Popov v Tablelands Regional Council

[2010] QPEC 23

[2010] QPEC 23

PLANNING AND ENVIRONMENT COURT

JUDGE EVERSON

P & E Appeal No 199 of 2009

ALEXANDER POPOV	Applicant
and
TABLELANDS REGIONAL COUNCIL	Respondent

CAIRNS

..DATE 08/03/2010

CATCHWORDS

PLANNING – PLANNING LAW – changes to application – whether minor – section 4.1.52(b)of the Integrated Planning Act 1997 – or a substantially different development – section 350 of the sustainable Planning Act 2009.

JUDGMENT

HIS HONOUR: This is an application seeking a declaration that proposed changes to the development application are only minor changes pursuant to section 4.1.52 of the Integrated Planning Act 1997 ("IPA").

As a consequence of section 821 of the Sustainable Planning Act 2009 ("SPA") the reference to "minor change" in section 4.1.52 of IPA is taken to be a reference to a minor change as defined in the SPA. The meaning of "minor change" is set out in section 350 of the SPA. One of the requirements is that it be a change that "does not result in a substantially different development". (S350(1)(d)(i))

The development which is the subject of the development application giving rise to this appeal describes the proposal as being "Clubhouse for Musicians".  The proposed development was publicly notified as "indoor entertainment facility - a facility to teach young musicians to play in front of a live audience".

The development application was accompanied by a letter under the hand of the appellant dated 9 October 2008 which was placed on the public notification file.  It was addressed to the CEO of the respondent and was in the following terms:

"The Music Club, Provides, Teaches and Organises [sic] all musically minded people, over 18 and under 18 year olds.

It Provides a venue, equipment and administration.  It Teaches, bands and individuals, sound and lighting.  It Organises Musical events, fundraising events and private parties.

The Venue will be used to teach musicians to perform in front of a live audience.

The 18 year olds will be encouraged to learn how sound and lighting is best used to help their performance.

Thank you and waiting your reply."

What is now the subject of the application before me is an approval for indoor recreation activities which include:-

"a.  The Music Club;
      b.  Private Music Tuition;
      c.  School vacation activities for children;
      d.  Community Bingo (likely to be once a month);
      e.  Pool table and pinball machines;
      f.  Venue hire; and
      g.  Karaoke."

Whereas the original proposed hours of operation were Monday to Friday from 4 p.m. to 9 p.m. and Saturday and Sunday from 12 noon to 10 p.m., the appellant now seeks an approval permitting these activities from 10 a.m. to 10 p.m. seven days per week.

It is necessary to determine the nature of the development proposed by the development application in order to determine whether what is now proposed is a substantially different development.

What was originally proposed was the use of the premises as a clubhouse for musicians, with a particular focus on teaching young musicians to play in front of a live audience.  This is gleaned from a reading of not only the application, but also the public notification of it.

It is confirmed by a reading of the covering letter, dated 9 October 2008, which specifically differentiates the activities of the music club from the proposed use of the building, the subject of the development application.  The building is referred to in the covering letter as "the venue" and the proposed use of the venue is described as "to teach musicians to perform in front of a live audience".  That the music club also organises musical events, fundraising events and private parties is not necessarily relevant to the use of the building, the subject of the application.  There is nothing in the application or in the covering letter which links these additional activities to the venue.

I am therefore of the view that the additional indoor recreation activities, which are now sought to be the subject of an approval from this Court, are such as to include activities which amount to a substantially different development.

School vacation activities for children for the extended hours that are now proposed, community bingo, a pool table and pinball machines and venue hire, in my view, are substantially different uses to those encompassed on a reading of the development application and the accompanying documentation. It therefore follows that the changes to the extent they encompass these activities and, in particular, these activities for extended hours, are not minor changes pursuant to section 4.1.52 of IPA.

HIS HONOUR:  I declare that the changes are not minor changes and I adjourn the matter to 12 April 2010 for review.

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