U-turn prohibited, unless minor change: Planning and Environment Court of Queensland considers whether the addition of a U-turn to an existing development application constitutes a minor change

In brief

The case of Coles Group Property Developments Limited v Sunshine Coast Regional Council & Ors [2023] QPEC 35 concerned an application to change the development application the subject of the appeal to the Planning and Environment Court of Queensland (Court) by Coles Group Property Developments Limited (Appellant) for a proposed 'homemaker' style development, including a supermarket (Proposed Development) at land in Beerwah, Queensland (Subject Site). 

Background 

The Appellant had previously submitted three applications for stages of the Proposed Development (Development Applications), which were all refused by the Sunshine Coast Regional Council (Council) and were the subject of three separate appeals by the Appellant. Prior to those appeals being heard, the Appellant sought various changes to the Development Applications (at [1]). 

The proposed changes included changes to the proposed land dedication for new roadworks, supermarket loading dock design, driveway rearrangements, parking bays, raised traffic islands and a U-turn facility (U-turn Facility) (see [2] and [3]). The U-turn Facility was proposed to be a new roadway at the north-eastern corner of the four adjoining lots of the Subject Site which leads to a large roundabout sufficient to allow U-turns by large vehicles, including articulated vehicles (at [13]). 

The Council's position and the second co-respondent by election's position was that the changes were minor (at [3]). Village Fair Investments Pty Ltd, being the first co-respondent by election (First Co-Respondent) agreed all proposed changes were minor, except for the U-turn Facility. 

The First Co-Respondent argued that the addition of the U-turn Facility was not a minor change under section 46(3) of the Planning and Environment Court Act 2016 (Qld) and Schedule 2 of the Planning Act 2016 (Qld) (Planning Act) as it would result in a "substantially different development" as it would give rise to the following: 

1. A new access point to the Subject Site (at [15]).

2. Operational aspects as a consequence of "new adverse impacts" (at [17]).

3. An addition of a new parcel of land the subject of the Development Applications (at [21]).

4. The stifling of third party rights (at [23]). 

The First Co-Respondent, referring to schedule 1, rule 4 of the Development Assessment Rules (DA Rules), argued that the relevant impacts of the U-turn Facility that may result in a "substantially different development" were as follows (at [5]):

"(f)    significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or 

(g)    introduces new impacts or increase the severity of known impacts; or …

(i)    impacts on infrastructure provisions."

The Court referred to comments in the earlier decision of Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386 at 392, in which the Court stated that "…the power [to change a development application] is beneficial and the flexibility to modify proposals is an important feature of the process" (at [7]). 

The Court described its approach to determining whether the proposed change is a minor change as broad rather than pedantic, noting that it was "exercising a beneficial power with flexibility" (at [25]). The Court concluded that the Appellant discharged the onus of proving the U-turn Facility resulted in a minor change (at [25]). 

New access proposed by previous plan

The First Co-Respondent argued that the U-Turn Facility would add a new access point as it would allow future internal roadways to connect to the U-Turn Facility for general access purposes (at [15]). However, access was already contemplated on the masterplan where the U-turn Facility would allow traffic, albeit not as a result of the U-turn Facility (at [15]). The second co-respondent by election agreed the U-turn Facility did not represent a new access at the time of the appeals (at [16]). 

In its conclusion, the Court was satisfied that the U-turn facility would not result in a substantially new access point as access was already contemplated at that point (at [25]). 

U-turn Facility as a solution to an existing operational issue

The traffic expert for the First Co-Respondent argued that that the U-turn Facility would facilitate "new adverse impacts…[including] time and distance penalties for traffic" (at [17]). In reply, the Appellant's traffic expert stated that "any time imposition is minimal and an acceptable trade-off in the context of the (significant) existing problem" (at [19]); the "existing problem" being the current right hand turn by heavy vehicles in particular, which the First Co-Respondent conceded is "less than ideal" (at [19]). 

The Court was satisfied that the U-turn Facility will not result in a substantially different development, and provided a solution to the difficulty of the existing right hand turn (at [26]). 

Same Subject Site and not new land

The First Co-Respondent argued that under Schedule 1, rule 4(b) of the DA Rules, the U-turn Facility will result in the addition of a "new parcel of land" to the land the subject of the Development Application as new impacts may be realised where there were previously no impacts (at [21]). The Appellant rejected this idea and argued that the U-turn Facility is entirely within the four lots of the Subject Site, with site coverage being only slightly varied (at [22]). 

The Court was satisfied that the area taken up by the U-turn Facility was entirely within the Subject Site, and did not involve "new" land (at 27]). 

Third party rights no more 

The First Co-Respondent argued that the U-turn Facility would "stifle third party rights" in the context that "…a potential submitter may be concerned about the [U-turn Facility], particularly where it may be used for access" (at [23]). The Appellant argued that the "minor change" test from Schedule 10 of the repealed Integrated Planning Act 1997 (Qld) is irrelevant as it is based on superseded legislation (see [23] and [24]). Further, the Appellant submitted that in the absence of the Proposed Development, an industrial development on the Subject Site would involve more heavy vehicle movements (at [24]). 

The Court held that the current Planning Act (and previously the Sustainable Planning Act 2009 (Qld) [repealed]) does not require a consideration of third party rights (at [28]). Further, it was not clear to the Court that there would be a particular group of "potential submitters whose rights would be stifled" because of the location of the Subject Site, and because neighbouring uses would have an interest in the traffic solution provided by the U-turn Facility (at [28]). 

Conclusion

The Court was satisfied that the Appellant discharged the onus of proving the change was minor and concluded that the addition of the U-turn Facility is a minor change.