Check-in to a recent decision of the Planning and Environment Court of Queensland permitting the removal of a development condition requiring units of a motel to be managed and let by a single operator

In brief

The case of Richardson & Ors v Douglas Shire Council & Ors [2021] QPEC 80 concerned an application to the Planning and Environment Court of Queensland (Court) for a minor change to a town planning consent permit for a motel (Development Approval) on land located at Warner Street, Port Douglas (Subject Land). 

The Development Approval was originally granted in 1994 by the Douglas Shire Council (Council) under the now repealed Local Government (Planning and Environment) Act 1990 (Qld) after the Court made orders by consent in respect of conditions of the Development Approval.

The Development Approval was for 21 motel units and one onsite manager's unit, and relevantly included the following condition (Condition 9), which the Applicants sought to be removed (underlining added):

"Each motel room comprised within the motel development hereby approved is to be managed and let for the temporary accommodation of travellers by a single operator to the satisfaction of the Shire Planner."

The Court held that the proposed change was for a minor change, and allowed the application for the following reasons:

• The deletion of Condition 9 would not affect the level of assessment of the original development application under the 1981 Town Planning Scheme for the whole of the Area of the Shire of Douglas (Original Planning Scheme) and would not affect the physical characteristics of the Subject Land (at [38]).

• There was nothing in the Original Planning Scheme or relevant development control plans requiring that a motel use have an exclusive letting agent (at [40]).

• The deletion of Condition 9 would not have an adverse town planning consequence and would not result in development that does not comply with the Original Planning Scheme (at [43]).

• Condition 9 is not reasonably required for the motel and has no obvious planning purpose for the reason including that "…online accommodation booking services are ubiquitous" (at [45]).

• Other conditions of the Development Approval remain which require the motel to only be used for temporary accommodation.

Parties and issues in dispute

The Council and Third Respondent, the body corporate for the community management titles scheme for the motel, consented to the minor change application and did not take an active part in the proceedings (at [2]).

The Second Respondent who was the owner and occupant of the manager's unit opposed the minor change application for the following reasons:

• Submission 1: Substantially different development – The deletion of Condition 9 would result in substantially different development because it would remove a component integral to the operation of the motel, which was that there be a single operator for management and lettering services, and would change the way the use operates (see [7] and [33]).

• Submission 2: No guarantee of temporary nature – There was no guarantee that the Applicants would comply with conditions prohibiting permanent accommodation (at [58]).

• Submission 3: Letting agreement – The removal of Condition 9 would impact the commercial letting arrangement between the Second Respondent and Third Respondent (at [7]).

• Submission 4: Condition 8 – If Condition 9 is removed, condition 8 will also have to be removed (at [66]).

• Submission 5: Owner's consent – The Second Respondent, as the owner of the manager's unit, has not provided consent to the minor change application being made (at [69]).

The Applicants disagreed with the Second Respondent's submissions and relevantly argued that the number of motel units and the use of the motel units would not be changed, and that the onsite manager's unit would still be occupied on a permanent basis by the person carrying out caretaking and management duties in respect of the common property and is therefore not materially affected (see [34] and [71]).

What is "substantially different development"? 

The Court considered what is "substantially different development" in the context of the definition of "minor change" under schedule 2 (Dictionary) of the Planning Act 2016 (Qld) (Planning Act) and the guidance provided in the Development Assessment Rules and held as follows (see [28] to [31]):

"The applicable principles are well established. The assessment of whether a change would or would not have that effect is a comparative task that involves an evaluation which can be both quantitative and qualitative as may be relevant in the circumstances. Matters of scale and degree are often involved and the particular context and circumstances of the case are important. Whether a proposed change would result in substantially different development is considered broadly and fairly, rather than pedantically."

The Court held that the starting point for determining whether the change application would result in substantially different development is the ordinary meaning of "substantial", which means "essential, material or important" (at [52]).

Deletion of Condition 9 will not result in substantially different development 

The Court held that the deletion of Condition 9 would not result in substantially different development for the following reasons (see [32], [38] to [45], and [56]):

• The temporary nature of the motel use will remain unchanged, even if there is not a sole agent managing and letting each unit. The deletion of Condition 9 will not result in a new use.

• It will not result in the Development Approval applying to a new parcel of land.

• It will not affect the built form or appearance of the existing motel building, nor will it increase or introduce new impacts on traffic flows or networks or other infrastructure.

• The Original Planning Scheme does not prohibit a motel from being self-contained or strata titled and does not require that a motel be "managed and let by a single operator", and town planning evidence supports the premise that the Original Planning Scheme reflected a "…'first principles' town planning approach which regulates the ultimate use by class of user, and not by form of development".

• It will not have an adverse town planning consequence, result in development that does not comply with or changes the level of assessment under the Original Planning Scheme, nor will it change the physical characteristics of the Subject Land or the form of the development.

• The Development Approval was granted "before the advent of accommodation booking services" when single operator letting and management was common, but that was not a requirement under the Original Planning Scheme. Condition 9 is not reasonably required by a motel use in 2021 where "online accommodation booking services are ubiquitous".

Second Respondent's other submissions unpersuasive

In respect of the Second Respondent's other submissions against the minor change application, the Court held as follows:

• Submission 2: No guarantee of temporary nature – The Court held that it proceeds on the premise that conditions will be complied with and is not to assume a party will act in breach of a development condition (at [58]).

• Submission 3: Letting agreement – The agreement between the Second and Third Respondents is not relevant to construing a development approval, which "…is to be construed without reference to extrinsic materials;…A development approval is a formal document that operates in accordance with its own terms. Generally, reference to other documents is not permissible" (at [61]).

• Submission 4: Condition 8 – Condition 8 relates to the maintenance by the manager of a room register and does not require that the manager be a letting agent. Therefore, condition 8 can sensibly operate without Condition 9 (at [66]).

• Submission 5: Owner's consent – The Court held that the onsite manager's unit was "excluded premises" under section 79(1A) (Requirements for change applications) of the Planning Act and therefore the Applicants complied with section 79(1A) because Condition 9 did not materially affect the use or operation of the onsite manager's unit or the common property and the Second Respondent's consent was unreasonably withheld (see [70] to [72]).

Other considerations weighed in favour of approving the minor change application

The Court relevantly considered as required under section 81(2)(b) (Assessing change applications for minor changes) of the Planning Act the two properly made submissions lodged with the Council during the public notification stage of the original development application, which related to the proper characterisation of the use as temporary or permanent accommodation and the impacts of the motel on amenity and infrastructure. 

The Court was satisfied that the deletion of Condition 9 would not affect the management of the hotel nor give rise to additional concerns relevant to the properly made submissions (at [48]).

The Court may under section 81(5) of the Planning Act give the weight it considers appropriate to a statutory instrument in effect when the change application is made. 

The Court in that regard considered the Douglas Shire Planning Scheme 2018 Version 1.0 (Current Planning Scheme) and held that the removal of Condition 9 would not result in prohibited development, a referral to a referral agency, public notification, nor non-compliance with the assessment benchmarks in the Current Planning Scheme that related to "short-term accommodation", which may be applicable to a "motel" use.

Conclusion

The Court allowed the minor change application to remove Condition 9 for reasons including that the condition was not reasonably required to ensure the motel operated temporarily and its removal would not result in substantially different development.