Tonic Projects Pty Ltd v Ipswich City Council
[2020] QPEC 58
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- Tonic Projects Pty Ltd v Ipswich City Council[2020] QPEC 58
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Tonic Projects Pty Ltd v Ipswich City Council[2020] QPEC 58
Tonic Projects Pty Ltd v Ipswich City Council[2020] QPEC 58
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Tonic Projects Pty Ltd v Ipswich City Council [2020] QPEC 58 |
PARTIES: | TONIC PROJECTS PTY LTD (Applicant) v IPSWICH CITY COUNCIL (Respondent) |
FILE NO: | 2469 of 2020 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 13 October 2020, ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 October 2020 |
JUDGE: | Everson DCJ |
ORDER: | Application is dismissed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICATION – pursuant to section 78 of the Planning Act 2016 – whether changes to a development approval are a minor change – whether changes to a development approval result in a substantially different development |
LEGISLATION: | Planning Act 2016 (Qld) |
CASES: | Highgate Partners Queensland Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19 Northbrook Corp Pty Ltd v Noosa Shire Council [2015] QPEC 664 Tokyo 2 Pty Ltd v Brisbane City Council [2020] QPEC 23 |
COUNSEL: | R Yuen for the Applicant |
SOLICITORS: | Thynne + Macartney Lawyers for the Applicant Ipswich City Council Legal Practice for the Respondent |
- [1]This is an application pursuant to section 78 of the Planning Act 2016 (“PA”). It seeks orders that proposed changes to a development approval granted by Judge Quirk on 15 June 2001 are minor changes as defined in Schedule 2 of the PA.
- [2]In the originating application, the background to the proposed changes is set out. The development application giving rise to the approval of Judge Quirk sought a Liquor Barn, public bar, gaming room, bistro, function room and beer garden. This was impact assessable and there were a number of referral agencies for the application. The application was approved by the respondent but subject to a submitter appeal which was filed on 12 October 2000. It is the outcome of this submitter appeal that gave rise to conditions which are the subject of the originating application before me.
- [3]The applicant seeks the deletion of conditions 37(b) and 37(c) of the conditions imposed as a consequence of the development approval. They are summarised in paragraph 10 of the originating application in the following terms:
“Noise
The Developer shall comply with the approved acoustic report dated 29 November 1999 by David Moore and Associates Pty Ltd, as amended by the requirements below, to the satisfaction of the Health and Environmental Protection Manager:
- (a)All refrigeration and air conditioning motors shall be positioned and ‘noise attenuated’ to the satisfaction of the Health and Environmental Protection Manager.
- (b)Amplified music shall only be performed in rooms which are air-conditioned, where all externally opening doors are self-closing and an airlock facility is provided and where windows are sealed and kept closed at all times.
- (c)There shall be no amplified noise outside the tavern building, including in the beer garden.”
- [4]The only contentious issue for determination is whether the changes fall within the definition of a “minor change” in Schedule 2 of the PA and, in particular, whether any of the changes would result in a substantially different development.
- [5]Exhibit 1 before me discloses that the premises, which is a tavern at Yamanto, are surrounded by a number of community uses, including a child care centre and a school as well as various commercial uses. However, there are a significant number of residences in the vicinity. It is submitted by the applicant that there will be no unacceptable noise impact as a consequence of the proposed changes subject to the implementation of the recommended mitigation measures of the applicant’s noise expert.
- [6]The Court, being the responsible entity in determining an application such as this:
“…needs to be cognisant of the fact that while submitters have a right to be heard in respect of an appeal concerning a development application such as this, they are not accorded any further rights to be heard should an application be brought seeking a minor change to the resulting development approval.”[1]
- [7]It is noteworthy that submissions in respect of the proposed development included concerns about noise.[2]
- [8]As to what constitutes a minor change, this is a matter of fact and degree and guidance can be found in Schedule 1 of the Development Assessment Rules in circumstances where quantitative and qualitative matters may be of relevance.[3] In this regard, section 4(g) states that a change may be considered to result in a substantially different development if the proposed change “introduces new impacts or increases the severity of known impacts”.
- [9]As I observed in Northbrook Corp Pty Ltd v Noosa Shire Council:
“The starting point for the assessment of whether the changes result in a substantially different development is the words of the relevant statutory provision. “Substantial” is defined in the Macquarie Concise Dictionary as, inter alia, “essential, material or important”. The question for determination is whether the proposed changes fall within this definition in the context of the development application.”[4]
- [10]The use giving rise to the originating application before me only was approved subject to extremely stringent noise controls. In circumstances where it is clear from exhibit 1 that there are numerous residences in the vicinity of the tavern, this is unsurprising. What the applicant seeks from me is the removal of these controls while denying any of the residents and, for that matter, any of the occupiers of the surrounding community and commercial uses an opportunity to be heard in respect of the likely impacts that will be occasioned as a consequence of the proposed changes.
- [11]On the facts before me, the proposed changes will result in a change to the use of the tavern which is both material and important. It is also a change which introduces a new impact and potentially increases the severity of a known impact which was the subject of a particularly onerous suite of conditions. For these reasons, on the facts before me I find that the proposed changes do not fall within the definition of a “minor change” as the consequence will be a substantially different development.
- [12]I therefore dismiss the application.