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Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council[2017] QPEC 19

Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council[2017] QPEC 19

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council [2017] QPEC 19

PARTIES:

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC
(appellant)

v

SCENIC RIM REGIONAL COUNCIL
(respondent)

FILE NO/S:

3796 of 2015

DIVISION:

 

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

24 March 2017, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2017

JUDGE:

Everson DCJ

ORDER:

I declare that the proposed changes are a minor change

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – Whether changes to a development application are a minor change – Whether changes to a development application result in a substantially different development

Sustainable Planning Act 2009 (Qld) ss 350, 495

Jimboomba Lakes Pty Ltd v Logan City Council [2015]  QPELR 1044

King of Gifts (Qld) Pty Ltd & Anor v Redland City Council & Anor [2017] QPEC 17

Northbrook Corp Pty Ltd v Noosa Shire Council [2015] QPELR 664

COUNSEL:

R Laidely for the appellant

A N Skoien for the co-respondent

SOLICITORS:

McCarthy Durie for the appellant

Corrs Chambers Westgarth for the respondent

Quda Planning Lawyers for the co-respondent

Norton Rose Fulbright for the co-respondent by election

  1. [1]
    This is an application in pending proceeding in which the Co-Respondent is seeking a declaration that the changes it wishes to make to a development application are a minor change, as defined in section 350 of the Sustainable Planning Act 2009 (“SPA”).
  1. [2]
    The application occurs in the context of a submitter appeal against the decision of the Respondent to approve an application for a material change of use for the purposes of Outdoor Sports, Recreation and Entertainment (Community Services Use), (Mountain Bike Trails and Outdoor Recreation Park), Camping Ground (Community Services Use) (up to 300 persons) and Food Establishment/Reception Centre (Business Use) (“the proposed development”) on the land at 98-196 Guanaba Road, Tamborine Mountain.
  1. [3]
    Pursuant to section 495 of SPA, the Court must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change. The term “minor change” is defined in section 350 of SPA as, relevantly, a change that “does not result in a substantially different development”.
  1. [4]
    There are a number of proposed design changes to the proposed development, which are set out in exhibit 1. Of these changes, four are contentious. These are:
  1. (1)
    Reduction of the number of camping sites from four to one, and the reduction in the number of campers from 150 to 100;
  1. (2)
    Removal of vehicular access by campers to the remaining campsite;
  1. (3)
    Restriction of campers to attendees of mountain bike clinics only;  and
  1. (4)
    Removal of the proposed caretaker, who is to be replaced by a clinic coach camping with attendees of a mountain bike clinic.
  1. [5]
    It is alleged by the Appellant that the changes specified above collectively change the nature of the use and give rise to a substantially different development. For the sake of completeness, I should indicate there are a number of other internal changes which are not contentious.
  1. [6]
    In arguing that the enumerated changes result in a substantially different development, the Appellant asserts that this will occur because a different demographic will be attracted to the proposed development. Reliance is placed upon the evidence of Mr Ryan, a town planner, who asserts:

“The new focus of the development will have the propensity to attract a very different demographic to that previously proposed.  It is likely that this will predominantly include a large group of young males whose behaviour and conduct particularly at night would no longer be tempered by family groups or an onsite caretaker.”

  1. [7]
    In forming this view, Mr Ryan has had regard to the fact that the proposed development was summarised in the common material in the following way:

“The purpose of the outdoor recreation park is to provide a facility for nature based activities such as mountain-biking, flying fox, zip-line, canopy walks, indigenous tours and high ropes course.  Camping is also an integral part of the recreational experience.”

  1. [8]
    It is uncontentious that of these activities, canopy walks and indigenous tours no longer form part of the proposed development and camping is limited to people attending mountain bike clinics. Mountain-biking has always been a significant focus of the proposed development, and the approved plans show numerous mountain-biking trails of various degrees of difficulty, including a family cross-country trail. In justifying its argument that the contentious changes quoted above will attract a very different demographic, the only expert evidence relied upon by the Appellant is the evidence of Mr Ryan. Although Mr Ryan is a qualified town planner, he holds no qualifications in sociology or a similar discipline and appears not to hold any particular expertise in analysing demographics. He does not cite any particular reports as justifying his assertion in respect of the changed demographic likely to be attracted to the proposed development and does not appear to have had any particular experience that makes him qualified to offer this opinion as an expert.
  1. [9]
    In Jimboomba Lakes Pty Ltd v Logan City Council [2015] QPELR 1044, the meaning of “a substantially different development” was discussed.  In approving an earlier decision of Northbrook Corp Pty Ltd v Noosa Shire Council [2015] QPELR 664, the Court noted that the word “substantial” is defined in the Macquarie Concise Dictionary as, inter alia, “essential, material or important”.  More recently, in King of Gifts (Qld) Pty Ltd & Anor v Redland City Council & Anor [2017] QPEC 17 at [13] the Court observed that the relevant test pursuant to section 350 of SPA “is that the change not result in ‘“a substantially different development” not merely that it not result in some substantially different development’.  On many occasions, the Court has considered changes which reduce the intensity of a proposed development as indicating the change is a minor change.  Ordinarily, a reduction in intensity, without more, will result in a finding that the proposed change is a minor change.
  1. [10]
    Changes that otherwise reduce the intensity of the proposed development must be demonstrated to have impacts of a different type in order for the contention of the Appellant that the result is a substantially different development to be accepted. On the evidence before me, I am not persuaded that the increased focus on one of the proposed activities, namely, mountain-biking, is such that the proposed changes can be viewed as essential, material or important. Mountain-biking has always been identified as a core activity in respect of the proposed development. The proposed development has always been and remains contentious. However, the proposed changes do not result in a substantially different development.
  1. [11]
    I therefore declare that the proposed changes are a minor change, as defined in section 350 of SPA.
Close

Editorial Notes

  • Published Case Name:

    Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council

  • Shortened Case Name:

    Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council

  • MNC:

    [2017] QPEC 19

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    24 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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