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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Rochedale Piazza Pty Ltd v Brisbane City Council & Ors  QPEC 30
ROCHEDALE PIAZZA PTY LTD (ACN 128 241 510)
BRISBANE CITY COUNCIL
JV No 3 PTY LTD (ACN 010 252 279) AS TRUSTEE FOR THE JAMES VARITIMOS FAMILY TRUST
(first co-respondent by election)
NATHAN DUNN AND REBECCA DUNN
(second co-respondents by election)
BRIAN, GORDON AND CAROLE CHURCH
(third co-respondents by election)
Planning and Environment
Hearing of an application
Planning and Environment Court, Brisbane
9 June 2020
29 May 2020
RS Jones DCJ
PLANNING LAW – APPLICATION FOR A MINOR CHANGE – whether proposed change fell within the description of a minor change for the purposes of the Planning Act 2016 – where no change to physical aspects of proposed development – where application was impact assessable development – where application as originally formulated was for a Relocatable Home Park – where proposed change was to change the description of the application to Relocatable Home Park (for seniors and retirees)
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
AAD Design Pty Ltd v Brisbane City Council  QCA 44
Murphy v Moreton Bay Regional Council  QPELR 417
Mr B Job QC with Mr M Batty for the applicant
Mr G Gibson QC with Mr N Loos for the respondent
Connor O’Meara for the applicant
City Legal for the respondent
Co-respondents by election in person
Mr J Varitimos for the first co-respondent by election
Mr N Dunn for the second co-respondent by election
Ms C Church for the third co-respondents by election
- For the reasons set out below, the application is dismissed.
- The subject land is comprised of Lots 2 and 3 on RP48119, Lot 1 on RP51353 and Lot 2 on RP192453 situated at 20 and 54 Ford Road and 240 Rochedale Road at Rochedale. The land is included in the Emerging Community Zone under City Plan 2014 (CP2014) and is also included in the Rochedale Urban Community Neighbourhood Plan under the Planning Scheme. In total, the area of land is approximately 11.37 ha.
- On or about 15 October 2018, Rochedale Piazza Pty Ltd (the applicant) lodged with the Brisbane City Council (the respondent) a Development Application for approval of a development described as a Relocatable Home Park. That application was subject to impact assessment under the Planning Act 2016 (Qld) (Planning Act). The Department of State Development, Manufacturing, Infrastructure and Planning was a referral agency for the Development Application. It did not have any requirements insofar as the application was concerned. By decision notice dated 20 August 2019, the respondent advised the applicant that it refused the application. The reasons for that refusal are dealt with in some detail below. That decision is currently under appeal by the applicant.
The assessment phase
- Within the Development Application itself, it is identified that in respect of the first and second aspects of the development, what was being applied for was a material change of use of the premises for a development permit which was subject to impact assessment. The proposed material change of use was described as being for a “Relocatable Home Park”. The identical description was given when identifying the relevant definition under the Planning Scheme.
- The number of proposed dwelling units is 169. The nature and extent of the proposed development in its physical form are shown in various documents. More relevantly though, in support of the Development Application were a number of planning and other reports. In this regard, Mr Job QC, senior counsel for the applicant, took me through numerous passages of planning reports together with other material including reports dealing with traffic and traffic engineering matters. It is unnecessary to refer to those documents in detail other than to observe that it was abundantly clear that the target market was for those persons who could be described as being senior citizens and/or retirees. In the first Town Planning report, it is stated:
“This report is submitted in support of the redevelopment of the land at 340 Rochedale Road and 28 and 54 Ford Road, Rochedale for Relocatable Home Park and addresses the merits of the Proposed Development with respect to the provision of the Brisbane City Plan 2014 and the relevant components of the Planning Act 2016.” (emphasis added).
- Thereafter references are made to the fact that the development will be carried out and operated by TriCare said to be “recognised as industry leaders in the delivery of best practice retirement living and residential aged care housing options.” Further, there are references to the development being for “Retirement and Residential Care Facility” uses. Also, to provide “diversity of housing options available within the locality and respond to identified community and economic need for additional housing options for older persons within the catchment”.
- This focus was identified in the application in pending proceeding itself, where it was asserted:
“The proposed Relocatable Home Park will form a lifestyle community catering for older persons that will add to the diversity of housing options available within the locality and respond to identified community and economic need for additional housing options for older persons within the catchment …
The development will be carried out and operated by TriCare, recognised as industry leaders in the delivery of best practice retirement living and residential aged care. TriCare are committed to providing the community with the highest standard of retirement living and residential aged care housing options. TriCare currently operate nine retirement communities and fifteen residential aged care facilities throughout Australia. …
The proposed Relocatable Home Park will form a lifestyle community catering for older persons. The proposal will deliver a total of 281 dwellings responding to identified community and economic need for additional housing options for older persons in the catchment. The proposal will raise the benchmark for lifestyle and retirement living housing options through architectural excellence, subtropical design and the highest quality offerings and communal facilities.”
- That description is also repeated in the written submissions relied on by the applicant.
- It should be noted that, as identified above, the subject Development Application is for 169 units/dwellings. That development was intended to occur in Precinct 1 of the overall proposed development. Precinct 2 is intended to accommodate a “Retirement and Residential Care Facility”. As I understand it, that is the subject of a separate Development Application. It seems tolerably clear to me that when this application was lodged, two distinct and separate uses were contemplated, a relocatable home park in Precinct 1 and a residential care facility for retirees in Precinct 2.
- It is unnecessary in my view to plough through all of the issues raised and the responses of the applicant. However, by reference to the information request issued on 12 November 2018, the respondent clearly had a number of major concerns about what was proposed. Among other things, in that information request it was said:
“Council has carried out an initial review of the above application and has identified that further information is required to fully assess the proposal. The proposed development is not supported in its current form and a considerable redesign of the layout and built form is required. The proposal does not appropriately address the purpose of assessment criteria of the Rochedale urban community neighbourhood plan code. Principal concerns include proposed dwelling density, land use definition, integration of land use with adjoining land, building design, landscaping and engineering matters.” (original emphasis)
- Notwithstanding the applicant’s best endeavours to address the Council’s concerns, a decision notice was issued refusing the application. The reasons for refusal are set out in the notice of appeal. It is unnecessary to go through all of the reasons other than to note that, for all intents and purposes, the respondent maintained most (if not all) of its original concerns about what was proposed. It was asserted that the Development Application was in conflict with CP2014 and, in particular:
“(a) Part 3 Strategic Framework, Theme 2 – Brisbane’s outstanding lifestyle….
- (b)Part 3 Strategic Framework, Theme 3 – Brisbane’s clean and green leading environmental performance …..
- (c)Part 3 Strategic Framework, Theme 5 – Brisbane city shape….
- (d)Emerging community zone code overall outcomes…
- (e)Road style urban community neighbourhood plan code performance outcome PO2
- (f)Biodiversity areas overlay code performance outcome PO4
- (g)Waterway corridors overlay code performance outcomes….”
- Not surprisingly in the notice of appeal it is asserted that the reasons for refusal are ill-founded.
- The respondent was subsequently required to particularise its grounds for refusal. Those grounds identified various matters including; yield and community expectations, siting, setbacks, building separation and amenity, design, open space and internal and road networks, lack of access to Local Government Infrastructure Plan park (LGIP park). Further problems were identified concerning structure planning, storm water, flooding and hydraulic impacts, vegetation ecological and landscaping concerns and broader amenity and character impacts.
- In turn, the applicant was required to prepare a list of matters in support of the approval. It is unnecessary at this stage to go through those matters in detail, however, in paragraph 5 it is asserted:
“The development would address and respond to the Lord Mayor’s independent taskforce report, the respondent’s senior’s strategy 2012-2017 and a number of important planning outcomes sought by City Plan 2014 (including the objectives of the Retirement and Residential Care Facility Code (….).”
- The reference to the Retirement and residential facility code was of particular concern to the respondent for reasons for which will become clear.
The need for the Minor Change
- This is an unusual proceeding in the sense that, unlike most minor change applications that come before this Court, no physical changes of any relevance are going to occur on the land. That is, what was proposed in the physical sense is still what the applicants intend to construct. The only change sought, is to change the description of the proposed material change of use from “Relocatable home park” to “Relocatable home park (for seniors and retirees).”
- During oral submissions, on more than one occasion Mr Job emphasised that there was no suggestion that the subject Development Application was for anything other than a relocatable home park. In the applicant’s written submissions it is asserted that the reason for the change is:
“The proposed change is straight forward. In particular, it involves:
(a) a change to the description of what is proposed to make clear what has always been identified in the Development Application material; and
(b) no change to the layout of the development, nor the built form.
The change is sought to provide certainty at an early stage of the appeal. It has the advantage of ensuring clarity in relation to the identification of issues; for the conduct of joint expert reports; and ultimately for the Court’s determination of the appeal.” (emphasis added)
- The requirement for certainty and clarity is somewhat surprising given the details contained in the supporting documentation to which I was referred. Indeed, such an assertion seems at odds with the application in pending proceedings itself, where it is asserted “a fair reading the Development Application discloses that it is for a Relocatable home park that will cater for older persons within the population.” Also, according to the applicant, “the change does no more than confirm something that was apparent from a proper objective, reading of the Development Application itself”.
- To a similar effect are statements in the applicant’s list of matters in support of approval which refer to: “housing options for both retirees … and seniors” and “part of a larger retiree and seniors’ development” and meeting the market gap in modern “retirement housing choice for seniors”. In this context I have already referred to the assertion that the development would address and respond to outcomes sought by CP20014, including the Retirement and residential care facility code.
- What was proposed was also made abundantly clear in the applicant’s response to the information request issued by the respondent which included the following passage:
“The proposed Relocatable Home Park will be operated under the Residential Land Lease Community Model. This model offers older persons the lifestyle benefits of a retirement living community under an alternative ownership model to a traditional retirement village. With only one existing seniors (sic) residential land lease community in the catchment (Palm Lakes Carrindale). The proposal will add to the diversity of housing options/ownership models available to older persons in the catchment and support the ability of older persons to age in place within their established communities as their housing needs change”.
- When asked during oral submissions why the change of the wording was necessary, the following exchange took place:
It’s to make clear that that is what is applied for, and as we say in paragraph 10 of our written submissions, it’s to set the appeal ship on a straight course, so there’s no misapprehension as to what was applied for, where – this appeal’s at a very early stage Your Honour. There’s been no joint expert reports, the issues were notified but Your Honour’s ruling will enable the parties to clearly articulate what issues they wish to raise, and associated with that, what assessment benchmarks they say – regard ought be had to.
Sorry, but I thought it was part of your submission that everyone knows what was applied for.
If everyone knows what was applied for, why is it necessary to add extra words to make it clear what was applied for, if, by implication, everybody knows.
Because there is a change, and the change is to the description of what’s sought to be approved
I’m sorry, can you elaborate on that?
Well the change is rather than relocatable home park, which absent further detail, could have a broader connotation, this is for a particular type of relocatable home park.
Yes, but – I may have misunderstood, but I thought you had said, a moment ago, that no-one was under any illusion about what was going to be – or what was going to occur within this development. Maybe it was going to be a relocatable home park, but everyone knew it was going to be for the elderly and retired for the …
That’s certainly our submission, yes.
But then we’re going back to where I started from. Why do you need the change in the brackets? If everyone knows what it is, then what’s the clarification that’s needed.
It’s simply to avoid problems down the track in terms of the conduct of this appeal, whereby we have joint expert reports, or the like and all of a sudden, there’s some debate about – because, for example a need element to this, and what we’re seeking to avoid, Your Honour, is a debate down the track to say, “Well hang on a minute. Whilst your application material referred to older members of the community, what you’ve applied for is a relocatable home park, so it may not necessarily be the case that that’s all you want.” Demonstrative of that, You Honour, is the Council’s case here. They say, “no, it’s a different characterization.” And we submit that the characterization question is irrelevant, but it’s a live contest. But also, there’s a heavy emphasis on the complaint that, “well, if you applied for a retirement facility –“which the Council suggests that it may be now, “different assessment benchmarks would come into play.” So as I say, that’s illustrative of the potential problems that can arise down the track if this is not put to bed now.
- With all due respect I found that exchange to be quite confusing. On the one hand, it seemed to be asserted that there was no doubt about what was applied for and what the intended use was and that everyone involved was quite clear about that. That is, there was little room for doubt that all the relevant parties knew that the intended use was for the development of a relocatable home park intended to accommodate the elderly including retirees. On the other hand, notwithstanding that, it was said that to provide clarity it was necessary to change the description of what is sought to be approved. The characterisation issue to which Mr Job referred to was whether, when properly considered, the Development Application was not for a relocatable home park but in reality one for a retirement and residential care facility, a theme to which I will return.
- Another point of confusion, at least for me, arising out of that exchange was that it seemed to be suggested that as a consequence of the “characterisation” issue, the council might assert that different assessment benchmarks might come into play. Yet, it was the applicant that first raised the applicability of the Retirement and care facility code. Indeed during oral submissions, Mr Job said not only did his client raise it, it relies on it.
- That the full extent and nature of what was proposed was understood by the respondent is, somewhat paradoxically, also emphasised in the applicant’s written submissions where it is said that the respondents decision notice included the express recognition that “it is noted that the site is intended as the living space for older persons” and, in respect of submitters/co-respondents by election, there was little room for doubt that they also understood what was proposed by virtue to references of the development being more properly described as “multiple dwelling” and/or a “retirement facility”.
Consideration and determination
- Section 46(3) of the Planning and Environment Court Act 2016 (Qld) provides that this court cannot consider a change to a Development Application unless that change is a minor change. Under the Planning Act, a minor change means a change that –
- (a)For a Development Application –
- Does not result in a substantially different development:; and
- If the application, including the change, were made when the change is made – would not cause –
- There is no need to consider any of the “causable” effects as they do not arise in this case. The focus is on whether in truth, the change would amount to substantially different development. Development includes building work, plumbing and drainage work, operational work, the reconfiguration of a lot and the making of a material change of use of the premises. Relevantly, a material change of use of premises is defined to include:
“(a) the start of a new use of premises”
- On behalf of the applicant, it was submitted that the proposed change is a minor one for reasons including in particular, first, the common material makes it clear that the intention of the proposed development (identified as being made on behalf of a recognised aged care operator) was to cater for older members of the community. Second, it is compelling that the change would not involve any alteration to the layout of the development nor in respect to the proposed built form and density of use. Third, that even if the effect of the change was to narrow the characteristics of the occupants, the use of the development for seniors or retirees was, in any event, a permitted outcome without the proposed change. In respect of this submission reliance was placed on the decision of this court in Murphy v Moreton Bay Regional Council.
- The judgment in Murphy is in my respectful opinion of no assistance to the applicants. In that case the information in the minor change application provided details about the intended built form and other works where previously no such detail existed, as only “examples” were given. Judge Kefford found that the further details avoided the otherwise “limitless” number of forms the development could have taken. That is, with respect, nothing like the situation here.
- Mr Gibson QC, senior counsel for the respondent, placed considerable emphasis on three aspects of the applicant’s case. In particular, first, the applicant’s contradictory assertions made about the need for certainty and clarity. Second, as a “matter of law” the changes in description would describe “an entirely different use under CP2014”. Finally, the application of relevant assessment benchmarks.
- Save for reference to the evidence of Mr Buckley which I refer to below, there is no need to make any further comment about the first of those matters. In respect of the second, schedule 1 of CP 2014 defines a Relocatable home park to mean:
“Relocatable Home Park means the use of premises for –
- (a)relocatable dwellings for a long term residential accommodation or
- A retirement facility is defined as follows:
“Retirement facility means a residential use of premises for –
- (a)accommodation for older members of the community, or retired persons in independent living units or serviced units
- As I understand it, the introduction of the Retirement and residential care facility code (CP2014 – version 16) commenced after the date that the Development Application was lodged but before the decision notice was issued by the respondent.
- It is immediately apparent that a relocatable home park places no limit on the age or any other category of potential occupants. That can be contrasted with the potential occupants of a retirement facility who are limited to older members of the community or retired persons. There is no reason why a retirement facility could not also be one that involved relocatable dwellings but that is not to the point. According to the respondent, by inserting the words proposed, the use of the premises would either fall within the meaning of a retirement facility or some form of “hybrid” use. On behalf of the respondent it was asserted:
“In support of its primary submission, the appellant submits that the proposed change is to “provide certainty” and ensure “clarity”; that it “does no more than confirm something that was apparent from a proper, objective reading of the Development Application itself”; and that the common material made it clear that the appellant’s intention was to cater for older members of the community.
If those submissions are correct, the application is unnecessary …. The appeal will be heard and determined on the basis that the use applied for is “Relocatable home park”. That self-evident conclusion casts doubt on the real reasons for this application.
More importantly, however, to characterise the proposed change as a “change to the description of what is proposed” … is plainly not correct. The change is more than a change to the description of what is proposed. It is a change to the use for which approval is sought…
“Relocatable home park” is a defined use under the Planning Scheme. “Relocatable home park (for seniors and retirees)” is not. One is a defined use. The other is an undefined/hybrid use. One is recognised by the Planning Scheme. The other is not. They are different uses, not simply descriptions of the same use. (Quotation marks, footnotes and emphasis deleted).”
- During oral submissions particular emphasis was placed on the decision of the Court of Appeal in AAD Design Pty Ltd v Brisbane City Councilon behalf of the applicant. Relying on that judgment it was asserted “where a use falls within two definitions within a planning scheme, and in that event, a proponent – according to the Court of Appeal, may elect to choose the course it wishes to take …” The relevant passages are set out in paragraphs 45 to 49 and in particular where it was said:
“If a proposed development satisfies two definitions, the rights and obligations which would follow from the conclusion that both definitions apply, are not to be abrogated because the judge has a preference for one result over another, or thinks that the local authority which drafted the planning scheme might have preferred the other. If two or more definitions are satisfied than the legal consequences set out in the planning scheme for a proposal which meets those definitions will apply, and the developer may follow the path which suits its purposes best.”
- With respect, reliance on AAD Design is misplaced. Here, in reality there are two definitions in play namely relocatable home park or retirement care facility. As Mr Gibson QC pointed out, in CP2014 there is no definition or description of a land use that would fall under the description of “relocatable home park (for seniors and retirees”).
- In this proceeding, both the respondent and the applicant relied on affidavits provided by town planners; Mr Perkins for the respondent and Mr Buckley for the applicant. A number of objections were taken to much of Mr Perkins’ affidavit which were not contested by the respondent. However, it is unnecessary for me to rule on them as I have reached the conclusion that there is no need to resort to his evidence to determine the outcome of this application. On the other hand, the evidence of Mr Buckley is of interest. According to him, “the change does no more than make explicit something that was otherwise implicit from a reading of the Development Application and on one view may not constitute a change at all.” In this context, Mr Buckley went on to say:
“As mentioned above, in my view, the practical effect of the change is to make it explicit that the development for which approval is sought is a Relocatable home park which would provide accommodation for seniors and retirees.
Even if I am wrong about the true effect of the Development Application, then at worse, the change seeks to narrow the class of persons who would occupy the development from, on a broad view, those of all ages to those who meet the description of seniors and retirees.
If properly construed the true effect of the changes is to narrow the demographic of persons who can occupy the development where no limitation existed before; it remains my view that does not give rise to substantially different development, for a range of reasons.”
- Mr Buckley then went on to say:
“It is my experience that only:
- (a)aged care and retirement facilities;
- (b)gaols and half-way houses;
- (c)some health-based accommodation; or
- (d)boarding schools,
are the residential uses where planning schemes are cognisant of and responsive to the intended occupier.
In the current case of a comparison between a typical relocatable home park, and a retirement community relocatable home park, it is only the narrowing of the age of the occupants where there is a difference.” (emphasis added)
- That evidence, which I accept, in my view, supports the submission made on behalf of the respondent that the introduction of the words “for seniors and retirees” is not a benign change. The change contemplates a use which can no longer be reasonably described as a relocatable home park. Instead it contemplates a use as a retirement facility, or, as described by Mr Buckley, a “retirement community Relocatable home park”. The latter use is again not a use identified in CP2014.
- In my view, the application ought be dismissed for the following reasons. First, the change in reality contemplates a different use from that identified in the current Development Application. Once that is accepted, pursuant to s 45(5)(a)(i) of the Planning Act, assessment of the Development Application would require assessment under the Retirement and residential care facility code under CP2014 (version 16) which is to all intents and purposes, the current equivalent of the Multiple dwelling code, which was in force as at the date of the lodging of the subject Development Application. Neither of those codes were addressed in the assessment of the application for approval of a Relocatable home park. Insofar as the use might be more properly be described as a hybrid use, other codes might come into play, but it is unnecessary to consider that matter any further.
- It is no answer to say, as the applicant does now, that because it was clearly identified that the end users would be seniors and retirees all assessment benchmarks ought to have been considered by the respondent. Presumably that is intended to mean the respondent ought to have also assessed the application against the Retirement facility code and/or the Multiple dwelling code. That proposition is highly questionable given that the application was for a relocatable home park and those codes had not been identified as being applicable by the applicant’s agents. However, in any event, even if that were correct, the simple fact is that those codes did not play a role in the decision-making process by the respondent. I would also note in this context that the failure to consider those other codes is not raised as a ground in the applicant’s notice of appeal.
- The second reason why the application ought be refused is that, according to the applicant, the only purpose of the change is to “make clear what has always been identified”. For the reasons given, it is obvious that there is no sensible room for doubt about what the intended use is and what the real issues in the appeal are. To adopt some of the language used by Mr Buckley, it is unnecessary to make any more explicit something that was otherwise clearly implicit form a reading of the Development Application and supporting material. In addition to that material, I would also add the other information to which I was referred during the course of the proceeding. In circumstances where there is no need to make the change sought, to achieve the purpose identified by the applicant, the change ought not to be made.
- Before making final orders, I wish to make it clear that while I have not referred to any of the material filed by the co-respondents by election that does not mean that I have not read that material. The absence of reference to it in these reasons is solely because I did not consider it necessary to add their material into the mix to determine the outcome of this proceeding.
- For the reasons given the orders of the court are:
- The application is dismissed.
- I will hear from the parties if necessary as to any consequential orders.
 Exhibit 3, tab 3.
 E.g. see exhibit 3, tab 8.
 E.g. see exhibit 3, tabs 2, 15 and 16; exhibit 3 (part 2), tab 27 – Town Planning: exhibit 3 (part 2), tab 31 demand supply and competitive assessment: tab 32 traffic engineering – note in the Traffic Report the use was described as “a Retirement Living use”.
 Exhibit 3, tab 2, p 4.
 At para .
 At para .
 Exhibit 3, Tab 13.
 At .
 As were the co-respondents by election in one form or another.
 At  and .
 At .
 Written submissions at .
 At para , and  (a).
 At  (b).
 At  (b).
 T1-7, ll 43-47 to T1-8, T1-9, ll 1-3.
 T1-26 l 29.
 T1-27 l 12-13.
 At paras 20 and 21.
 As identified there would be no relevant (if any) changes to any of the physical elements of the proposed development.
  QPELR 417.
 At paras 20-23.
  QCA 44.
 T1-10 l10.
  QCA 44 .
 Exhibit 2, tab 1, at para 7.
 At paras 11 and 12.
 At paras 17 and 18.
 Written submissions at para 60(c).
- Published Case Name:
Rochedale Piazza Pty Ltd v Brisbane City Council & Ors
- Shortened Case Name:
Rochedale Piazza Pty Ltd v Brisbane City Council
 QPEC 30
RS Jones DCJ
09 Jun 2020