PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Newkrop Pty Ltd v Sunshine Coast Regional Council & Anor [2022] QPEC 41	
PARTIES:	NEWKROP PTY LTD
(Appellant)	
	v	
	SUNSHINE COAST REGIONAL COUNCIL
(Respondent)	
	CHIEF EXECUTIVE DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING
(Co-respondent)	
FILE NO/S:	117/2021	
DIVISION:	Planning and Environment	
PROCEEDING:	Application in a pending proceeding 	
DELIVERED ON:	24 October 2022	
DELIVERED AT:	Maroochydore	
HEARING DATE:	21 October 2022	
JUDGE:	Cash DCJ	
ORDERS:	The application is dismissed.	
CATCHWORDS:	PLANNING AND ENVIRONMENT–– APPLICATION IN PENDING PROCEEDINGS – APPLICATION FOR A MINOR CHANGE – appeal against refusal of an application for a development permit for a material change of use – where the appellant proposes to change the development application – where the change would cause the application to apply to a new parcel of land – where the appellant proposes to take up part of an adjacent easement on a separate lot – whether the change is a minor change according to the legislative definition – whether the appellant has shown the change does not result in substantially different development	
LEGISLATION:	Planning Act 2016 (Qld), s 68, s 229, Schedule 1, Schedule 2 
Planning and Environment Court Act 2016 (Qld), s 46, Schedule 1 
Sunshine Coast Planning Scheme 2014	
CASES: 	Cleanaway Solid Waste Pty Ltd v Ipswich City Council and Ors [2020] QPEC 47; [2021] QPELR 809, [4], [43], [52] followed
Emaaas Pty Ltd v Brisbane City Council [2014] QPEC 31; [2014] QPELR 579, [15] applied
GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, [49] applied
Heritage Properties Pty Ltd & Anor v Redland City Council & Ors [2010] QPEC 19; [2010] QPELR 510, 512 applied
Zumbo v Brisbane City Council & Ors [2020] QPEC 14, [4] applied	
APPEARANCES:	T Stork for the appellant
J Bowness for the respondent
J Ireland (solicitor) for the co-respondent	
SOLICITORS:	P&E Law for the appellant
Sunshine Coast Regional Council Legal Services for the respondent
Hopgood Ganim for the co-respondent	

Introduction
[1]	This is an application in a pending proceeding brought by the appellant. The principal proceeding is concerned with an appeal against the refusal of the respondent Council to issue a development permit for a material change of use concerning land at Eerwah Vale. The appellant wants to change its development application that is the basis of the appeal and have the appeal decided on the changed application. The application is opposed by the Council. The Chief Executive of the Department of State Development, Manufacturing, Infrastructure and Planning is a co-respondent to the appeal. The co-respondent opposes the appeal but has taken a neutral position in respect of this application. Before turning to the application, it is necessary to set out some relevant background.
[2]	The appellant has an interest in land at 201 West Eumundi Road, Eerwah Vale. The land is 1.87 hectares in area and is adjacent to the Bruce Highway, which is to the north. The appellant used the land for a mushroom farm until 2003, when it sought and was given permission for a material change of use to establish a storage yard and warehouse facility. Since then, the appellant has operated the site in this manner. The site consists of sheds, storage containers and hardstand areas. It seems that over time the appellant’s operation has expanded and encroached into land that is not the subject of the 2003 approval, including into an easement abutting the eastern side of the land. By 2018 the Council was concerned that the expansion and encroachment meant the site was operating outside of the terms of the 2003 development permit. A show cause notice was issued in September 2018. In response the appellant made an application to the Council for a further material change of use that would address the concerns raised by Council in the enforcement notice and make regular the use of the site. The development application required a response from the co-respondent as a concurrence agency. The co-respondent directed the Council to refuse the development application, which the Council did in June 2020, adding as well its own reasons for refusal.
[3]	The appeal against this refusal has been set down for hearing for five days commencing 21 November 2022. The matter is well progressed. Various experts have been engaged and provided reports. The issues in dispute have been narrowed and agreed. Among them is an issue concerning what the Council says is an unacceptable impact on visual amenity from the Highway, a designated scenic route. Another issue is whether there will be unreasonable impact upon the amenity and character of the locality, which is a rural area. A third issue is whether the site provides for adequate vehicle servicing and manoeuvring. According to the town planner engaged by the appellant, the proposed changes are intended to address at least some of these concerns.
The changes
[4]	The proposed changes are summarised in the appellant’s application. They are set out below.
(a)	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;
(b)	The removal of storage containers to accommodate manoeuvrability within the site as identified on attachment C to the Traffic JER, drawing 22.S.66.3, with a consequential reduction in site cover;
(c)	Additional garden beds at the eastern ends of the container rows marked as having areas of 443m2 and the two marked as 280m2, respectively, as recommended in the visual amenity JER;
(d)	The removal of three storage containers from the eastern end of the container rows marked as having an area of 443m2 and the removal of two storage containers from the eastern end of the container row marked as having an area of 280m2 to accommodate the additional garden beds described in the preceding paragraph;
(e)	A 7 metre wide access strip on the north eastern side of the vehicle storage shed to facilitate access to the vehicle storage and open hardstand areas as recommended in the traffic JER, resulting in a reduction in open storage area (from 814m2 to 583m2);
(f)	An additional 1.5 metre wide garden around the open storage area as recommended in the VA JER.
[5]	Items (b), (c), (d) and (f) seem intended to address the visual amenity and character concerns that are in issue in the appeal. The Council did not submit these changes provided a basis to refuse the present application. Item (e) would address traffic impacts but as it is contained within the subject land, it is not of concern to the Council. What is of concern is the proposed change described in (a). If approved, this would allow the appellant to take up a six-metre-wide portion of the ten-metre-wide easement and will formalise the expansion of the appellant’s operations onto another parcel of land. The Council submits the appellant cannot show that the result will not be ‘substantially different development’, and as such the court is precluded from hearing and deciding the appeal based on the changed proposal.
[6]	Before dealing with the relevant disputed issues, it is helpful to make some observations about the legal principles relevant to the application.
Legal principles
[7]	The principal proceeding is a ‘planning act appeal’. The nature of such appeals is described in section 46 of the Planning and Environment Court Act 2016 (Qld) (PECA). The starting point is that this court is to consider the development application as it was made to the Council. Changes to development applications may only be considered in the appeal in limited circumstances. Relevantly to this application, subsection 46(3) provides:
The P&E Court can not consider a change to the development application unless the change is only a minor change to the application.
[8]	A ‘minor change’ is a change that
(a)	for a development application—
(i)	does not result in substantially different development; and
(ii)	if the application, including the change, were made when the change is made—would not cause—
(A)	the inclusion of prohibited development in the application; or
(B)	referral to a referral agency if there were no referral agencies for the development application; or
(C)	 referral to extra referral agencies; or
(D)	a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or
(E)	public notification if public notification was not required for the development application
[9]	As this application finally proceeded, there was no real issue that any of the disqualifying matters in (a)(ii) were relevant. The issue in dispute turned upon whether the proposed changes are of a kind that ‘does not result in substantially different development’. This phrase is not specifically defined. But the Development Assessment Rules promulgated pursuant to section 68 of the Planning Act 2016 (Qld) (PA) and set out below provide some guidance.
Schedule 1: Substantially different development
…
3.	In determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development, in the context of the change proposed.
4.	A change may be considered to result in a substantially different development if any of the following apply to the proposed change:
(a)	involves a new use; or
(b)	results in the application applying to a new parcel of land; or
(c)	dramatically changes the built form in terms of scale, bulk and appearance; or
(d)	changes the ability of the proposed development to operate as intended; or
(e)	removes a component that is integral to the operation of the development; or
(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 
(h)	removes an incentive or offset component that would have balanced a negative impact of the development; or
(i)	impacts on infrastructure provisions.
[10]	Reference to these rules is not expressly required by the legislation, and the rules do not provide an exhaustive list of what might be relevant considerations. But both parties submit, and I agree, that it is helpful to have regard to the rules in deciding the present application. Of course, the rules are not a code, and a conclusion that the change could result in one or more of the matters listed under item 4 does not necessarily mean the change is not a ‘minor change’. It remains necessary to consider the facts of circumstances and to answer the question posed by the legislation – has the appellant shown the proposed change does not result in substantially different development? The following principles are also to be borne in mind. Whether or not a change is a minor change is a question to be considered broadly and fairly. The proposed change should be considered from a qualitative as well as quantitative perspective. It is the result of the change, rather than the significance or importance of the change (which may be different matters), which is the focus of the court’s consideration. Ultimately, it is a matter of fact and degree whether the proposed change is a minor change. The appellant bears the onus of persuading the court that the changes are minor changes.
The issues to be decided in this application
[11]	Despite the onus being on the appellant, it is convenient to first consider the objections of the Council as they represent the real issues to be decided. In written submissions filed by leave at the hearing, the Council submitted ‘[t]he only question for the Court to determine is whether the proposed changes constitute “substantially different development”’. Two specific matters were identified as having the result that the changes are not a ‘minor change’:
(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.
[12]	There is no suggestion by the Council that the changes would result in a material change in the form, scale, or purpose of the development. In fact, the changes would see a modest reduction in the scale of the development and the facility would still be used as a warehouse. It is only the utilisation of part of the 10-metre-wide easement on the adjacent lot (‘Easement A’) that is said to produce a substantially different development. The council refers to items 4(b) and (g) of the Development Assessment Rules and argues that the expansion to a new parcel of land introduces new impacts or increases the severity of known impacts. These matters are said to be indicators that the change could result in substantially different development. The result, it is submitted, is that the appellant cannot show the development is not substantially different. To decide if the Council’s submission is correct, it is necessary to have regard to the evidence relied upon at the application.
Relevant evidence
[13]	The appellant relied principally upon affidavits and reports from Stephen Buhmann, a town planner, and Stuart Holland, a traffic engineer. For the Council primary reliance was placed on the affidavits and reports of Christopher Buckley, a town planner, and Andrew Douglas, a traffic engineer. 
[14]	Mr Buhmann acknowledged that the proposed change would mean the development application applied to a new parcel of land. It is apparent that Mr Buhmann does not consider this to be significant from a planning perspective because:
(a)	Taking up part of the easement would ‘simply formalise the way in which the access handle was already being used’; and
(b)	The owners of the subject land and the adjacent lot are, for practical purposes, the same.
[15]	These matters lead Mr Buhmann to think it is unlikely there would be any objection to the proposed change. Mr Buhmann also expressed the view that the 2003 material change of use approval already contemplated the use of part of the easement. This view is based upon a plan associated with the 2003 development application. However, this plan does not seem to reflect a reconfiguration of the lots, also approved in 2003, that had the result that the subject land does not have any access rights over Easement A, or any other part of the adjacent Lot 3. Whether or not this is a misunderstanding does not matter, as it is clear that Mr Buhmann agrees the proposed changes would mean the development application applied to a new parcel of land, being the adjacent lot on which the easement is located. 
[16]	Responding to Mr Buhmann’s affidavit, Mr Buckley noted that the absence of objection is not to the point, and 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. In this regard Mr Buckley observes that Lot 3, which contains Easement A, is affected by several planning scheme overlays. While Mr Buckley does not suggest that each of the overlays will be relevant, he is of the view that this illustrates the likely need for further assessment of the changed application, a matter that may suggest the development is different.
[17]	Mr Holland for the appellant addressed traffic concerns arising from the proposed changes. He deposed that taking up a six-metre-wide portion of the easement for some of its length will address concerns about on-site manoeuvring on the subject land. As to the potential impact of the loss of some of the easement Mr Holland noted the following.
(a)	The affected lots each have the same owner;
(b)	The relevant planning scheme code does not mandate a 10-metre width for rural easements;
(c)	The part of the easement that will be reduced to a four-metre width is only about 70 metres long, is straight and level, and is some 80 metres from the road access;
(d)	The four-metre width makes adequate provision for a driveway that is 3.5 metres wide.
[18]	As a result, Mr Holland is of the opinion that there will be only occasional minor inconvenience to users of the easement, arising when it happens two vehicles are travelling in opposite directions, and one must stop to allow the other to pass. For this reason, Mr Holland does not think the change introduces a new impact or increases the severity of an existing impact to the extent the changes would result in a substantially different development.
[19]	Mr Douglas for the Council provided an affidavit that was responsive to the traffic matters identified by Mr Holland. Mr Douglas noted that Easement A may be required to serve three different rural residential lots, two of which are already improved with residences. In Mr Douglas’s view, the subject site does not enjoy any right of access over Easement A or any part of the Lot 3. This is a view that is supported by the terms of the easement. That it is now proposed that the development application will include part of Lot 3 is of concern to Mr Douglas. He notes that the appellant’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. Mr Douglas raised the concern that the change will cause Easement A to be no longer compliant with the Reconfiguring a Lot Code of the Sunshine Coast Planning Scheme 2014 (‘SCPS’). It is convenient to consider the matters raised by Mr Douglas before dealing with some other evidence. 
Reconfiguring a Lot Code
[20]	Among other things, the Code aims to ensure appropriate, suitable, and safe access from lots to public roads. Performance Outcome 6 (‘PO6’) deals with subdivisions that involve rear (or hatchet or battle-axe) lots. In terms of access, PO6 provides rear lots should only be created where:
(f)	the safety and efficiency of the road from which access in gained is not adversely affected; and
(g)	vehicular access to rear lots will not have a detrimental impact on lots adjoining the access strip due to excessive noise, light, dust, stormwater runoff and the like.
[21]	The associated Acceptable Outcome, AO6, promotes compliance with a table of requirements for access strips to rear lots. This table sets out a requirement for rural lots (as is the case here) that access strips be a minimum of 10 metres wide and have a minimum driveway width of four metres. An understanding of the purpose of these provisions is aided by regard to the comment associated with them (emphasis added):
The proposed development accommodates rear lots which are suitably-dimensioned and serviced through appropriate driveway widths and locations.
[22]	It may immediately be noted that the proposed change will not affect the safety and efficiency of West Eumundi Road from which the rear lots are accessed. It may also be the case that that change proposed by the appellant is unlikely to have a detrimental impact on adjacent lots. But these matters, and compliance with PO6 generally, are not matters I need to decide in this application. The same can be said of compliance with AO6, though there may more obviously be an issue with the width of Easement A if the changes were implemented. What is apparent is 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 code if the changed development application was implemented. This may or may not be resolved in favour of the appellant. But the Code provisions raised by Mr Douglas and the Council show the intention of the SCPS is to preserve good access for rear lots. The proposed changes raise issues concerning access for the rear lots that were not present in the original development application. It is the fact that these issues now arise because of the proposed changes that has importance in this application. Whatever the final answer to these issues might be, that they are now raised by the proposed change suggests that what the appellant proposes is substantially different to its original application.
Bushfire hazard overlay code
[23]	Mr Douglas also raised the potential relevance of the Bushfire hazard overlay code of the SCPS. Some parts of the lots abutting the subject site are covered by this overlay. The purposes of the Bushfire code include to minimise risk to people, property, and the natural environment and to assist emergency services in responding to any bushfire threat. Mr Douglas cited Performance Outcome 6 (‘PO6’) of the Bushfire code, which deals with access and evacuation routes. However, I do not consider this to be a relevant matter. PO6 of the Bushfire code applies to development that ‘involves provision of a new public and private road’. This could not apply to either the original or the changed development application. It is difficult in these circumstances to see how the Bushfire code calls for fresh consideration of the development application. As such it is not something that indicates the changed development application would result in substantially different development.
Other evidence
[24]	Finally, Mr Douglas also raised a concern about the traffic impacts on the subject site in the event the changes were adopted. He expressed the view that vehicles accessing the southern part of the site would face tight turns and the prospect of having to reverse around a corner to leave the area. If this were the case, it could represent a significant increase in the severity of traffic impacts on the subject site. It is an issue only briefly touched upon in the joint expert report of the parties’ traffic engineers. Some drawings were prepared by Mr Holland showing vehicle paths in the event the easement was used by the development. Mr Douglas in the joint report noted that there appeared to be no formal arrangement for the development to use Easement A and noted that, unless it could somehow be included in the development application, traffic issues needed to be considered on the basis vehicles would be contained on the subject site. As to whether Easement A could be included, Mr Douglas expressly deferred to legal and planning experts. It was a point of agreement that ‘[s]atisfactory on-site manoeuvring around the southern part of the site is achievable’ with access to Easement A.
Is the change a ‘minor change’?
[25]	As noted above, the outcome of this application turns upon whether the changed development application, because it applies to a new parcel of land, introduces new or increased planning and traffic impacts such that it would represent substantially different development. On the evidence before me, and summarised above, I agree with the Council that the appellant has not demonstrated it ‘does not result in substantially different development’.
[26]	While not every matter raised by the Council has significance, there are three matters that lead me to conclude the appellant has not discharged its onus.
[27]	The first is that the changes raise, for the first time, concerns about the application of the Reconfiguring a Lot Code to Easement A on Lot 3. As discussed above this is a matter only raised by the changed development application and could result in substantially different development. My conclusion that this could be the result means that the appellant has not shown the change does not result in substantially different development. Put simply, a proposal that now takes up a significant portion of an access handle dedicated to the benefit of adjoining lots is very different to a proposal that would see all development contained within the subject land. 
[28]	I note that the potentially affected lots all have (practically) the same owners and they have indicated no objection to the proposal. But the acquiescence of the present owners has no effect on my conclusion that what is now proposed is substantially different. I note as well the argument that part of Easement A is already being used (perhaps unlawfully) in the manner sought to be made regular by the changed development application. The argument proceeds that because the use already exists a change that permits it to occur lawfully is not significant. But that is not the test for this court, which is required to compare the original development application with the changed application to decide if it ‘does not result in substantially different development’. As has been observed in the Planning and Environment Court, ‘Central to this test is the result of the change to a development application, rather than the significance of the change itself.’ For the reasons set out above, a change that sees the proposed development take up part of Easement A results in substantially different development.
[29]	The second matter is the prospect of an increase in the severity of traffic impacts on the nearby lots because of the loss of part of Easement A. If the changes are implemented, a 70-metre section of the easement will lose more than half of its width. The easement may serve few lots, and traffic interactions may not be frequent, but the potential loss of part of the easement means traffic issues will occur more often and cause more inconvenience. This possibility is not significant on its own, but it lends weight to the Council’s contention that the proposed changes are not minor.
[30]	The third matter concerns vehicle manoeuvring on the subject site, of which much the same might be said. If the appellant takes up a strip of Easement A and directs traffic to the south-east corner of the site, there is the prospect that the impacts will be more severe than the original development proposal. This was referred to by Mr Douglas who was concerned about the swept paths of vehicle and the prospect of them having to reverse around corners to depart. It is difficult to judge how likely it is that these issues will arise because it is not a matter that has been fully considered by the traffic engineers. While there was agreement in the joint report that ‘satisfactory’ manoeuvring could be achieved with access to Easement A, there was no detailed consideration of the appellant’s new proposal. As with the potential for increased traffic impacts on Easement A, this is not a matter that on its own means the change is not minor. But it lends weight to the argument of the Council that in combination these matters mean the appellant has not discharged its onus.
[31]	It would be apparent from these reasons that the only proposed change that is of concern is that relating to Easement A. If the court were considering only the remaining changes, listed at (b) to (f) in paragraph [4] above, I would have concluded that the changes represented ‘minor change’ and ought to be permitted. The appellant did not submit that I should treat the proposed changes as severable or ask for an order allowing only some of the changes. In the circumstances, the appropriate order is that the appellant’s application is dismissed.