SVMJ 1234 Pty Ltd v Moreton Bay Regional Council

[2025] QPEC 7

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

SVMJ 1234 Pty Ltd v Moreton Bay Regional Council [2025] QPEC 7

PARTIES:

SVMJ 1234 PTY LTD ACN 654 623 453

(Applicant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(First Co-Respondent by Election)

and

SAMFORD AND DISTRICTS PROGRESS AND PROTECTION ASSOCIATION INC AND ORS

(Second to 104^th Co-Respondents by Election)

FILE NO/S:

2669 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

31 March 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2025

JUDGE:

Everson DCJ

ORDER:

APPLICATION DISMISSED

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – MINOR CHANGE TO A DEVELOPMENT APPLICATION – where a reduction in height, bulk and scale and a relocation of uses is proposed – whether the change proposed is a minor change

CASES:

Earthteck Qld Pty Ltd v Redland City Council [2022] QPEC 25

Spraybuilt Investments Pty Ltd v Brisbane City Council [2018] QPEC 3

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

COUNSEL:

Mr N Batty for the Respondent

Mr Ware for the First Co-Respondent by Election

SOLICITORS:

McKeown Solicitors for the Applicant

Moreton Bay Regional Council Legal Services for the Respondent

McInnis Wilson Lawyers for the First Co-Respondent by Election

1. This is an application that the development application the subject of the appeal be changed, pursuant to s 46(3) of the Planning and Environment Court Act 2016. It is submitted that the change is only a minor change, having regard to the definition in sch 2 of the Planning Act 2016.  The only controversial element of the definition is the requirement that the change does not result in a substantially different development.

2. The change is, in fact, a series of significant design changes which are set out in before and after plans which are exhibit 1 before me.  In his affidavit in support of the application,[1] Mr Buckley summarises the changes to the proposed shopping centre use at paragraph 14.  There is a reduction in tenancies, from 16 to 14.  The built form has changed, and there has been a reduction in the total gross floor area of approximately 407 m², to 2,223 m², a reduction of approximately 15.5%.  The site cover has increased by approximately 6.9%, to 78.5%, and landscaped areas have increased by 2.9%, to 20.4%.

   [1] CD 337.

3. The changes are clearly ameliorative, and I accept the evidence before me that they represent better outcomes from a noise and traffic perspective.  Each of the parties to the appeal other than the appellant does not object to the changes.  There are, however, some substantial design consequences in the reduction in height, bulk and scale which will be brought about by the changes.  The third storey on the Samford Road frontage has now gone, and at various places, the proposed development has changed not only in terms of its height but also in terms of the proposed uses.  An example of this is that a covered courtyard has been relocated to a completely separate part of the proposed development. 

4. It is commendable that the changes are ameliorative, but the architectural treatment from each of the street frontages results in a very different building.  The original elevations for the building to the northeast show a predominantly flat-roofed structure, whereas now what is proposed is a predominantly gabled structure.  The Samford Road elevations for the building the subject of the application show a predominantly three-storey building with a predominantly flat-roofed structure, whereas a predominantly gabled two-storey structure is now proposed. 

5. Perhaps the most stark differences are to be seen in the Junction Street elevation.  Whereas what was originally proposed was a relatively unimposing two-storey structure with a covered access, what is now proposed is very different.  The elevations for Junction Street show a substantial building frontage incorporating numerous design elements, which is very different, in terms of bulk and density, to the design originally proposed. 

6. In Earthteck Qld Pty Ltd v Redland City Council [2022] QPEC 25 at [5], the court commented on what is relevant in considering the concept of a substantially different development:

   Regard must be had to the concept of a substantially different development, and as has been previously observed in this Court, this involves considering whether or not the changes result in an essentially or materially different development. 

7. In Spraybuilt Investments Pty Ltd v Brisbane City Council [2018] QPEC 3, the concept was considered from an architectural perspective and, relevantly, the court stated at [5]:

   The application of this test in terms of the presentation of the changes from the perspective of the scale, bulk or appearance of the proposed development requires an objective assessment of fact by the court… 

8. Subsequently, at [6], the court observed, in the context of that case: 

   There is also a reduction in proposed building height from five storeys to three storeys with a partial fourth storey and a significant consequential reduction in bulk.  All of these changes appear to be ameliorative on the evidence before me.  However what is pivotal is the change in presentation of the built form.

9. Those observations are very apposite to the circumstances the subject of this application.  I accept the changes are ameliorative, but they are not merely internal changes which may be seen as objectively improving outcomes for the proposed development.  They go further.  They significantly change the presentation of the proposed development from an architectural perspective.  They significantly alter its presentation to the street frontages.  What is now proposed from a design perspective is a materially different development to that which was the subject of the development application.  Accordingly, I am of the view that the proposed changes result in a substantially different development.  Accordingly, the proposed change is not a minor change. 

10. I dismiss the application.