W a Stockwell Pty Ltd v Sunshine Coast Regional Council

[2010] QPEC 27

[2010] QPEC 27

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Maroochydore P & E Appeal No 182 of 2009

W.A. STOCKWELL PTY LTD

Appellant

and

SUNSHINE COAST REGIONAL COUNCIL

and

CHIEF EXECUTIVE, DEPARTMENT OF
TRANSPORT AND MAIN ROADS AND OTHERS

Respondent

Co-Respondents

BRISBANE

..DATE 29/03/2010

ORDER

CATCHWORDS

"Minor change" as defined where design of a large expansion of an existing shopping centre was changed in various respects following public notification

Sustainable Planning Act 2009 s 350
Integrated Planning Act 1997 s 4.1.52(2)(a)

HIS HONOUR:  The Court makes an order in terms of the initialled draft which contains directions designed to advance the appeal towards determination.  It's a Maroochydore matter and so the steps included in the directions reflect what's understood to be the practice in Maroochydore rather than the Brisbane one. 

The matter comes before me because Judge Robertson's unavailable today.  I apologise to the local parties whose participation has been by telephone.  There's an overwhelming balance of convenience favouring the hearing being in Brisbane today for various reasons.

The appeal is against the Council's refusal of a development permit to permit a large scale expansion of a big shopping centre which is proposed, effectively, to be replicated in the expansion.  The opposition to the proposal is of two broad kinds: that of commercial rivals and that of submitters without any particular commercial interest who, nonetheless, object to the changes to the amenity of the relevant area in terms of the proposal at its present scale.  Doubtless, planning arguments will be pursued by those resisting the appeal. 

The matter which requires an exercise of the Court's discretion today concerns whether changes to the proposal, as it was presented to the public during the public notification process, constitute minor change.  If they do then the appeal may proceed on the basis of the amended proposal.

The meaning of minor change is now provided by section 350 of the Sustainable Planning Act 2009, notwithstanding that the Court finds itself involved in this exercise by reason of section 4.1.52(2)(a) of the Integrated Planning Act 1997, which was the legislation in force at the time the development application was made and which continues, in many respects, to govern what is able to happen. Counsel referred to Jack’s Property Developments Pty Ltd v Ipswich Shire Council [2010] QPEC 25; there is no need to repeat anything covered there.

There is a helpful schedule of changes prepared by Mr Sheehan, an architect, and but one of the expert consultants providing evidence for the Court.  The others include Mr McClurg, dealing with traffic matters, Mr Reynolds, dealing with planning issues, Mr O'Brien, dealing with visual amenity.

Mr Sheahan's schedule lists changes as follows:

(a) the basement portion of the east/west internal vehicular ring road has been raised up to ground level and incorporated into a "Main Street" externalised retail precinct.

(b) Off street parking, bicycle lanes and an avenue of trees incorporated along Main Street.

(c) Reconfiguration of the shape of the future development sites to the west as a consequence of the revision to the internal road layout.  Reconfiguration replaces 3 parcels with 2 parcels and results in an approximate increase in area of 170 square metres.

(d) Widening of vehicular ring road and incorporation of landscaped islands and bicycle pathway.

(e) Eastern access point into basement relocated further to the east (near the supermarket).

(f) Western access point into basement (near the western end of discount department store) (DDS service area) realigned;

(g) Southern access point into basement (near the eastern end of the DDS service area) relocated.

(h) Identification of a portion of road as "future possible road" with the future development site to the south of the supermarket service area.  Relocation of some car parks at ground level.  Car parks have been produced at ground level behind the mini major/DDS and along Main Street.  Some car parks have been rearranged in the ground level car park to accommodate Main Street and the widening of the vehicular ring road.

(i) Loading dock for the DDS has been reconfigured.

(j) Retail mall split into 2 buildings with the supermarket, a mini major, specialties and amenities in the new building to the east of Main Street.
(k) Relocation of some outdoor seats from the central mall entrance to a location along Main Street proximate to the pedestrian crossing.  No change in the overall number of seats.

(l) Repositioning of travelators within the retail mall.

(m) The retail bridge over the bicycle/pedestrian path adjacent Environmental Protection Area OS7 reduced in width. 

(n) All new roof structures will be constructed using metal deck sheeting.  The height increases to accommodate the introduction of pitch (where a concrete roof was formerly proposed).  However there is no change in the overall maximum building height. 

There is no suggestion that any aspect of the changes proposed has been concealed but the schedule perhaps fails to make clear sufficiently what is involved in some of the changes, in particular in respect of building height.  Mr Reynolds' affidavit supplies the deficiency.  While it's true that the maximum height to be achieved by the proposal is not changed, "there are some points where the building height has increased as a consequence of the changed roof form, namely the level the highest part of the supermarket roof (the ridge) increases by half a metre to RL16.0 and one edge of the roof of the specialty shops beside the main street is raised by 2 metres to RL17.5.  However the highest point of the proposal remains at RL22.0 metres."
Mr Reynolds' schedule goes on to note that the site cover proposed by the development increases to 37.10 per cent for the stage three component, which is an increase of 0.26 per cent.  I'm not certain whether that corresponds with Mr Sheahan's reference to 170 square metres in his item 3. 

In some contexts the changes in building height may be of considerable importance - for example, if they deprive occupiers of nearby properties of views which information about a proposal circulated during public notification in no way indicated were under threat.  That's not the case here.  With the exception of the large shopping centre that already exists, the site is effectively surrounded by vacant land. 

Going through the various components of the section 350 definition, the only one that may be of concern is that in subsection (1)(d)(i). We are in the early days of determining how that provision will work; one might predict much argument in future. I think there's a view open that “substantially different” arguably brings in anything which has substance and is measurable, although, as Mr Gibson has said, without that it may be impossible to identify any "change" at all.

There are a lot of questions awaiting determination in the future such as whether "substantially different" is assessed by reference to what happens on site or by reference to the impacts off the site.  Mr Gibson contends that the section is concerned with the latter.  I would not wish to accept that changes without off-site impacts could never represent "a substantially different development".  There's no difficulty here.  Apart from the height increases mentioned already, the most noticeable change is the creation of the main street so-called which has the effect of separating one of the large buildings containing the supermarket and specialty stores from the others.  In context, it's not possible to say that on a greenfields site that represents a substantially different development.  I'm comfortably satisfied that this appeal ought to be allowed to proceed to determination on the basis of the proposal as it's now propounded by the appellant.  Order as per draft. 

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