Sherringham Holdings v Maroochy Shire Council

[2000] QPEC 87

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Sherringham Holdings Pty Ltd & Anor v. Maroochy Shire Council & Ors [2000] QPE 087
PARTIES:	SHERRINGHAM HOLDINGS PTY LTD (ACN 010 153 009) AND INTERPLAN CONSULTANTS PTY LTD (ACN 079 438 743) Applicants and MAROOCHY SHIRE COUNCIL Respondent and KAHUNA BEACH PTY LTD (TRUSTEE) (KEN HICKS & ASSOCIATES) Second Respondent and JOHN STEPHEN HILL in business as SUNCOAST BUILDING APPROVALS (A FIRM) Third Respondent and NEATREACH PTY LTD (ACN 066 496 820) Fourth Respondent and P J. BURNS PTY LTD (ACN 010 950 160) Fifth Respondent
FILE NO/S:	Appeal No 30 of 2000
PROCEEDING:	Application for Declaration
DELIVERED ON:	22 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 December 2000
JUDGE:	Judge Brabazon Q.C.
ORDER:	Declare that the material change of use of the land, to shops, is code assessable. Adjourn application for further consideration.
CATCHWORDS:	BUILDING CONTROL &TOWN PLANNING – Planning scheme –whether development self-assessable or code- assessable – construction of Maroochy Plan.
COUNSEL:	Mr J Haydon for the applicants Mr C Hughes for the first respondent Mr S Ure for the second - fifth respondents
SOLICITORS:	Lestar Manning Lawyers for the applicants Legal Services, Maroochy Shire Council for the first respondent Swanston & Associates Layers for the second - fifth respondents
JUDGMENT

1. The P J Burns Building has recently been completed. It is at 679 David Low Way

   Pacific Paradise in the Maroochy Shire.. It is a two storey building. Downstairs, a

   pharmacy and hairdressing salon have opened. There is also a medical centre on

   the ground floor, and there are professional offices on the first floor.

2. A controversy has erupted, as to whether or not the pharmacy and the hairdressing

   salon are lawful users of the building. The applicants here, and the Maroochy Shire

   council, say that they are there unlawfully, as necessary town planning approvals

   have not been obtained. The other parties all joined in saying that the uses are

   lawful, as no town planning approval is required.

3. The site (Lots 494 and 495 on RP91398) now amalgamated into Lot 10 on SP

   132075 has town planning approval for Professional Offices. That approval was

   granted under the former planning scheme. The new Maroochy Plan came into force on 1 June 2000. Because of the provisions of the Integrated Planning Act

   1997, the town planning consent continues in force under the new planning scheme.

4. On 10 January 2000 a building plan was approved for construction, and a

   development permit was issued. The permit referred to construction of the building

   for office use. Work began. The developers of the building wanted to use it for a

   medical and dental centre, including a pharmacy. They thought they had to ask for

   town planning approval. They lodged a development application on 19 April 2000.

   On 8 August 2000 the council approved the development application in part, by

   allowing the medical and dental centre, but refusing the application for a pharmacy.

5. The developers then were advised that there was no need to trouble about planning

   approval in any case, because it was not needed. They asked that the development

   approval be cancelled. On 3 October 2000, the council agreed, and it was cancelled.

6. The developers then proceeded on the basis that the use of their building, to include

   a pharmacy, was permitted as a self-assessable development. By September 2000,

   the building was near to completion. They realised that some changes could be

   made to the ground floor which involved no building work, or only minor building

   work. No operational work was involved. The result was the completion of the

   building with two shops on the ground floor. They have been occupied by a

   pharmacist and a hairdresser. The question here is – was it right to think that such

   developments were self-assessable? If not, should there be a code assessment, or an

   impact assessment?

7. It is common ground that such changes of use are material. It is common ground

   that the new uses are “shops” as defined on page 32 of the Maroochy Plan. It is

   also common ground that the changes have to be considered under the provisions of

   the Maroochy Plan.

8. The building is within Planning Area No 9 – the North Shore. It is in precinct No

   10, which is called Pacific Paradise (Neighbourhood Residential). Any

   development has to be in accordance with the requirements of Table 5.2, which

   applies to residential precincts. The development of a “shop” may be either self-

   assessable (if column 1 applies) or code assessable (if column 2 applies). The

   possibility of code assessment, because of column 2, can be immediately dismissed.

   That is because it refers to development in “an existing, or approved future local

   centre … ” It is clear that this land is not in an existing or approved local centre.

9. The Maroochy Plan shows that there are four types of precincts, each of which is

   described as “a centre”. One type is a Local Centre. In fact, immediately across the

   David Low Way from this building is a Local Centre, called The North Shore

   Centre. There is also a definition which deals with development in such centres.

   The expression “existing or approved future local centre” means

   “land in a Centre precinct, or where in any other precinct;

.	land developed for commercial and/or community use and recognised as a Centre in the statement of desired character for the precinct in which the land is situated or
.	land approved for Centre use in a Local Area Structure Plan, Plan of Development or Preliminary Approval.”

1. It was not suggested during the hearing, that this building was in an approved future

   local centre. The possibility of code assessment under column 2 is not present here.

2. Since column 2 does not provide for code assessment, then close attention has to be

   paid to column 1. The starting point is to note the condition for self-assessment to

   apply – “where the change in use involved no building work, or only minor

   building work, and no operational work”.

3. It is clear that the condition is satisfied in this case. There has been only minor

   work done, when the building was almost complete, and there was no operational

   work. That conclusion depends on the definition of “minor building work”, which

   means building work:

(a) to which the provisions of the Building Code of Australia do not

apply; or

(b) which results in an increase in gross floor area of an existing

premises by no more than the lesser of 50 metres square or 10% of

the existing gross floor area.

1. As the gross floor area of the building was not altered, it appears clear that this was

   “minor building work” as defined. That alternative part of the definition is

   satisfied. That being so, it is unnecessary to consider whether or not the Building

   Code would apply – it was confidently asserted from the bar table, on the evidence

   here, that there was no need for the building application, in any event.

2. So far, it would appear that the material change of use, to shops, is self-assessable,

   because of column 1. However, Table 5.2 is subject to the provisions of sections

   4.2 to 4.8 of the same volume of the planning scheme – see the note on page 51.

   Section 4 sets out general provisions in relation to Code Assessable Development.

   It provides that code assessment is required for –

   “Development which would be self-assessable except that it does not apply with the relevant Acceptable Measures of each applicable

code” (c) 4.7(3)(a)

1. Therefore, it is necessary to see if there is a code, and whether or not there is

   compliance with the relevant acceptable measures. That is a question which seems

   to have caused some controversy.

2. The controversy arises this way. Para 5.2 of the Planning Scheme provides a Code

   for Local Centres. If one turns immediately to the element of site suitability, it can

   be seen that one essential acceptable measure is A2.5 –

   “A local centre is located more than 800 metres from any other local

   centre.”

   Now, this building is across the road from the The North Shore Centre. There

   cannot be compliance with that measure. But, is it clear that the code in para 5.2

   applies? It was submitted on behalf of the council that it did apply, so that code

   assessment was required for this material change of use. On the other hand, it was

   submitted by the developers that it did not, so that it had no impact at all on their

   changes of plan.

3. It appears from a reading of the planning scheme that the concept of a centre, or

   local centre has somewhat different meanings in different places. First, there is the

   idea of a Local Centre, which constitutes a precinct. See para 4.1 (3). In this case,

   the North Shore Centre is a local centre, in that sense.

4. It can be seen that the definition of “existing or approved future local centre” means

   land either in a centre precinct, or in any other precinct, if it is recognised as such in the planning documents – either in the statement of desired character for the

   precinct in which the land is situated, or is land so approved in a Local Area

   Structure Plan, Plan of Development or preliminary approval. As mentioned above,

   there is no suggestion that any of those formal steps have been taken with regard to

   this land.

5. That type of local centre can be compared with, for example, the sort of centre

   described in Para 5.3. Reference is made there to “a convenience local centre” or

   “a neighbourhood local centre”. The reference is to local and convenience

   shopping, and to corner stores. Then, in the statement with regard to the Pacific

   Paradise precinct, there is reference to “an existing local neighbourhood centre,

   located at the intersection Boomba and Bando Streets with the David Low Way.”

   That it seems, is not within the definition – it does not have that formal recognition.

   Then, when one returns to paragraph 5.2, the Code for Local Centres, it can be seen

   that:-

   “Council intends that small-scale centres and “corner stores” be established at suitable sites throughout the Shire to meet the convenient shopping and related day to day commercial services needs of local communities. Such centres are also intended to serve as neighbourhood foci and therefore a mix of local commercial and community facilities is favoured. … local centres of up to 2000 square metres total commercial/business gross floor area are intended to provide convenient shopping … The purpose of this code is to assist with achieving Council’s planning intentions for local centres as outlined above and to provide for such centres to remain at a relatively small scale and to be developed in ways which protect the amenity of surrounding dwellings… The provisions of this code apply to development within Local Centre precincts and Local Centre development elsewhere, which involved … a material change of use…

   OBJECTIVE regard to accessibility, size and location, and the desirability of consolidating existing centres.”

   A building can constitute such a centre (Page 242).

6. In my opinion, it is clear that the planning scheme has two things in mind. The first

   is a Local Centre precinct, and land which is also approved, in a formal way, for

   centre use. Secondly, the scheme assumes that other sites will be suitable for small-

   scale centres. If it were intended that the code in paragraph 5.2 was to apply only to

   land within the definition, of future and existing centres, then it could easily have

   said so. Rather, it refers to “suitable sites throughout the shire … local centre

   development elsewhere … to provide for local centres to be established on suitable

   sites … ”

7. The purpose of the Plan has to be kept in mind. If the Code in Para 5.2 were to be

   restricted to land within the definition, then small centres could be established

   throughout the residential area, and be self-assessable. The absence of control

   would defeat the evident purpose of Para 5.2

8. It follows that the submission on behalf of the Council should be accepted – the

   code does apply to this material change of use. Rather than the prima facie case, of

   self-assessment under column 1, it is a code assessable development. The

   Preamble to the code, and its language, shows that it is intended to apply to this sort

   of development.

9. There is no reason to find that impact assessable development is required. It would

   only apply if this material change of use was not either self-assessable or code

   assessable. As it is code assessable, impact assessment is not required.

10. The applicant is entitled to a declaration that the material change of use, to shops, is

    code assessable. At this stage, no attempt should be made to give further

    declarations, or to order that the present uses cease. Rather, the appropriate course

    is to adjourn the application until the parties and the Council have had a chance to

    assess their positions. It may be that a further application to the council will be

    made. Once the parties’ final positions are known, they can, if they wish, have the

    matter listed again so that further submissions can be made.