Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council (No 2)

[2012] QPEC 5

[2012] QPEC 5

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 419 of 2012

SCANLON PROPERTY GROUP PTY LTD	Applicant
and
SUNSHINE COAST REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 10/02/2012

..DAY 1

ORDER

HIS HONOUR:  This is a further application to amend a development approval.  An order was made by me recently granting certain amendments.  At that time I was asked to make a series of amendments to the approval which would permit some alterations to be made to the building which is contemplated.

At that time I was prepared to make a number of those changes.  However, I indicated that I was not, at that stage, prepared to grant two of the changes that were sought.  They related to the inclusion of some outdoor dining areas and also the inclusion of some juliette balconies to the accommodation.

In not being satisfied I was conscious, in particular, of the provisions of section 367 as to the definition of "permissible change" and, in particular, subsection 1(c) which calls upon me to form an opinion as to whether the changes would be likely to cause a person to make a properly made submission objecting to the proposed changes if the circumstances allowed.

As I commented last time that judgment or opinion often needs to be formed in circumstances where the Court does not have before it material from any of those who might be potential objectors.  In the case of the previous application, however, I did have before me correspondence from people who said that they would wish to object, in particular to those aspects of the changes.

In the circumstances I was not able to be satisfied that those changes would not be such as to cause a person to make a properly made objection if the circumstances allowed.  This further application is a further attempt to get an approval for those two changes. 

In order to bolster the application the applicant has obtained a further report from a noise consultant, Mr Paul King.  Mr King has measured the ambient noise levels on a relatively quiet evening.  Unsurprisingly, he found that there was an ambient noise level which was relatively constant and then an LA10 noise levels which fluctuated above the background.  Those LA10 figures, or what may be regarded as the more intrusive noises, are associated with traffic.

Against that background he looked at what would be the likely noise levels as a result of the development contemplated by the changes.  In order to decide whether there would be a noise annoyance he looked at whether the noise likely to be generated from the proposal would achieve a level at the nearest residence of more than five dBA above the ambient.  He used previous studies to make an assumption about what the source noise level would be for people in the dining areas and reached a conclusion that the noise level within the eastern outdoor dining area would be acceptable up to 10 p.m. and that the noise from the outdoor dining areas would be acceptable to midnight.

He also looked at the additional noise from balconies and, on the basis of certain assumptions about what the use of those balconies would be, given their small size, reached the conclusion that they would not be likely to result in adverse noise impacts.

That report was provided to those who had previously indicated a willingness or a desire to make an objection if the circumstances allow, in order to see whether that placated their concerns.  Unfortunately, the material was provided only a matter of six days ago, which is not a realistic time frame within which to expect unsophisticated people to receive, to absorb and to become comfortable with such information.

Somewhat unsurprisingly in those circumstances, which the applicant has called upon themselves by the haste with which they brought this matter on after serving the material, the people who previously indicated a desire to have an opportunity to make an objection have again indicated such a desire, notwithstanding the further report.

It must be said, as Mr Ure pointed out, that to some extent the matters which they express concern about are evidently misplaced or irrelevant in relation to the changes sought.  For example, they complain about some changes to the internal aspects of the building, which is something to which I gave approval last week, so it is not one of the changes now being sought.  The statutory provision should be read as requiring the entity to consider whether someone would make a properly made submission objecting to the proposed change on a relevant basis, at least.
The correspondence that has been received, however, in addition to indicating that they have not been able to properly absorb the material, indicates some continuing opposition to the changes on the basis of possible noise impacts.

In so far as the report of Mr King is concerned, matters which remain of some concern to those who would wish to have the opportunity to object include the difficulty of enforcing differential closing times for different areas, the nature of the noise and its difference from the noise which characterises the ambient conditions albeit that there are some other entertainment venues in the area and the noise from diners departing the restaurant.  Of course, diners will depart from the restaurant at night-time whether there is outdoor dining or not, but the outdoor dining provides for additional patrons.

These concerns were addressed in submissions by Mr Ure by reference to the further report of Mr King.  It should be acknowledged that, given the limited opportunity which people have been given to assess the report, it might be that there would be other areas with which issue may be taken, including as to the assumptions that have been made about the likely source noise level and about the assumptions Mr King has made about the use of the balconies.

If I was deciding the matter today as a matter of merit then Mr King's report would support an approval.  However, the question I must ask myself is not whether I would be prepared to approve a development in the amended form if this were the only material available to me upon the hearing of an appeal, but whether in the circumstances, in light of the material before me, I can form the opinion that the changes would be unlikely to cause a person to make a properly made and, I interpolate, relevant submission objecting to the proposed changes if the circumstances allowed.

In light of the material that has been received from those who say they wish to have that opportunity and having regard to the at least relevant grounds that are included in their material I am not satisfied that the changes would not be likely to cause a person to make a relevant submission objecting to the proposed changes.  Of course, if things change the Applicant can always make another application.

This application is dismissed.

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