (for the first
co-respondent) that decisions under the previous legislation, which often asked the question whether the change would result in a ‘materially different proposal’ from what was originally put forward, involved a different test from that posited by the IPA provision: so much was recognised by Rackemann DCJ in Simmons[12]. All that the new provision requires is a judgment about whether or not the change is minor.
[12]Supra, at para [2]
The second question arising in connection with the proper construction of the phrase is the weight, if any, to be given to the prospect that the proposed changes are beneficial or ameliorative. That conclusion was pressed by Mr Haydon, for Macquarie Leisure, reflecting conclusions reached by Ms Vigar, Mr Williams and Mr Zeckovic. That is not, however, an obvious element of the test for a ‘minor change’, as was remarked in Studio Tekton Pty Ltd v Redland Shire Council [2006] QPEC 107[13] (a case in which it was also noted that, in this jurisdiction, the occasional irony can arise that a significant alteration to a proposal may make it more acceptable to submitters or other opponents but, because of its scale, yet expose itself to categorisation as a major, and not a minor change).
[13]At [17]
Arguably, the possibility of beneficial outcomes might be relevant if recourse is had to the third arm of the definition of ‘minor change’ in Schedule 10, (c), which looks to the question whether a change to an impact assessable application for development approval might cause a person to make a new submission objecting to it. That is not a relevant consideration here.
Mr Hughes SC (for the Council) emphasised, in his submissions, that this application was code and not impact assessable. As he pointed out, IPA requires the fate of a code assessable development application to be determined, in the first instance, by the appropriate assessment manager, with recourse only to referral agencies. IPA s 1.2.3 makes it clear the purpose of the Act is to ensure decision-making processes are accountable, coordinated and efficient and the procedural provisions mentioned earlier ensure that occurs during the IDAS process. The selection of the assessment manager is a deliberate legislative act, and that assessment manager is obliged to assess the application in the manner prescribed by IPA.
In particular, under s 3.2.7, the manager may ask other persons for advice or comment; or, seek further information, under ss 3.3.6 or 3.3.7. Then, assessment must be undertaken against those documents referred to in s 3.5.4(2) and a decision reached pursuant to the requirements of s 3.5.13. If this Court has to consider a change it is not, however, empowered to order further interlocutory steps in the appeal process that would provide the assessment manager with the same breadth and depth of knowledge as these statutory provisions both allow, and encourage. In light of the statutory context in which s 4.1.52(2)(b) operates, these submissions are cogent, and bear upon the approach the Court should take.
It is no answer, I think, to submit (as the appellant did) that the intent and substance of these IDAS processes can yet be satisfied, if the changes are allowed and the appeal proceeds, when the respondents undertake their preparation for the trial. It is not at all clear that in the course of further pre-trial proceedings steps like requests for particulars, further meetings of experts, or disclosure would give the assessment manager the same detailed information it can obtain via the IDAS process. As Mr Hughes SC pointed out, requests for particulars are not infrequently met with the objection that they seek evidence – when, of course, that is exactly the kind of thing the assessment manager can ask for under ss 3.3.6 and 3.3.7.
The appellant’s proposed changes would, in truth, necessarily require the respondent Council to reassess all or a large part of the development application against all of the applicable codes. This would necessarily occur in circumstances where that assessment is constrained by, and subject to, the exigencies of litigation; in the possible absence of further information (e.g., a traffic assessment report, and an urban design report) which might well have been sought in an appropriate information request if the matter arose during the IDAS process but which, now, can only be provided by the appellant if the appeal proceeds to trial on the amended or changed plans (or by the respondents’ own endeavours); and, in the absence of important assessment and decision making tools conferred by IPA, in the IDAS process.
Even if it is accepted that the proposed changes seek to address issues which have been raised in the appeal proper and might, arguably, be classified as beneficial, that does not overcome the jurisdictional hurdle: namely, that the changes must be limited to ones which are minor. Detailed analysis of the changes tends, compellingly, to confirm the initial impression gleaned from Exhibits 1 and 2 – that they are striking, are on a large scale, and do not comfortably fit within the ordinary meaning of the word ‘minor’ (or the phrase ‘minor change’). That phrase, on its face, does not contemplate changes on this scale.
The evidence of the appellant’s experts does not work to successfully rebut this conclusion. Their opinions, at the highest, do not impress as achieving more than to leave the issue moot – a conclusion which means the applicant has, simply, failed to satisfy the Court they are changes of a kind contemplated by, and permissible under, s 4.1.52(2)(b). For these reasons, the application is refused.
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