Franklyn Harvesting P/L & Ors v Cairns Regional Council & Ors [2012] QPEC 63

Background

This matter was an application in pending proceeding for an order that proposed changes to that development application are a minor change for the purposes of s 350 of the Sustainable Planning Act 2009 (‘SPA’).1 This is opposed by the first co-respondent by election, Lend Lease.

The proceeding itself is an appeal by Franklyn Harvesting (‘Franklyn’) against an approval by the Cairns Regional Council (’Council’), of a development application for a material change of use for an extension of an existing shopping centre site (“The Site”).

Impacts of Proposed Changes

The submissions made on behalf of Lend Lease challenged almost every aspect of the proposed changes. As summarised, the asserted new impacts would be:

  • that two homes, situated at 58 and 60 Norfolk Circuit, on the Site’s southern boundary would have a car park, which would now be considerably closer and within some 10 metres of the dwellings.
  • the increase in the area contended to be “identified” as being for a Discount Department Store (‘DDS’), would constitute a change from an unknown mix of tenants to a DDS-based proposal, thereby taking the proposal “into territory which is directly contrary to the planning scheme”; and
  • the introduction of a new source of “friction” for vehicle movements to and from the car park.

It was submitted, in opposition to the application, that the additional impacts would:

  1. exacerbate the types of impacts challenged in the existing appeal; and,
  2. change the way that the proposal operates by an intensification of traffic loading.

Further, it was submitted that there would be additional impacts caused by the increase in the “new shops” size.

Issues Considered

Dorney QC DCJ noted that “the mere absence of a DDS reference” in the Cairns Plan did not incline him “at this stage” to be persuaded that the question was indisputable by Franklyn. His Honour concluded that “nothing turns, for present purposes at least, on a failure to include, on the relevant drawings, the actual words ‘Discount Department Store’ rather than, as appears both on the approved plan and the modified plan, the words ‘New Shops’.”

The Court used the appropriate gross lettable floor area figures to determine the percentage increase in size, which on that basis, was calculated as an overall shopping complex increase of 5%.2 His Honour rejected Lend Lease’s conclusion that the proposed increase in the floor area of the shopping centre was in excess of the ‘quantum’ of 6% to 7%. Since the issue of the ‘critical point of distinction’ remained for further determination at trial, the only remaining concern was the relativity of the change. The Court concluded that the proposed expansion of the “DDS” was modest in the context of the overall size of the shopping centre expansion as so far approved; and, since the publicly notified area (of 5,000m²) is almost identical to that in the modified plan, this factor alone does not give rise to any significant additional impacts.

Dorney QC DCJ did not accept that it had been established that the ‘additional’ traffic loading was something ‘not less than 5% of existing volumes’. There were concerns raised by Lend Lease about changes proposed for an intersection and an increase in the number of car parks on the site. However, these modifications were dismissed by His Honour as “not other than minor” changes.

His Honour concluded that there was no identified basis for looking at built form changes simply on the basis of the confined effect on two neighbouring residences. His Honour conceded that this outcome does not necessarily conclude the issue on the actual impacts on those two residences; but, limited to built form, the modified plan does not dramatically change it in terms of scale, bulk and appearance. On the issue of the impact on the two neighbouring residences, His Honour found that the consequences were “not major”, especially noting the proposed protections.

Decision

As addressed separately, none of the identified impacts reach the standard of resulting in a “substantially different development”. Nevertheless, as is clear from the Statutory Guidelines 06/09, it is only by considering all factors in combination that an appropriate conclusion can be finally reached.

Taking all the relevant factors canvassed into account, and considering them as a whole, His Honour found that the relevant changes did not result in a substantially different development.

For these reasons, the changes to the proposed development were declared a minor change for the purposes of s 350 of the SPA.