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Yaralla Sports Club Inc v Gladstone Regional Council[2021] QPEC 74

Yaralla Sports Club Inc v Gladstone Regional Council[2021] QPEC 74

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Yaralla Sports Club Inc v Gladstone Regional Council [2021] QPEC 74

PARTIES:

YARALLA SPORTS CLUB INC
(applicant)

v

GLADSTONE REGIONAL COUNCIL
(respondent)

FILE NO/S:

1649 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

30 November 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2021

JUDGE:

Rackemann DCJ

ORDER:

Order as per amended draft

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where the applicant made a development application for both a development permit and preliminary approval – where the application for preliminary approval included a variation request – where the applicant seeks a change to the variation request – whether the applicant made a competent development application for a preliminary approval or a bare variation request – whether the Court can consider a change to a variation request – whether a variation request is taken to be part of a development application – whether the changes to the development application are minor – whether the changes will result in substantially different development

CASES:

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council [2018] QPEC 63

LEGISLATION:

Planning Act 2016 (Qld) ss 49(1), (2), 50(3), 61(1), sch 2

Planning and Environment Court Act 2016 (Qld) s 46(3) 

COUNSEL:

A Skoien for the applicant 

T Webb (sol) for the respondent

SOLICITORS:

McCarthy Durie Lawyers for the applicant 

McCullough Robertson Lawyers for the respondent

  1. [1]
    The Court, in considering this appeal, cannot consider a change to the development application unless the change is only a minor change to the application (section 46(3) of the Planning and Environment Court Act 2016 (Qld)). What constitutes a minor change is defined by reference to schedule 2 of the Planning Act 2016 (Qld).  That definition requires the development application not to result in a substantially different development.  There is no other part of the definition which would cause difficulty in this particular case. 
  1. [2]
    Section 46(3) of the Planning and Environment Court Act refers to a change to the development application.  The term development application is in turn defined by reference to schedule 2 of the Planning Act to mean an application for a development approval.  The term development approval is, in turn, defined in the schedule to the Planning Act by reference to section 49(1), which defines a development approval to be a preliminary approval, or a development permit, or a combination of the two. 
  1. [3]
    In this case, the appellant says that it made a development application for both a development permit and a preliminary approval. The application for a development permit was for a theatre. The application for a preliminary approval was, it contends, an application for a preliminary approval for a material change of use for short-term accommodation. Further, it says that the preliminary approval included a variation request seeking to vary the effect of the local planning instrument with respect to future development for that purpose.
  1. [4]
    The change which the appellant now seeks is a change to the variation request. There are two threshold questions. The first threshold question is whether, in fact, the appellant ever made a competent development application for such a preliminary approval. There is no doubt that, in this development application, the appellant sought a variation request. A variation request is, however, not something which can be applied for in isolation. Pursuant to section 50(3) of the Planning Act, a variation request is something which may “also” be included in the development application for a preliminary approval.  One must, therefore, have an application for a preliminary approval before you may also include a variation request.  As the appellant’s counsel freely conceded, the drafting of the application and the town planning report which accompanied it was inelegant in this respect.  The documents create some uncertainty as to whether what was sought was a bare variation request.
  1. [5]
    The planning assessment report, in particular, speaks of a variation request and a material change of use for that component of the application, being the theatre, for which a development permit was being sought. The short-term accommodation was discussed under the heading “Variation Request Component”. This is not the first time this Court has been confronted with applications which include variation requests which are less than elegantly phrased. Another example is Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council [2018] QPEC 63.  It is a matter to which those responsible for lodging applications should pay close attention. 
  1. [6]
    There are, however, I consider, sufficient indications that a preliminary approval was sought for the short-term accommodation use. Part 3 of the development application form sets out the development details. In section 1 of that part, the appellant indicated that it was seeking a preliminary approval that includes a variation approval. In section 2, where further details are given, the proposed material changes of use are described as: on the one hand, theatre, being the use for which a development permit was sought; and on the other hand, “variation request”, which was an unhelpful general description of a proposed use sought in the preliminary approval, but the description “short-term accommodation” was also used to describe the planning scheme definition for the proposed material change of use for that component of the application.
  1. [7]
    The council’s confirmation notice in setting out the details of the application indicated that the application sought, both a preliminary approval for a material change of use made assessable by the planning scheme, and also a development permit for material use made assessable by the planning scheme, which is consistent with the application having been made for two material changes of use.
  1. [8]
    The planning assessment report accompanying the application was, as I have noted, inelegant, but any reader of what it said about the variation request component could not have been mistaken that what was envisaged was future development for short-term accommodation.
  1. [9]
    In the circumstances, I consider that the application is appropriately construed as one which sought a preliminary approval for a material change of use for future short-term accommodation and a variation request in relation to that component, in addition to the development permit for the material change of use for the theatre.
  1. [10]
    The second threshold question relates to whether the Court can consider a change where the change relates to the variation request. I have already noted that the Planning and Environment Court Act defines a development application by reference to the Planning Act, and that the Planning Act in turn defines that expression by reference to the definition of a planning approval, which takes one to section 49, which defines that expression by reference to, amongst other things, a preliminary approval.  That term is then defined in section 49(2) to mean the “part” of the decision notice for a development application that approves the development to the extent that is stated in the decision notice, but does not authorise the carrying out of assessable development.  Read in isolation, that might be seen to exclude the variation request, which is not something which itself approves development. 
  1. [11]
    There are, however, other indications that where development applications are for preliminary approvals, including variation requests, the variation requests form part of the development applications, and the variations form part of the subsequent approvals. In particular, schedule 2 to the Planning Act defines the expression, variation approval, as follows:

Variation approval means the part of a preliminary approval for the premises that varies the effect of any local planning instrument in effect for the premises.

  1. [12]
    In the same schedule, the expression, variation request, is defined to mean as follows:

Variation request means part of a development application for preliminary for premises that seeks to vary the effect of any local planning instrument in effect for the premises. 

  1. [13]
    Those definitions expressly define variation requests and variation approvals by reference to them being “part of” development applications and preliminary approvals respectively. Further, it has already been noted that section 50(3) of the Planning Act, in providing for variation requests, does so by providing that a development application for a preliminary approval “may also include” such a request.  That language sits comfortably with the notion that a variation request is something which is included in, and forms part of, a development application for a preliminary approval.  It is not something which stands separate from it.  Further, section 53 of the Planning Act requires notice of a development application to be given if “the application includes a variation request”. That language, again, is consistent with the variation request forming the part of the development application. 
  1. [14]
    The result of public notification leads to a public opportunity to make a submission about the application, rather than just the variation request of which it forms part. Section 61 of the Planning Act deals with assessing and deciding a variation request.  Subsection (1) states that the section applies to “a part of a properly made application, that is, a variation request”. Again, the statutory language is consistent with the variation request forming part of the development application. 
  1. [15]
    Further, as was pointed out in the written submissions for the respondent, an interpretation of the legislation which treated variation requests as distinct from the development application itself would have consequences for the appeal rights of applicants, which do not expressly extend to appeals against refusals of variation requests. That is a further indication that a variation request is taken to be part of the development application, the decision on which, if adverse to the applicant, may be appealed by the applicant.
  1. [16]
    When the legislation is read as a whole, the irresistible conclusion is that the variation request forms part of the development application for the purposes of the Planning Act, and more particularly, for the purposes of section 46(3) of the Planning and Environment Court Act.  Attention then turns to the consideration of the change.  In this case, whether it is minor, and whether the Court ought to consider the proposal on the basis of the change. 
  1. [17]
    I have already observed that, insofar as the definition of minor change is determined, the matter of potential concern is whether the change will result in substantially different development. It might, at least at first blush, be thought that in that respect the drafter did not have a change of a variation request firmly in mind. However, the test is one which can be considered in the context of a change to a variation request. The test is one which requires consideration of what will “result” from the change.
  1. [18]
    A consideration of the alterations of variations may lead to a conclusion that the changed variations would facilitate development of a substantially different kind. Further, one should not lose sight of the fact that section 46(3) does not provide that the Planning and Environment Court must consider any change to the development application so long as it is minor. Rather, it says that the Planning and Environment Court cannot consider a change unless it is only a minor change. The Court has a discretion, even if the change is only minor.
  1. [19]
    Attention then turns to the particular changes in this case. The land the subject of the development application is currently improved with an existing sports club complex, which includes, as one of its components, a hotel. The preliminary approval relates to future expansion of the short-term accommodation offered by the hotel. The variations, which were the subject of the application, were altered as a result of the information request.
  1. [20]
    The variations, as they stood at the time of the council’s determination, sought different variations depending upon whether the short-term accommodation would be in a building with a maximum height which was within or which exceeded 12 metres. If the maximum building height exceeded 12 metres, then the future application would be impact assessable and subject to certain assessment benchmarks.
  1. [21]
    It is proposed, by the subject changes, to delete any alterations to the applicable provisions in respect of impact assessable development for short-term accommodation. That is, there is proposed still to be some alteration for certain short-term accommodation, which will be rendered code assessable, but the appellant no longer seeks any alteration to the effect of the planning scheme in relation to any development which falls outside of that for which it now seeks code assessment in the future. In effect, it abandons that part of the variations.
  1. [22]
    Insofar as code assessment is concerned, when the matter was before the council, code assessment was sought in the future for any short-term accommodation on the site where there was a maximum building height not exceeding 12 metres, and it was sought to specify four codes, as well as a vehicle parking rate schedule. There are two broad types of changes sought to be made. The first is to confine the range of future short-term accommodation that would be rendered code assessable, rather than impact assessable. This is to give greater certainty as to what is intended in the future, rather than simply any development of that kind to a maximum of within 12 metres.
  1. [23]
    Instead, such development will only be code assessable if it is within the existing building footprint of the existing hotel and does not exceed 94 units in total for the site, and its building height does not exceed 12 metres. That obviously is a change which decreases, rather than increases the scope of the development. It does not result in anything substantially different, but it gives greater certainty as to what can happen by way of code assessment and provides the community with greater input, by way of impact assessment, for any other development by way of short-term accommodation.
  1. [24]
    The second broad change is a change to the assessment benchmarks for that development which is code assessable. There are two codes, namely the Development Design Code and the Landscaping Code, which remain the same. The vehicle parking rate schedule is to be deleted, but that is on the basis that it is called up, in any event, in the Development Design Code, and so it does not involve any change in effect. There is to be the deletion of the words, “any applicable overlay code”. However, the affidavit material demonstrates that that is because the applicable overlay codes do not have any requirements of any practical consequence in relation to short-term accommodation of the kind that meets the code assessment criteria, such that that deletion also has no practical effect.
  1. [25]
    The last change is that the previously Nominated Mixed Use Zone Code is to be replaced by the Yaralla Sport and Recreation Code. The material before me provides a comprehensive comparison between that code, which is a specific purpose-designed code for this site, and the Mixed Use Zone Code, and shows that the new code largely replicates the relevant requirements of the Mixed Use Zone Code whilst omitting those parts of the Mixed Use Zone Code which are inapplicable or not relevant.
  1. [26]
    The change to the codes will not have the effect of resulting in substantially different development. A further change is the adoption of a masterplan and site plan which, again, adds to the level of certainty now being provided.
  1. [27]
    For the reasons which I have given, none of the changes individually result in substantially different development, nor, in my view, do the changes collectively have that result. In my view, the changes are minor, and I think it is appropriate, as a matter of discretion, that the matter proceed on the basis of the changes.
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Editorial Notes

  • Published Case Name:

    Yaralla Sports Club Inc v Gladstone Regional Council

  • Shortened Case Name:

    Yaralla Sports Club Inc v Gladstone Regional Council

  • MNC:

    [2021] QPEC 74

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    30 Nov 2021

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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