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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPEC 1
Case: [2012] QPEC 1
Decision Date: 24/01/2012

CaseChat Overview and Summary

Scanlon Property Group Pty Ltd sought to change a development approval for a mixed-use development that included residential and other uses, which was granted by the Court after an appeal against the Sunshine Coast Regional Council's initial refusal. The applicant requested several changes to the approval, including alterations to the commercial building, an extension to the landscaping area, and the addition of outdoor dining areas and juliette balconies. The Council opposed the changes, citing concerns about amenity impacts, particularly the outdoor dining and the balconies.

The court considered whether the requested changes constituted a permissible change under section 367, which requires that the change must not result in a substantially different development and must not be likely to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed. The court noted that the applicant had not tested the potential objections by showing the report to those who expressed concern, and the report only specifically referred to the outdoor dining and did not contain an analysis of the balconies.

The court concluded that it was unlikely that the other changes would provoke someone to make a properly made submission objecting to those aspects of the changes, and that they did not result in a substantially different development or otherwise fall outside the parameters of a permissible change. The court was 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.

The court ordered that the applicant's request to change the development approval be granted in part, with the changes to the commercial building, the extension to the landscaping area, and other changes to be implemented. The court deferred consideration of the balconies and outdoor dining areas until further material was provided to address the concerns raised by the Council.

Orders