Deletion of conditions requiring compliance with an acoustic report found to result in a substantially different development by the Queensland Planning and Environment Court

In brief

The case of Tonic Projects Pty Ltd v Ipswich City Council [2020] QPEC 58 concerned an originating application by Tonic Projects Pty Ltd (Applicant) to the Planning and Environment Court that sought an order that the proposed changes to a development approval for a material change of use for a tavern where "minor changes" under the Planning Act 2016 (Planning Act).

Background

The Applicant sought changes to a development approval for a material change of use for a Liquor Barn, public bar, gaming room, bistro, function room and beer garden (Development Approval) over land located at 406 Warwick Road, Yamanto (Site). The Site is surrounded by community and commercial uses, including a childcare centre and a school, and a significant number of residences.

The Court noted that the Development Approval had been impact assessable and had received submissions raising concerns about noise impacts.

The Development Approval was in the first instance approved by the Ipswich City Council (Council), however, a submitter appealed to the Court against the Council's decision. The Court dismissed the submitter appeal on 15 June 2001 (see Ballymont Pty Ltd & Ors v Ipswich City Council & Ors [2001] QPEC 40).

Court considered law in relation to minor change applications

The Court noted that the relevant issue for determination was whether the Proposed Changes to the Development Approval would result in a "minor change" as defined in Schedule 2 of the Planning Act. In particular, the Court was required to address whether the Proposed Changes would result in a substantially different development.

The Court referred to the relevant law in relation to the determination of an application that proposed changes be "minor changes", and relevantly concluded as follows:

• The Court must be cognisant that while properly made submitters have a right to be heard in an appeal against a development application, they are not accorded any further rights to be heard in an application seeking a minor change (see Tokyo 2 Pty Ltd v Brisbane City Council [2020] QPEC 23 at [4]).

• Whether a proposed change constitutes a "minor change" under the Planning Act is a matter of fact and degree. Guidance can be found in Schedule 1 of the Development Assessment Rules and qualitative and quantitative matters may be of relevance (see Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19 at [14]).

• Substantial, where used in "substantially different development", is generally defined as "essential, material or important" in the content of the relevant development application (see Northbrook Corp Pty Ltd v Noosa Shire Council [2015] QPEC 24 at [13]).

Proposed changes to a condition relating to an approved acoustic report

The Applicant sought the deletion of condition 37(b) and 37(c) of the Development Approval (Proposed Changes), which were stated 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.”

The Council had no objection to the Proposed Changes.

Court concluded that the Proposed Changes would result in a substantially different development

The Court considered the Applicant's submissions, including that there will be no unacceptable noise impacts where the Applicant's noise expert's recommended mitigation measures are implemented. The Court also noted that the occupiers of the surrounding community and commercial uses would not have an opportunity to be heard in respect of any potential noise impacts arising from the Proposed Changes.

The Court concluded that the Proposed Changes were not "minor changes" as defined by the Planning Act and was therefore a substantially different development for the following reasons:

1. The Proposed Changes will result in a material and important change to the use of the tavern.

2. The Proposed Changes will introduce a new impact.

3. The Proposed Changes will potentially increase the severity of a known impact, which was the subject of a particularly onerous suite of conditions.

The Court therefore dismissed the application.