Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council

[2012] QPEC 1

[2012] QPEC 1

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 4783 of 2011

SCANLON PROPERTY GROUP PTY LTD (ACN 125 864 360)	Appellants
and
SUNSHINE COAST REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 24/01/2012

JUDGMENT

HIS HONOUR:  This proceeding, in form, seeks declarations and
other orders, but in substance, is a request to change a
development approval pursuant to section 369 and I have been
informed that the solicitors for the applicant will file an
amended application to reflect that.

The development approval sought to be changed is a development
permit for a material change of use to facilitate what might
conveniently be referred to as a mixed use development,
including residential and other uses.  The development permit
was granted by the Court as a consequence of an applicant
appeal against the Council's initial refusal of the
application and it is to the Court that the request to change
must be made.

The applicant now wishes to change the approval.  The changes
which it seeks are set out in paragraph 4 of the written
submissions of the applicant.  They include changes in order
to facilitate the staging of the construction, alterations to
the commercial building - which will be in stage 1 - to
increase car parking, to introduce a goods hoist, to redesign
a central turn-around island, to extend a landscaping area, to
provide two areas of outdoor dining, which comprise in total
70 square metres, notations about air-conditioning, the
addition of a storage area, some minor changes to the internal
layout of the first floor level, a reduction in the reception
and office staff area, conversion of the internal kitchen on

the first floor level, the addition of juliette balconies to
the front and rear of the buildings and an amendment to the
stormwater plan.

A request may only be made for a permissible change as defined
in section 367.  If the request for a change is a permissible
change, then the responsible entity for deciding the request - which, in this case, is the Court - has a discretion under section 375 to approve the request with or without conditions, or to refuse the request.

A permissible change is defined in section 367.  Relevantly, it includes requirements that the change must not result in a
substantially different development, and for a case such as
this where impact assessment was previously required, the
change must not be likely to cause a person to make a properly
made submission objecting to the proposed change if the
circumstances allowed.

It is not always easy to rule out the possibility that any
change might provoke an objection.  That is particularly so
because it is rare for the Court to have material from
particular prospective submitters. In those circumstances, the Court is called upon to assess the relevant likelihood on the balance of probabilities and on the assumption that those who might otherwise have had the opportunity of making a submission objecting to the change would make their decision as to whether to do so or not on a reasonable basis.

In this case, however, the Court does have material which
evidences a level of opposition from those who, it would seem,
may wish to make a submission objecting to the change, or
aspects of it, if circumstances allowed.

The Council placed before the Court Exhibits 3 and 4.  Exhibit
3 is a letter from the Secretary of the Peregian Beach
Community Association Inc.  It opposes the variations,
particularly in relation to the outdoor dining component, but
is not limited to that change.

Exhibit 4 is an email from someone who was a co-respondent in the appeal which resulted in the initial approval.  She takes particular objection to the proposal to include outdoor dining and East-facing balconies.  She complains of excessive noise already coming from the nearby hotel at night.  She also opposes an extension to the relevant period for the purposes of lapsing, on the basis of the opportunity the developer has already had.

It was submitted on behalf of the applicant that the concerns
about amenity impacts from outdoor dining are not well placed.
In this respect, the report from Mr King, a respected
environmental consultant, was placed before the Court.  That report acknowledges that, in terms of noise amenity impacts,
outdoor dining areas generate noise, primarily from voices and
general noise from movement of chairs and associated items,
but goes on to conclude that the proposed outdoor dining would
be acceptable in this case.
I am not in any way critical of Mr King's work; however, the
question is not whether the change would cause a person to
make a submission which would ultimately be upheld in the
sense of leading to a refusal on the merits, but rather whether the change would cause a submission objecting to the changes to be made. 

It is possible, speaking hypothetically, that the work that Mr King has now done may mollify potential objectors such that they would not make a submission opposing the change.  However, the applicant at this stage has not tested that by means of showing the report to those who say they are concerned.  Further, the report only specifically refers to the outdoor dining and does not contain an analysis of the balconies. 

For those reasons, I expressed today a concern about those two
elements of the changes.  Having done so, counsel for the
applicant asked me to consider the other changes today and to
defer that part of the application which seeks those additional changes.

In so far as the other changes are concerned, I have already
acknowledged that the material from those who say they are
concerned put their opposition more broadly than just the
outdoor dining and the balconies.  However, their objection to
some of the detailed changes is not referred to at all.  It is
difficult to believe, for example, that changes to engineering details would or could be the subject of any objection.
Further, in so far as the extension of the currency period is
concerned, for example, the concern seems to be on the basis
that the developers had had long enough. 

I am mindful that in raising these concerns the potential submitters do not seem to have had reference to the material which I now have before me which discusses those changes and the reasons for them.  In my view, on reflection, having the benefit of that material, it is unlikely that those other changes would provoke someone to make a properly made submission objecting to those aspects of the changes.  I am also satisfied that they do not result in a substantially
different development or otherwise fall outside the parameters
of a permissible change and so I am prepared to make those
other changes or make an order reflecting those other changes
and to otherwise defer the consideration of the balconies and
outdoor dining.

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