TAL GP Projects No 3 Pty Ltd v Logan City Council

[2021] QPEC 78

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

TAL GP Projects No 3 Pty Ltd v Logan City Council [2021] QPEC 78

PARTIES:

TAL GP PROJECTS NO 3 PTY LTD
(applicant/appellant)

v

LOGAN CITY COUNCIL
(respondent)

FILE NO/S:

997 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

1 December 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2021

JUDGE:

Rackemann DCJ

ORDER:

Order as per draft

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where the applicant made a development application for a material change of use for a childcare centre – where the applicant applies to change the development application – where the applicant proposes numerous changes, including changes to the height of the acoustic walls, the site cover, built form, number of child care spaces and landscaping – whether the changes to the development applicant are minor

LEGISLATION:

Planning and Environment Court Act 2016 s 46(3)

COUNSEL:

M Connor (sol) for the applicant/appellant  

G McCracken (sol) for the respondent

SOLICITORS:

Connor O’Meara Solicitors for the applicant/appellant

MinterEllison Gold Coast for the respondent

1. This is an application that a development application subject to this appeal be changed. Section 46(3) of the Planning and Environment Court Act 2016 (Qld) means that such application can only be granted if the change is a minor change. Relevantly, for present purposes, the proposed change can only be judged to be a minor change if it does not result in substantially different development. The chief hurdle for the applicant/appellant in this case is that the proposed changes to what is a proposed childcare centre represent, as the appellant’s consulting town planner said in his affidavit:

A significant and, even on one view, dramatic change to the form.

1. Changes which dramatically change the built form, in terms of scale, bulk and appearance, may be considered to result in a substantially different development, but do not necessarily have to be considered to have that effect in all cases.  Whether they cause a proposed change to be more than minor in any particular case will depend on the facts and circumstances of the case at hand.  As the Court has said on previous occasions, one must look at proposed changes from a qualitative as well as a quantitative perspective. 

1. The subject appeal is against the respondent’s decision to refuse an application for a development permit for a material change of use for a childcare centre on land situated at Lamorna Street, Rochedale South.  The subject land adjoins, to the east, the local school, and is obviously favourably located in relation to its synergy with that facility.

1. It is bordered to the north and south by detached houses.  It is currently in the low-density residential zone and apart from the school, and its entrance and car park, the development in the immediate locality is largely comprised of detached houses on generous allotments. The council’s reasons for refusal raised issues which included noise, the proposal not having a residential built form character consistent with dwelling houses in an urban landscape, that the proposal had excessive site cover and development intensity, was of excessive size and bulk and would adversely affect visual amenity when viewed from the side.  The appellant has redesigned its proposal, in ways which are obviously designed to meet such concerns. 

1. At a macro level, the proposal remains a child care centre to be constructed on the same site and to take the form of a two-story development with its own on-site car parking and outdoor play areas, parking facilities, and acoustic fencing.  There is much about the detail, however, which is to change in order to meet the concerns which underlay the council’s reasons for refusal. 

1. Both the existing and proposed changed proposals feature car parking at the front of the site and built form in the central part of the site.  In the case of the existing refused proposal, however, the built form at ground level was constrained to the rear half of the allotment, allowing for 26 car parks as well as turning bays and landscaping provision.  At the first level, however, the building form extended out over the car parking areas towards the street frontage.  The built form at that level included a generous outdoor play area which, whilst not roofed, was to be enclosed on the sides with acoustic barriers and was to be covered with the shade structure. 

1. Accordingly, the built form of the refused proposal extended to within seven metres of the street frontage.  Similarly, at that level, the refused proposal had an outdoor playing area at the rear which extended to within three metres of the common boundary with the school. 

1. An important change that is proposed is that there will be no development over the top of the at-grade car parking at the front of the child care centre save that an area in which six cars are to be accommodated in aboveground stackers will be enclosed in a garage-type structure.  There will be a reduced internal area of built form on the first floor, and there will be an expanded area of outdoor play area to the rear of that, but that outdoor play area, at the first floor level, will still be set back to a greater degree from the school boundary.  Indeed, it will be set back some 8.15 metres rather than the three metres on the refused plan. 

1. At ground level, the built form will be pushed further forward, since there will be fewer car parks provided in relation to the smaller development.  There will be  a larger area of outdoor play with the built form set further back from the common boundary with the school.

1. In order to present some interest to the visual presentation of the building when viewed from the side, some stepping has been introduced into the side elevations.  The proposal, as refused, had a relatively uniform setback to the north both at the ground and first-floor level of three metres.  The southern setback was 2.2 metres in the area of the front outdoor play area and otherwise three metres.  With the new proposal, there is, of course, no outdoor play area at the front at the first-floor level and there is otherwise greater variation in the setbacks at different parts of the building on both sides.

1. There has been a change to the heights of the acoustic walls around the boundaries of the subject site.  It is a little hard to ascertain precisely the difference, because the plans which were the subject of the refusal nominated a height of fence on top of a retaining wall, the height of which was not specified.  The proposed new plans specify the proposed heights of acoustic fencing in more certain terms, but the acoustic fences are to be no lower than what was previously proposed.

1. I have mentioned that the changes have resulted in the proposed child care facility becoming smaller.  The site cover has reduced from 63.2 per cent to 39.6 per cent.  The height of the building has reduced from 8.1 metres to 7.2 metres above natural ground level.  There has been a reduction in the number of child care places to be offered from 98 to 86.  There has been a consequent reduction in the number of staff to be employed and the number of car parking spaces to be offered. 

1. There are some other changes I should also mention.  There has been some change to the landscaping.  In order to fit the required number of car parks at the front of the building, given its altered position, the landscaping area at the street frontage has a reduced depth and some of the car parking, being the nominated staff car parking, is to be provided by way of stackers.  There is some additional landscaping to be provided by way of a planted terrace on the northern boundary of the site.  There is to be a small increase to the width of the vehicle crossover at the entrance way. There is to be an increase in the width of landscaping on part of the southern boundary. 

1. There is also a change to the architectural presentation of the built form to incorporate a roof configuration suggested by the council to be more respectful of a domestic appearance and character.  That will also be reflected through a choice of materials and colour selections. 

1. The material before me includes evidence of an acoustic expert, Mr King.  His evidence is to the effect that the changes do not cause any additional or adverse acoustic impacts.  And an affidavit from an expert traffic engineer, Mr Crank, whose evidence is to the effect that the changes do not introduce any new, or increase the severity of any, traffic impacts and otherwise would have a negligible impact on traffic considerations with respect to the development. 

1. It seems to me that this is a case where, whilst at first blush, the changes to the built form appear significant, when one has regard to the changes from a qualitative perspective, they are not changes which cause any new issues to arise or adverse effects in any way.  They do not change the fundamental character of the proposal or any of its elements.  They are simply a collection of alterations to what is substantially the same proposal in order to meet the concerns which underlay the reasons for refusal. 

1. Whilst this may be a case which is at or towards the outer edges of what may be considered as falling within the boundaries of a minor change, in my view, it falls within that expression because it would not, when considered broadly and fairly, result in a substantially different development.  Accordingly, I am prepared to so find and to make the orders which the parties consent to be made.