Meiklejohn v Sunshine Coast Regional Council
[2010] QPEC 22
•19 March 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Meiklejohn v Sunshine Coast Regional Council & Anor [2010] QPEC 22
PARTIES:
LEE MEIKLEJOHN
(Appellant)v
SUNSHINE COAST REGIONAL COUNCIL
(Respondent)and
BUNNINGS PROPERTIES PTY LTD
(ACN 008 557 622)
(Co-Respondent)FILE NO/S:
Appeal No 2289 of 2009
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
19 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
10 March 2010
JUDGE:
Searles DCJ
ORDER:
The appellant’s application in relation to all preliminary issues is dismissed;(1)
The appeal should proceed to determination on its merits;(2)
The question of the costs thrown away by Bunnings in relation to the referral coordination point issue be reserved; and(3)
(4) Liberty to apply.
CATCHWORDS:
PLANNING AND ENVIRONMENT – PRELIMINARY ISSUE – where an amended plan was submitted to the council by the applicant in the course of the IDAS process – where the council approved the development conditional upon the applicant’s compliance with the amended plan – whether the applicant’s submission of the amended plan constituted a change of the Development Application – whether the IDAS process should have stopped under s 3.2.9(3) of IPA.
PLANNING AND ENVIRONMENT – PRELIMINARY ISSUE – where the council approved a Development Application with conditions – whether the development approved by the council was beyond power in that it was materially different from that applied for by the applicant.
PLANNING AND ENVIRONMENT – PRELIMINARY ISSUE – where the council approved a Development Application with conditions – where the approval is appealed and is to be heard anew by this Court – whether this Court has the power to uphold the approval under s 4.1.52(2)(b) of IPA – whether the changes to the relevant plan were minor changes only.
Sustainable Planning Act 2009
Integrated Planning Act 1997(Repealed)Metroplex Management Pty Ltd v Brisbane City Council & Ors [2009] QPEC 110.
Mount Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347.
Ross Neilson Properties Pty Ltd v Caloundra City Council [2007] QPELR 259.
SLS Property Group Pty Ltd v Townsville City Council & Anor [2009] QCA 380.COUNSEL:
M. Williamson – Appellant
N.J Kefford – Respondent
D.R Gore QC and B.D. Job – Co-Respondent
SOLICITORS:
Connor O’Meara Solicitors – Appellant
Wakefield Sykes – Respondent
Norton Rose Australia – Co-Respondent
[1] This application involved the determination of three preliminary issues raised by the appellant in his appeal against the Council’s approval of Bunnings’ development application for a development permit for a material change of use in respect of land situated at 178-182 Eumundi-Noosa Road, Noosaville (the Site). The proposed development is a Bunnings Warehouse.
[2] On 24 July 2009 the Council issued a Negotiated Decision Notice (NDN) granting a development permit subject to conditions.[1] That decision gave rise to three appeals:-
[1]Affidavit Holland , page 997
(a) The abovementioned appeal against the Council’s approval;
(b) Bunnings’ Appeal BD 2378 of 2009 against the Infrastructure Charges Notice concerning charges for the coastal major road networks; and
(c) Bunnings’ Appeal BD 2379 of 2009 against the conditions of approval relating to road works in Eumundi-Noosa Road and Gateway Drive.
Preliminary issues for determination
[3] As with the substantive appeal, by virtue of s 819(2) of the Sustainable Planning Act 2009 (SPA) the preliminary issues fall for determination under the repealed Integrated Planning Act 1997 (IPA), as if SPA had not commenced. These are conveniently summarised in the appellant’s written submissions as:-
(a) Whether Bunnings “changed” its Development Application during the decision stage of the IDAS process such as to trigger s 3.2.9(3) of IPA which would have the effect of stopping that process;
(b) Even if there was no relevant change as in (a) above, was the Council’s approval decision beyond its power in s.3.5.11 of IPA on the basis that it approved a development materially different from that for which approval was sought; and
(c) Again assuming there was no relevant change as in (a) above, does the Court have power to approve the development approved by the Council given that s 4.1.52(2)(b) of IPA prohibits the Court from considering a change to an application unless that change is a minor change.
There is no issue that Bunnings carries the onus on this application. [2].
[2] IPA s.4.1.50 (2)
Chronology
[4] Schedule A to this judgement contains a chronology of what I see to be the relevant documents in the IDAS process, identified in the affidavit of Mr Holland, the traffic engineer for the appellant.
Differences between the Plan of Development included with Development Application and the Plan of Development approved by the Council
[5] The plan lodged with the application was titled DRG. No.1096-030Amd.A[3]. In response to the Council’s letter of 26 March 2007 requesting two copies of the plans to scale A1 size of the proposed development, PMM sent drawing entitled 1096-030Amd.No.B and that plan is the one which all traffic experts, Messrs Holland, Viney and Beard have compared with the final plan. It appears to me to be identical to the first mentioned plan so nothing turns on the fact Amendment A rather than Amendment B to the plan was initially included with the application.
[3]Affidavit Holland, page 47
Original Plan -Plan 1096-030-AMD. No. B
[6] This Original Plan shows the main Eumundi-Noosa Road running roughly east/west along the site. There is a roundabout in that road at the southern entrance to the proposed development, so that motorists coming from the east wishing to access the site would turn right around the roundabout and drive into the entrance. Those travelling from the west would turn left on the roundabout into the entrance. Rene Street feeds into the roundabout from the south.
[7] Eumundi-Noosa Road continues roughly west past the site, to a roundabout at its junction with Beckman’s Road where Eumundi-Noosa Road takes a south-westerly direction out of the roundabout.
[8] Gateway Drive runs roughly in a south/north direction along the western boundary of the site, away from its intersection with Eumundi-Noosa Road in the south. On the original plan access to the site could be obtained from Gateway Drive for those travelling in a southerly direction by turning left at one of two points into the site. Likewise those customers leaving the site at either of those access points would turn left onto Gateway Drive. At the north-western boundary of the site, one of the two abovementioned access points proposed for customers is also to be used as an exit point for delivery vehicles which enter the site in the diagonally opposite south-easterly corner. So, there were three entry points to the site; one from the roundabout and two from Gateway Drive.
Car spaces on original plan
[9] The number of car spaces provided for on the original plan was 285.[4]
Approved Plan – 1096-030-Amd.P7
[4]Affidavit Holland, page 11
The Approved Plan proposed the realignment of Gateway Drive directly into the Eumundi-Noosa Road/Rene Street roundabout. This involves Bunnings dedicating a significant part of the site for road use. As a result of this realignment, access from the Eumundi-Noosa Road/Rene Street roundabout into the site will no longer be available and all vehicular access will now be through the two access points on Gateway Drive, as shown on the Original Plan.
Car parking on approved plan
The 285 car parking spaces on the original plan were reduced to 214 on the approved plan. As will be later seen there is a discrepancy in the evidence as to the final car parking figures, with Mr Holland using the figure of 214 and Mr Viney 228 being 220 car parking spaces and 8 motorcycle spaces. Mr Viney’s figures are in accord with Condition 32 of the Negotiated Decision Notice.[5] I am proceeding on the basis that the correct figure is 228 spaces, although the difference between the figures of the two experts has not been influential in my decision on the issue of parking.
[5]Affidavit Holland p 982.
Traffic Engineers’ Reports
It is appropriate at this stage to deal with the opinions expressed by the three traffic engineers, Mr Holland for the appellant, Mr Beard for Council and Mr Viney for Bunnings. All three compared the original and approved plans and expressed opinions as to the changes.
Mr Holland
Mr Holland regarded the changes as significant rather than minor[6] and relied on the following for that opinion:-
[6]Affidavit Holland paragraphs 11 and 12
(a) A 25 per cent reduction in on-site car parking [285 down to 214] which he said would increase the prospect of on-street car parking, particularly in Gateway Drive;
(b) The deletion of the primary public vehicular access from the Eumundi-Noosa Road/Rene Street roundabout;
(c) The elevation of the two Gateway Drive secondary accesses to become the only vehicular access to the site; and
(d) The realignment of Gateway Drive through the bend to connect with the Eumundi-Noosa Road/Rene Street roundabout resulted in traffic exiting the site being able to turn both left and right onto Gateway Drive whereas previously that access was restricted to left-in and left-out movements from the site onto Gateway Drive.
For the above reasons, Mr Holland considered that the function of the road network in the immediate vicinity of the site would be substantially altered.
Mr Beard
Mr Beard disagrees with Mr Holland and considered that the development depicted in the approved plan was not a substantially different development in traffic engineering terms to that depicted on the original plan.[7] He gave the following reasons for that opinion:-
[7]Affidavit CL Beard, paragraph 5
(a) The design traffic volumes of the developments on both plans would be essentially the same, with no significant difference in the impacts of the traffic generated by the development on the adjacent major road network;
(b) The approach to the site via the northern Gateway Drive driveway will be unchanged between the proposals of the two plans;
(c) The approach to the site for traffic travelling east along Eumundi-Noosa Road will remain essentially unchanged as the traffic can enter the site via Gateway Drive or the Eumundi-Noosa Road/Rene Street roundabout;
(d) Traffic approaching the site from all other directions will need to utilise an upgraded Rene Street roundabout and the proposed northern leg of the Rene Street roundabout. In the earlier proposal, this northern leg would have been an internal driveway, whereas, in the later proposal, the northern leg would be a dedicated road. However, there will be no significant functional differences between the two proposals for traffic moving to and from the subject development which will have negligible significance to existing or future road users in terms of navigability and the likely direction to and from which they travel;
(e) The only function change to the local road network will be the elimination of the need for Gateway Drive traffic, unrelated to the proposed Bunnings development, to generate U-turns at the Rene Street roundabout and the Beckman’s Road roundabout on Eumundi Road; and
(f) The reduced car parking provision remains adequate to comply with the planning scheme requirements and to accommodate the reasonably anticipated design peak demand and parking demands of the development so that the reduced parking will have no significant internal or external consequences.
Mr Viney
Mr Viney identified the two primary differences between the two plans[8] as:-
[8]Affidavit N Viney, paragraph 7
(a) The diversion of the existing Gateway Drive reserve through the south-western corner of the subject land, so as to connect with the roundabout at the intersection of Eumundi-Noosa Road and Rene Street; and
(b) The reduction in car parking spaces.
He considered the other differences referred to by Mr Holland including land dedication, alteration of access points and changes to road function as direct consequences of the diversion of Gateway Drive.
Mr Viney expressed the following further opinions:-
(a) He disagrees with Mr Holland that the changes identified by him were significant from a traffic engineering perspective when the development is considered in context because:-
(i) The proposed activity on the subject land will not change;
(ii) The impact of the development on the surrounding and nearby roadwork will not be different in any material respects; and
(iii) The development will not cause any significant increase in traffic on any particular road or intersection.
(b) Whilst the diversion of Gateway Drive through the subject land was not directly associated with the proposed development, it improves the function of the road network in the locality in that:-
(i) The diversion will enable traffic travelling along Eumundi-Noosa Road from the east, wishing to enter Gateway Drive to use the roundabout rather than performing a U-turn manoeuvre at the Beckman’s Road roundabout further to the west before travelling east back along Eumundi-Noosa Road and turning left into Gateway Drive;
(c) Traffic flows in Gateway Drive will benefit from entry onto Eumundi-Noosa Road in a lower speed environment;
(d) The provision of directional flexibility;
(e) Avoidance of queues in Eumundi-Noosa Road on the western approach to the roundabout and elimination of the need to weave over a limited distance to the median lane to undertake a U-turn or right turn at the roundabout;
(f) Traffic operation of the Rene Street and Beckman’s Road roundabouts will be improved as unnecessary circulation on the major road network by Gateway Drive traffic will be eliminated;
(g) The alterations to the function of the road network are beneficial in that they would improve the efficiency and safety of the network with or without the proposed development;
(h) As to the change in access points, although the access from Eumundi-Noosa Road has been deleted:-
(i) The service vehicle entry point has been retained in the same location on Eumundi-Noosa Road as in the original plan;
(ii) The northern access to Gateway Drive is in the same location as in the original plan; and
(iii) The southern access to Gateway Drive has been moved approximately 40 metres to the north, which is inconsequential and will have no adverse impact on traffic operations in Gateway Drive. Further, its relocation will be beneficial in providing greater separation from the existing driveway serving the small retail centre opposite, which increased separation enables formal right turn lanes to be established in Gateway Drive to serve both the existing development and the proposed Bunnings development;
(i) As to the reduction in car parking, the original 285 car parking spaces were well in excess of the approximately 127 spaces required by the Planning Scheme;
(j) He disagreed with Mr Holland that the reduction in car parking spaces will increase the prospect of on-street parking, particularly in Gateway Drive for the following reasons;
(i) The 220 car parking spaces and eight motorcycle spaces required by Condition 32 of the Negotiated Decision is appropriate for the proposed development;
(ii) The Council traffic engineering consultant, Mr Beard, advised the Council as to the appropriate supply of spaces being one space per 35m2 of total use area and he agrees with Mr Beard;
(iii) Parking will need to be prohibited in Gateway Drive to allow the construction of central medians and right turns lanes.
(k) In summary, the differences between the original and approved plans would not be likely to cause a person to lodge a submission in respect of those differences because, from a traffic engineering perspective, those differences:-
(i) Do not materially or adversely affect the operation of the proposed development;
(ii) Do not generate any more or less traffic;
(iii) Will not materially or adversely affect any other development in the locality; and
(iv) Result in public benefit by approving the efficiency and safety of the road network in the locality.
The first issue – did Bunnings change its Development Application during the decision stage of the IDAS process so as to trigger s 3.2.9(3) of IPA?
Section 3.2.9 of IPA relevantly provides:-
“3.2.9 Changing an application
(1)Before an application is decided, the applicant may change the application by giving the assessment manager written notice of the change.
(2) …
(3)The IDAS process stops on the day the notice of the change is received by the assessment manager and starts again:-
(a)…
(b)if paragraph (a)(i), (ii) or (iii) does not apply – from the start of the information request period.
(4) However, the IDAS process does not stop if:-
(a)…
(b)the assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application.
(5)To remove any doubt it is declared that this section does not apply if an applicant changes an application in response to an information request.”
Appellant’s argument
The appellant says that Bunnings changed its development application during the decision stage of IDAS to alter the road access to the site. He argues this occurred subsequent to Council’s information request of 26 March 2007 so that the alleged change could not be said to have been in response to an information request under s 3.2.9(5) of IPA. The chronology in Schedule A shows that the approved plan came into existence after the expiry of the notification stage of IDAS, within the decision stage.
The appellant says that, as a consequence, s 3.2.9(3) was triggered and the IDAS process should have been stopped each time an amended plan of development was provided to the Council. The appellant accepts that an assessment manager may request additional information during the decision stage, but says that does not give the assessment manager and applicant a licence to change an application by stealth[9]. He says there is no warrant under IPA for an assessment manager to request changes to a development proposal in the decision stage and to then ignore the fact that those changes are changes to the application for which proper public notice is to be given.
[9] Apellant’s submissions [51]
Bunnings’ response
Bunnings argued that the provision of the final approved plan was provided pursuant to 3.2.9(5) thus removing the necessity for further public notification on the basis that the Council had given an information request of 26 March 2007 and reactivated it by a further letter of 27 September 2007.
In the alternative, it says that the plan was provided pursuant to 3.5.7(4) of IPA in the course of providing further information to the assessment manager. That section relevantly provides:-
“3.5.7 Decision making period (generally)
(1)The assessment manager must decide the application within 20 business days after the day the decision stage starts (the decision making period).
(2)The assessment manager, may, by written notice given to the applicant and without the applicant’s agreement, extend the decision making period by not more than 20 business days.
(3)Only 1 notice may be given under subsection (2) and it must be given before the decision making period ends.
(4)However, the decision making period may be further extended, including for the purpose of providing further information to the assessment manager, if the applicant before the period ends, gives written agreement to the extension.
(5)…”
The Council supported that submission.
Consideration of first issue
The appellant’s argument has, as its foundation, that Bunnings sought to change its application by giving written notice of the change to the assessment manager pursuant to IPA s 3.2.9(1). No particular form is required for such a notice except that it must be in writing. But such a notice would have to state clearly, or carry the necessary implication, that an amendment to the original development application was intended and being sought. That much flows from the clear language of the section and the consequences resulting from such a notice, namely the arresting of the IDAS process under s 3.2.9(3).
I have carefully read and considered the affidavit of Mr Holland, which is of five pages length with 1,003 pages of exhibits, starting with the Development Application moving through all stages of discussion, negotiation, correspondence and the like, and culminating in the Negotiated Decision Notice of 24 July 2009. I was particularly looking for anything which could be said to manifest a decision by Bunnings to change its application consistent with the ultimately approved plan, so as to constitute the requisite written notice under s 3.2.9(1).
As the volume of the material suggests, there were numerous detailed discussions, negotiations and correspondence between Bunnings and the Council seeking to resolve their differences. The Council made its preference for the traffic regime, ultimately reflected in the approved plan, clear from an early stage. It requested various drawings from Bunnings, designed to reflect that preference. A variety were produced, none of which, in the Council’s consultant Mr Beard’s opinion, adequately reflected the Council’s preference until the final approved plan. To my mind, those plans, prepared by Bunnings at the request of the Council, were no more than its interpretation in graphic form of the Council’s narrative in its correspondence and, in context, constituted the provision of further information in that form. Without more, they could not be said to constitute a written notice of change within s 3.2.9(1).
Very importantly, is the fact that the documentation shows that Bunnings never conceded that the condition manifested in the final approved plan was acceptable. It even went to the point of providing a copy of its legal advice, to the effect that the relevant conditions, requiring the upgrade of Gateway Drive the diversion to intersect with Eumundi-Noosa Road at the Rene Street roundabout, were unlawful as offending s 3.5.30 of IPA. This provision requires any conditions to be relevant to but not an unreasonable imposition on a development, or reasonably required in respect of the development. Bunnings sought to negotiate a position whereby it would agree to the upgrade, if agreement could be reached for an off-set to infrastructure charges. Its position was clear, that the diversion and upgrade were not necessary for the Bunnings development from a traffic perspective.[10] The Bunnings’ approach throughout the negotiations with the Council is mirrored in its present appeal against the abovementioned conditions.
[10]Holland affidavit, paragraph 725.
Context
It is important to place the extensive negotiations between the parties in context. IPA s 3.5.7(4) reflects the reality that the end of the information stage of the IDAS process does not herald the end of contact between an applicant and the Council and the provision of further information.[11] The appellant accepted that. The commercial reality is that very few, if any, development applications are approved without an information request and subsequent discussions between the applicant and the Council designed to narrow issues of disagreement.
[11]See also Ross Neilson Properties Pty Ltd v Caloundra City Council [2007] QPELR 259 at [29]
In that sense, the negotiations were no different from any other commercial negotiation where parties seek to reach an accord to avoid conflict. It is also consistent with modern Court rules governing the conduct of civil litigation which focus on identification of the real issues separating the parties, the prompt progress of the litigation with, in some cases, the medium of mediation prior to trial to assist the parties in avoiding costly and time consuming litigation.
Further, there is nothing illegitimate about an applicant seeking to progress negotiations with a Council with the view to securing an approval, albeit on conditions which may not be acceptable to the applicant. To pursue such a course accords with commonsense and the commercial realities of life. It is focussed on avoiding an appeal against a Council’s refusal of the application with the attendant risk that, in the event that any appeal was successful, a further appeal as to conditions may eventuate if conditions could not be agreed. It is but another example of narrowing issues in dispute.
As I read the conduct of Bunnings, it was focussing on obtaining an approval, agreeing conditions of that approval which it found acceptable but sidelining those which were unacceptable. In the present case, those are the ones the subject of the present appeal, including the conditions relating to the relevant upgrade of Gateway Drive. The appellant argues in support of its position that Bunnings sought a change to its application and that Bunnings was staring down the barrel of a refusal of its application unless it elected to make the changes said by the appellant to have been made.
It is true that the Council made it clear that no approval would be given based on the original plan, but the negotiations resulted in the Council providing an approval subject to conditions reflecting its traffic preference, which conditions Bunnings never accepted and are now appealing. Bunnings did not change its application. It indicated an agreement with the relevant conditions if it obtained infrastructure charge credits, with its consistent underlying position being that the conditions sought by the Council were unlawful in that they were not required for the development.
Conclusion on first argument re change of application
For the reasons I have outlined above, I am satisfied that Bunnings have established that the provision of the relevant plan, finally approved, was in the nature of the provision of further information within s 3.5.7(4) of IPA and did not constitute a written notice of change of its application under s 3.2.9(1).
The second issue - did the Council’s decision to approve Bunnings’ application result in the approval of a materially different development so as to be beyond the assessment manager’s approval power?
The appellant argues that the Council decision approving the development based on the approved plan rather than the original plan, amounted to approval of a development materially different from that which Bunnings sought in its application. He says that the assessment manager’s decision making power in s 3.5.11 of IPA is subject to an implied limitation. Relevantly, s 3.5.11 provides:-
“3.5.11 Decision generally
(1) In deciding the application, the assessment manager must:-
(a)approve all or part of the application and attach to the approval, in the exact form given by the concurrence agency any concurrence agency conditions; or
(b)approve all or part of the application subject to conditions decided by the assessment manager and attach it to the approval, in the exact form given by the concurrence agency any concurrence agency conditions; or
(c)refuse the application.
(2) …
(3) …
(4) …
(5) …”
The appellant firstly referred to Mount Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council[12] where MacPherson JA and Ambrose J said:-
“… in each instance, it is a power to approve or refuse the application, or approve it subject to conditions. Admittedly, there must be some limit on the power to approve subject to conditions; otherwise many of the detailed regulatory provisions of the Act and the protection they afford could regularly be set at nought.”
[12][1996] 1 Qd R 347 at 354-355
The appellant also referred me to the recent Court of Appeal decision of SLS Property Group Pty Ltd v Townsville City Council & Anor[13] where Keane JA, who wrote the lead judgment, noting that whilst that case was not an appropriate vehicle to explore the outer limits of s 3.5.11(1), said:[14]
“For a viable argument to arise that the cases outside s 3.5.11(1), there must be features of the development which is approved which justify characterising that development as something materially different from that which was applied for, other than the mere fact that it is part of what was applied for.”
[13][2009] QCA 380. See also Metroplex Management Pty Ltd v Brisbane City Council & Ors [2009] QPEC 110 at [141]. This case is on appeal.
[14]Paragraph [21]
The appellant relies upon this statement and the opinion of Mr Holland that the changes between the original and approved plans are significant. The appellant argues that the proposal could not have been more fundamentally altered in that the public could no longer gain access from the southern side of the development, with all public access now proposed to be provided through an industrial street, Gateway Drive. He says that the opposing opinions of Mr Beard and Mr Viney reflect that they both missed the point, as the issue is not simply a question of whether the uses on the land are the same, whether the proposal will generate the same traffic movements or whether there is an improvement for the overall roadwork. Rather, the appellant says the question, is whether the access arrangements result in a materially different development.[15] He asserts that it does, with the result that the decision of the Council was beyond power.
[15]Appellants submissions [63]
If the appellant is saying that the focus should only be on the access then I disagree with him. The question is whether, looking at the entire development, the approved plan reflects something materially different. The development, so considered, is not confined to the access to the site.
It is hardly controversial that any power of reproval in the assessment manager under s 3.5.11 will have boundaries so that any ultra vires decision, in purported exercise of the power, would be rendered a nullity. The challenge in any particular case will be to determine whether those boundaries have been transgressed by reference to the facts of the case.
Conclusion re second point
Of the evidence of the traffic engineers I prefer that of Mr Viney and Mr Beard to that of Mr Holland. Relying upon that evidence, I do not consider that the development approved is materially different from that applied for. The appellant’s argument on this issue must fail.
Third point – does the Court have power to uphold the Council’s Negotiated Decision Notice on appeal?
The appeal from which this application arises is a hearing anew under IPA s 4.1.52(1). The Court’s decision making power must be read subject to s4.1.52(2)(b), which limits that power to entertain changes to the development application that are minor only. That section relevantly provides:-
“4.1.52 Appeal 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:-
(a)…
(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.”
The appellant argues that the court lacks the power to entertain the appeal in relation to the approved application because that would involve considering an application different from that made, and which involves changes other than minor changes.
It was common ground that, despite the application of IPA to other aspects of this matter, that is qualified by s 821 of SPA which relevantly provides:-
“(2)for deciding the appeal, repealed IPA, section 4.1.52(2) applies:
(b)as if the reference in the repealed IPA, section 4.1.52(2)(b) to a minor change where a reference to a minor change as defined under this Act.
Minor change is defined, relevantly, in s 350 of SPA in these terms:
“(1)A minor change in relation to an application, is one of the following changes to the application:-
(a)…
(b)…
(c)…
(d)A change that:-
(i) does not result in a substantially different development; and
(ii) …
(iii) …
(iv) ….”
On the concept of the substantially different development, Statutory Guideline 06/09 dated 11 December 2009 was published pursuant to s 759(1)(c) of SPA. It relevantly provides:-
“The purpose of this guideline is to assist applicants and assessment managers to determine if a proposed change to a development application or development approval would result in a substantially different development.
…What constitutes a substantially different development?
Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would therefore not be a minor change or a permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change would result in a substantially different development and is not intended to be exhaustive.
A change may result in a substantially different development if the proposed change:
●involves a new use with different or additional impacts;
●results in the application applying to a new parcel of land;
●dramatically changes the built form in terms of scale, bulk and appearance;
●changes the ability of the proposal to operate as intended.
For example, reducing the size of a retail complex may result the capacity of a complex to service the intended catchment;
●removes a component that is integral to the operation of the development;
●significantly impacts on traffic flow and transport networks such as increasing traffic to the site;
●introduces new impacts or increases the severity of known impacts;
●removes an incentive or offset component that would have balanced a negative impact of the development;
●impacts on infrastructure position, location or demand.”
Mr Williams, counsel for the appellant, submitted[16] that little turns on whether there is a difference between the meaning of “materially different”, as used by Keane JA above, and “substantially different” having regard to the facts of this matter which do not call for a construction of those respective wordings. I agree. Consistent with my finding that the development approved is not materially different from that applied for, I am satisfied that the changes were minor. It follows that the Court has power to approve the development approved by the Council in its Negotiated Decision Notice.
[16]Transcript 1.63.42.
Other matters
I should mention two other matters. On the first day of the hearing Bunnings filed an application for, inter alia, a declaration that, in the events which have happened, the decision contained in the Negotiated Decision Notice dated 24 July 2009 given by the first respondent counsel to the applicant Bunnings is valid. It will be apparent from this judgment that I have found no irregularity in the decision making process so am of the view that no declaration is necessary. However, I shall hear further argument on the matter if the parties wish.
The second matter is the question of costs relating to the referral coordination issue raised by the appellant but abandoned on the first morning of the hearing. Mr Gore QC, for Bunnings, asked that the question of costs thrown away by Bunnings be reserved, which I think is an appropriate course. It was not opposed by the appellant.
The order
The order of the Court will be:-
The appellant’s application in relation to all preliminary issues is dismissed;1.
The appeal should proceed to determination on its merits;2.
The question of the costs thrown away by Bunnings in relation to the referral coordination point issue be reserved; and3.
4. Liberty to apply.
SCHEDULE A
Chronology
1.
12 February 2007
Development Application lodged.
2.
26 March 2007
Letter from Noosa Council to Bunnings seeking further information.
Paragraph 9.3 sought, additional to the road reserve widening in paragraphs 9.1 and 9.2, an appropriate truncation on the corner of Gateway Drive and Eumundi Noosa Road.
Para 18.4 said that the Eumundi Road and Rene Street roundabout should be upgraded to provide 2 circulating lanes with a central island diameter of not less than 23 metres.
3.
1 August 2007
Letter from PMM on behalf of Bunnings to Noosa Council, responding to request of 26 March 2007, advising the response was a full information request response, requesting the Council to move forward with the determination of the Development Application and advising that Bunnings would now commence public notification.
Bunnings’ response to the abovementioned paragraph 9.3 was to provide Plan 1096-038 Amd.No. B which still provided for access from the Eumundi Noosa Road/Rene Street roundabout.
In relation to paragraph 18.4 of the Council letter of 26 March 2007, Bunnings advised that it proposed to provide the necessary road upgrades to the Eumundi Road and Rene Street roundabout in accordance with an enclosed report from its traffic experts, TTM.
Paragraph 18.4 of that report advised that it was proposed that Bunnings would construct the subject roundabout to standards described in AustRoads Part 4 which specified an inner island radius of 12 metres with a 10.3 metre circulating lanes attached plan.
4.
4 September 2007
Letter PMM to Noosa Council notifying compliance with Public Notification requirements of IPA.
5.
27 September 2007
Letter from Noosa Council to Bunnings detailing additional issues to be addressed, relevantly, that the Bunnings’ current proposal for the Eumundi Road/Rene Street roundabout was not satisfactory. The Council considered that the optimal size for the roundabout’s central island diameter was 28 metres and not the 24 metres proposed by Bunnings.
6.
6 November 2007
Letter from PMM to Noosa Council responding to Council letter 27 September 2007, enclosing details traffic response prepared by TTM Traffic.
Paragraph 18.4 advised that it was proposed that the applicant/developer would construct the Rene Street/Eumundi Road roundabout to standards prescribed in AustRoads Part 4.
7.
20 December 2007
Email from Colin Beard to Tracy Arthur, Michael Hagan and Kerri Coyle, attaching his response to TTM submission. Relevantly, Beard says:
“The bottom line is:
…
Development of the Bunnings site as some sort of service industry would generate more problems, but they could be mitigated by a direct connection between Gateway Drive and the Rene Street roundabout.
…”
7.
23 January 2008
Meeting between Bunnings and the Council representatives to discuss, inter alia, traffic issues. The handwritten notes of that meeting contains the following notations:-
“Divert Gateway Drive to Rene St roundabout may help traffic issues.
- Can Bunnings link to Rene St roundabout?
- Council will refuse if traffic can’t be solved.”
8.
13 February 2008
Email from Simon Forsyth (PMM) to Kerri Coyle, Noosa Council enclosing response by TTM Traffic Consultants, dated 12 February 2008 (sic) responding to issues raised at meeting with Council on 23 January 2008. That letter concluded:-
“Based on the investigations TTM concludes that there would be only minor intersection operating improvements at the Renee Street/Eumundi Road intersection if Gateway Drive was to be realigned to intersect Eumundi Road opposite Renee Street. These gains would be distributed to the Eumundi Road approaches and would arise primarily as a result of eliminating U-turns at the intersection generated by traffic moving to and from Gateway Drive. These U-turns would be distributed to the Gateway Drive approach to the intersection, thereby causing a significant increase in degree of saturation in that approach, albeit that the operating degree of saturation is within acceptable limit.
Notwithstanding that the investigations indicate only minor gains (my emphasis) for Eumundi Road in the context of existing traffic volumes and completed development in the area served by Gateway Drive and Venture Drive, experience and logic supports the Council hypothesis that the overall major road network may operate more efficiently if the Gateway realignment was to accompany an extension of Renee Street to the south. Area-wide network analysis is required to establish the full extent of such efficiency gains. However, a road network analysis to that extent is beyond the resources and responsibilities of the developer (my emphasis.”
9.
7 March 2008
Email S Forsyth (PMM) to Colin Beard; Kerri Coyle (Council) attaching plan showing “link road” connection from Gateway Drive to the Noosaville/Eumundi Road roundabout and said to achieve the outcome sought by the Council.
10.
8 March 2008
Email Colin Beard (Council Engineer) to S Forsyth, advising plan sent by email 7 March was unsatisfactory in several respects.
11.
20 March 2008
Email Simon Forsyth to Kerri Coyle and Colin Beard enclosing revised plan addressing matters raised in Beard’s email 8 March 2008 above.
12.
26 March 2008 – 30 March 2008
Various emails between the parties discussing design details.
13.
10 April 2008
Email S Forsyth to Colin Beard, attaching further amended drawing of Noosaville/Eumundi Road roundabout – Plan No 1096 – 030 AMD. No. G.
14.
14 July 2008
Council Decision Notice advising preliminary approval of application subject to conditions.
Conditions 22 and 23 provide:-
“Roadworks – Intersection Construction
22. The applicant shall upgrade the Rene St/Noosa Rd roundabout and provide a new road reserve generally in accordance with the amended plan required by the conditions of this Preliminary Approval and to Council standards for Arterial Roads.
23. The applicant shall modify Gateway Dve in accordance with the amended plan required by the conditions of this Preliminary Approval.”
Condition 26 provided:-
“Vehicle Access
26. The vehicular accesses to the development shall be located generally as indicated on BMD Consulting Drawing No. CBD-0849-F01 Rev. B dated 10 April 2008, except if relocation is required as a result of the amended external roadworks plan.”
15.
10 September 2008
Letter Conics on behalf of Bunnings to Council enclosing letter of advice from Bunnings’ solicitors, Deacons, dated 8 September 2008 advising, relevantly, at paragraphs 5, 9 and 10 that Conditions 22 to 24 of the Council’s Decision Notice of 14 July 2008 were unlawful. Those conditions dealt with the upgrade of the Rene Street/Eumundi-Noosa Road roundabout, the provision of a new road reserve and the modification of Gateway Drive in accordance with the amended plan required by the conditions of the Decision Notice.
The letter also advised that, despite the advice of Deacons, Bunnings was prepared to undertake such works to achieve a quality development outcome and assist Council in achieving improvements to the overall road network but requested that those works be offset against any infrastructure charges. It sought the replacement of Conditions 22 to 24 with the following condition:-
“The applicant shall upgrade the Rene Street-Eumundi Noosa Road roundabout and modify Gateway Drive in accordance with the approved plans of development. Any works undertaken in this regard shall be offset against the infrastructure charge (Advisory Note 2) for Coastal Major Road Network.”
16.
6 November 2008
Email S Forsyth to Kerri Coyle (Council) enclosing:-
(a) Conics letter 3 November 2008;
(b) TTM Report to Bunnings’ solicitors 4 November 2008.
The letter said in part:-
“In summary our response illustrates that the diversion of Gateway Drive to the Rene Street roundabout, whilst creating a better network outcome for traffic in the Noosaville area, is not required as a result of the Bunnings development. The analysis undertaken by TTM Consulting and Viney Traffic Engineering clearly identifies this outcome.
Given the above, Bunnings still does not consider that the construction of the Gateway Drive diversion to the Rene Street roundabout is a reasonable or relevant imposition on the Development Approval. However in an effort to move closer to our client’s position, we ask that the Negotiated Decision Notice be issued with a reworded Condition 22, that whilst requiring the construction of the Gateway Drive diversion to the Rene Street roundabout, facilitates the offset of the costs of these works against infrastructure charges levied over the land, by way of an infrastructure agreement.”
The enclosed TTM Traffic Analysis dated 4 November 2008 concluded:-
“Our analysis and findings indicate that a deviation of Gateway Drive to intersect with Eumundi-Noosa Road at the Rene Street roundabout would have only a minor positive effect on the operation of the intersection. The magnitude of the effect is nearly identical in scale regardless as to whether the Bunnings development proceeds or not.
We conclude that the deviation of Gateway Drive is of little or no relevance to improving the operation of the Eumundi-Noosa Road/Rene Street roundabout or responding to the traffic generation effects of the Bunnings development. However, we do hold the view (based on past analysis and compelling logic, that the Gateway Drive deviation would have wider road network operational advantages which are unrelated to the proposed Bunnings development. These advantages would arise from the reduction in existing U-turn movements which the left-in/left-out arrangement of Gateway Drive at Eumundi-Noosa Road generates at the only roundabout controlled intersections in Eumundi-Noosa Road to the east and west of the Rene Street roundabout.”
17.
24 November 2008
Email Kerri Coyle to PMM. This email advised that the drawings of the subject roundabout were still not satisfactory. It set out matters of design in support of that view.
18.
16 January 2009
Email S Forsyth PMM to Kerri Coyle – Council. New drawings addressing Council’s concerns in email of 21 November 2008.
19. 24 July 2009 Council Negotiated Decision Notice advising preliminary approval for material change of use – Bunnings Warehouse which advised, relevantly, of the amendment of Clause 22 of the Decision Notice of 14 July 2008 and deletion of Condition 24 of that Notice. The relevant plan approved was 1096 030 Amd No. P7.
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