Same, same but different: a proposal to change the description of a use by adding words narrowing the future occupiers held to constitute a proposal for a different use

In brief

The case of Rochedale Piazza Pty Ltd v Brisbane City Council & Ors [2020] QPEC 30 concerned an application in pending proceeding to the Planning and Environment Court (Court) for a minor change to a development application for a development permit for a material change of use for what was described in the development application as a relocatable home park, at Rochedale. 

The Council refused the development application and the applicant commenced an appeal in the Court against the refusal. The applicant then sought to make a change to the development application. 

The applicant described the proposed development in the development application as being a material change of use for a relocatable home park being a defined use under the City Plan 2014 (City Plan). The supporting material lodged with the development application described the proposed development with more particularity; being for a "retirement and residential care facility"; being for the provision of "additional housing options for older persons within the catchment" and to be carried out and operated by TriCare, which was stated to be "recognised as industry leaders in the delivery of best practice retirement living and residential aged care housing options" (see paragraph [6]).

The applicant sought to change the description to being for a material change of use for a relocatable home park (for seniors and retirees), and argued that the change was a minor change under the Planning Act 2016 (Planning Act).

The change sought was unusual given that most minor change applications involve a physical change to the proposed development, whereas what was sought was a change to the description of the proposed development.

The Court considered the introduction of the words "for seniors and retirees", and found that such a change was not a "benign change" (see paragraph [38]), did not constitute a "minor change" under the Planning Act, and dismissed the application.

Applicant argued that the purpose of the change was for certainty and clarity

The Applicant argued that the purpose of the change was to "provide certainty at an early stage of the appeal" and that "[i]t 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" (see paragraph [17]).

The Applicant also argued that "the change does no more than confirm something that was apparent from a proper objective, reading of the Development Application itself" (see paragraph [18]).

Council argued that the purpose of the change was to change the use

The Council argued that the change was not for a change to the description of the proposed development. The Council argued that instead the change was for a change to the use for which the development permit was sought, the relevance being that the narrowing of the intended occupants contemplates a use as a retirement facility which is a defined use under the City Plan. The Retirement and Residential Care Facility Code commenced after the development application was made but before the decision notice was issued by the Council, and was not an assessment benchmark for the development application. 

Court categorised the change as being for a change to the use

The Court accepted the Council's argument that what was being sought was a change to the use for which the development permit was sought, such that it could no longer be reasonably described as a relocatable home park. The Court was therefore satisfied that the change would result in a substantially different development, and was not a minor change. 

The Court did not make a finding in respect of the proper categorisation of the proposed changed use, and stated that it was for either a retirement facility or for a retirement community relocatable home park, being the description suggested by the applicant's town planning expert. Whatever the categorisation, the Court found that the Retirement and Residential Care Facility Code ought to have played a role in the decision-making process by the Council, and it did not as the development application was described as being for a relocatable home park with no express limitation on the demographic of its occupiers.

The Court also considered the applicant's argument that the purpose of the change was to provide certainty and clarity. The Court held that the intended use was obvious from the development application. The Court adopted some of the language of the applicant's town planning expert, being that "it is unnecessary to make any more explicit something that was otherwise clearly implicit from a reading of the Development Application and supporting material". 

Conclusion

In conclusion, the Court stated that "[i]n 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" (see paragraph [41]). The Court therefore dismissed the application for the minor change.