Planning and Environment Court of Queensland dismisses an application to change a development application on appeal on the basis that the changes would introduce new adverse planning impacts

In brief

The case of Newkrop Pty Ltd v Sunshine Coast Regional Council & Anor [2022] QPEC 41 concerned an application to the Planning and Environment Court of Queensland (Court) seeking a change to a development application (Change Application) the subject of the principal proceeding, being for a material change of use of premises to facilitate the expansion of a storage yard and warehouse facility (Development Application) located at 201 West Eumundi Road (Land) which was refused by the Sunshine Coast Regional Council (Council) as directed by the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning (Co-Respondent).

The Applicant sought to make six changes to the Development Application (Proposed Changes). Only the following change was contentious (Proposed Easement) (at [4]):

"The provision of a 6 metre wide easement on a portion of the existing 10 metre wide access handle to the east of the site (on Lot 3 on SP170752), enclosed by a barrier, to ensure adequate manoeuvrability within the site…"

The Council argued that the scale of the Proposed Easement meant that the Change Application constituted "substantially different development" and is not a minor change (at [11]). The Court held that the Applicant did not demonstrate that the Change Application would not result in substantially different development because the Proposed Changes, which involved the expansion to a new parcel of land, would cause new planning impacts being adverse impacts on traffic, vehicle manoeuvring, and access to lots adjoining the Land (at [25]).

Background

The Applicant operates a storage yard and warehouse facility on 1.87 hectares of the Land in accordance with a development approval for a material change of use given by the Council in 2003 (2003 Approval). The Applicant's facility has since expanded and encroached into land that was not the subject of the 2003 Approval, which caused the Council to issue a show cause notice in 2018. The Applicant made the Development Application to regularise the expanded operations. The Council, following a direction from the Co-Respondent, refused the Development Application.

Court finds that the Proposed Changes introduce increased planning and traffic impacts such that Change Application amounts to a substantially different development

The Council argued that the Proposed Changes are not a minor change for the following reasons (at [11]):

"(a) There are new planning impacts arising from the addition of a new parcel of land to the development application which have not been assessed; and

(b) there are increased traffic impacts as a result of the proposed on-site manoeuvring by utilisation of the new land."

The Court considered both issues in turn.

Court finds that the Proposed Easement adds new planning impacts to the Development Application

The Council's town planning expert submitted that "…the real issue is the extension of the development application to a second lot in a manner that may further cut across the controls of State and Local Government planning instruments", and that "…this illustrates the likely need for further assessment of the changed application, a matter that may suggest the development is different" (at [16]).

The Court also heard from the Council's traffic engineering expert who stated as follows (at [19]):

• "…the [Applicant's] proposal will 'functionally amalgamate' a six-metre strip of Easement A, separating it from Lot 3 with a fence or bollards and leaving a maximum width of four metres for access by the other lots."

• "…the change will cause Easement A to be no longer compliant with the Reconfiguring a Lot Code of the Sunshine Coast Planning Scheme 2014…" 

The Court agreed and held that "…the changed application raises a real question about the extent to which Easement A on Lot 3 would continue to satisfy the aims of the [Reconfiguring a Lot Code] if the changed development application was implemented" (at [22]). The Court further held that irrespective of the outcome of this issue, the Proposed Easement "…suggests that what the [Applicant] proposes is substantially different to its original application" because of issues concerning access to the lots adjacent to the Land that were not part of the original Development Application (at [22]).

Court finds a prospect of increased traffic impacts and restrictive vehicle manoeuvring caused by the Proposed Easement

The Court held that the loss of half of the width of a 70-metre section of the existing easement as caused by the Proposed Easement raises the propensity for traffic issues and inconvenience (at [29]). The Court also held that the restricted manoeuvrability of vehicles on the Land caused by the Proposed Easement will be more severe than the original Development Application (at [30]). The Court agreed with the Council's traffic engineering expert that there was a prospect that vehicles will need to reverse around corners to exit the Land (at [24]).

The Court held that while each matter individually may not cause the Proposed Changes to not be minor, the cumulative effects means that the Change Application cannot be considered to be a minor change (see [29] and [30]).

Conclusion

The Court held that the Applicant had not demonstrated that the Proposed Changes would not result in substantially different development and dismissed the Change Application.