Scentre Group Limited v Moreton Bay Regional Council

[2018] QPEC 4

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Scentre Group Limited v Moreton Bay Regional Council and Another [2018] QPEC 4

PARTIES:

SCENTRE GROUP LIMITED

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

and

HOME INVESTMENT CONSORTIUM COMPANY PTY LTD

(Co-Respondent)

FILE NO/S:

3852 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

23 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2018

JUDGE:

Rackemann DCJ

ORDERS:

That the matter proceed on the basis of the amended proposal.

CATCHWORDS:

PLANNING AND ENVIRONMENT – final order disposing of appeal sought by both parties - change application – whether minor change – material change of use for retail showrooms – change sought from GFA of 8,500 square meters to GFA of 13,813 square meters – where plain from the application documentation that the proposal was always to authorise the use of the whole of the 13,813 square meters for retail showrooms.

SOLICITORS:

R Bowie, Minter Ellison for the appellant

R Duhig, Moreton Bay Regional Council for the respondent

M Connor, Connor O’Meara for the co-respondent

1. The parties in this matter have invited the Court to make a final order disposing of the appeal in a way which would see the appeal allowed in part and the development application approved, subject to conditions.  The parties, however, wish the matter to proceed on the basis of a changed application and the Court can only allow that to happen if it is satisfied that the change is only a minor change. 

2. The development the subject of the application is a material change of use for retail showrooms.  It relates to what was once a Masters hardware store.  The total GFA of the retail showrooms is intended to be 13,813 square metres.  The application as made, however, was only for 8,500 square metres.  The change, which the parties seek to persuade the Court is only a minor change, is to change the retail showrooms sought from 8,500 square metres to 13,813 square metres.  On the face of it, that would seem to be a significant increase and one which the Court would be slow to accept as a minor change.  The circumstances, however, are somewhat unusual. 

3. Reference to the application documents show that it was always the intention that, as a result of the subject development application, if approved, the building would be able to be used for a total of 13,813 square metres of retail showrooms.  The reason the subject application was only, in terms, for 8,500 square metres of showrooms is because there was a separate council approval for use of part of the building for retail showrooms.  It was thought that only an additional amount of 8,500 square metres was required for approval in order to facilitate the whole of the building being used for 13,813 square meters of retail showrooms. 

4. Anyone looking at the development application documentation, including the reports and plans lodged in support of that application, would readily have seen the intention to achieve use of the entirety of the 13,813 square metres of GFA for retail showrooms.  As it happens, the council’s approval was subject to conditions which proceeded on the basis that the approval was for a development for the full extent of the use across the whole of the building.  In that regard, one of the conditions restricted the total gross leasable floor area of the premises to 11,447 square metres, which relates to 13,813 square metres of gross floor area. 

5. There was only one submitter in respect of the subject development application.  That submitter is the appellant and the proposed course of action, to amend the subject development application, arises out of concerns raised by the submitter/appellant that the strategy of relying upon the two separate development approvals to authorise the use across the whole of the building may be defective, in that the first approval in time, which limits the retail showroom use to a lesser area, may not be able to stand with a later approval which purports to be for the balance of the retail showroom use.  The purpose of the change is simply to ensure that the entirety of the use is, as it has always been proposed, authorise in the one approval in order to obviate any concern about ambiguity or inconsistency, as between the approvals. 

6. In circumstances where it was plain from documentation lodged in support of the application that the proposal, in substance, was always to authorise the use of the whole of the 13,813 square metres of the building for retail showroom, it seems to me that the change which is now sought can properly be said to fall within the bounds of a minor change and, accordingly, I direct that the matter proceed on the basis of the amended proposal.