Canungra Commercial Pty Ltd v Scenic Rim Regional Council and ors [2013] QPEC 1

Norton Rose Australia for the Second Co-Respondent in 2465/10 and the Co-Respondent by Election in 813/11.

[1] The primary issue before me is whether a change proposed to a development application is a "minor change" within the meaning of that term in s.350 of the Sustainable Planning Act ("SPA"). That depends upon whether the change would result in "a substantially different development." That is to be considered after determining whether the change "introduces new impacts or increases the severity of known impacts" and the fact that it applies to a new parcel of land.

[2] Canungra Commercial Pty Ltd ("the appellant") seeks a declaration to the effect that a change proposed to its development application, the subject of its appeal, is only a minor change. The Scenic Rim Regional Council ("council") supports the application for the declaration.

[3] On 27 August 2009, the appellant's consultants lodged a development application for a material change of use for a shopping centre (business use) ("the application") on land described at Lot 2 on RP200758 and situated at 10-16 Finch Road, Canungra ("the subject land"). On 27 July 2010, the council approved the application subject to conditions. By appeal 2465 of 2010 the appellant appealed against certain of the conditions imposed by council.

[4] After discussions between the appellant and council, the appellant wishes to amend the original proposal by including a 3 metre wide footpath providing additional pedestrian access from the proposed development to Christie Street. This footpath would be on property described as Lot 8 on RP231328 ("lot 8"). Lot 8 was not part of the land the subject of the application.

[5] The expression "minor change" is defined in s.350 of the SPA relevantly as follows:-

_(1) A minor change in relation to an application, is any of the following changes to the application - _

(i) does not result in a substantially different development; and

(ii) does not require the application to be referred to any additional referral agencies; and

(iii) does not change the type of development approval sought; and

(iv) does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment."

[6] The proposed change does not engage any of the criteria set out in the SPA s350(1)(d)(ii) - (iv). It is in issue whether it engages SPA s350(1)(d)(i).

[7] The expression "a substantially different development" is not defined in the SPA.

[8] The explanatory guide to the Sustainable Planning Bill 2009 provides with respect to the term "substantially different development":-

"In general terms, it is considered that this term should be given its ordinary common sense meaning and will need to be considered on the facts of each case. It is difficult to establish black and white criteria, otherwise the test for whether an application can be changed, becomes arbitrary and inflexible. However, changes which may result in a development being substantially different include:

• changes which involve a new use (for example, an application for a material change of use for a cinema which is changed to include a residential component);
• changes which involve a significant increase in gross floor area;
• changes which involve a significant increase in the number of lots or storeys above ground level proposed."

[9] "Substantial" is defined relevantly in the Macquarie Dictionary as:-

"... 7. relating to the substance, matter, or material of the thing. 8. Of or relating to the essence of the thing; essential, material, or important ..."

[10] Section 759 of the SPA empowers the Minister to make guidelines about certain matters including:-

"(c) the matters to be considered in deciding whether or not a change to a development application or a development approval would result in a substantially different development."

[11] Pursuant to the section, the Minister has made Statutory Guideline 06/09.

[12] The Planning and Environment Court has determined that it is appropriate to have regard to Guideline 06/09 when determining whether a proposed change results in a substantially different development.

[13] Rackemann DCJ in Heritage Properties Pty Ltd [2010] QPEC 19; (2010) QPELR 510 at 511 (a minor change case) said:-

"In determining whether a development constitutes a substantially different form of development, it is appropriate to have regard to the guidelines made by the Chief Executive under section 760 (sic) of the SPA (Statutory Guideline 06/09), which provides relevantly as follows:

'Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would, therefore, not be a minor change or permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change will result in a substantially different development and is not intended to be exhaustive.

A change may result in a substantially different development if the proposed change:

• involves a new use with different or additional impacts;

• results in the application applying to a new parcel of land;

• dramatically changes the built form in terms of scale, bulk and appearance;

• changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment;

• removes a component that is integral to the operation of the development;

• significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;

• introduces new impacts or increases the severity of known impacts;

• removes an incentive or offset component that would have balanced the negative impact of the development;

• impacts on infrastructure provision, location or demand.'

It may be noted that the list provided in the guideline is a list of those changes which "may" result in a substantially different development. It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different.

It may also be noted that the list is not intended to be exhaustive. There may be other changes not listed in the guideline which, in a particular case, can be judged to be more than minor, in that it involves a substantially different development. It may also be noted that the focus of the list in the guideline is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts."

"It has often been said that the question of whether a development constitutes a minor change ought to be considered broadly and fairly. In my view, that same approach is still appropriate under the definition in the SPA."

[15] As described in paragraph 6 of the Affidavit of Ms Vigar:-

"6. The Amended Plans differ from the Original Plans in the following respects (the Changes):

(a) The Amended Plans include a 3 metre wide footpath, providing access to Christie Street. This footpath is on property described as Lot 8 on Registered Plan 231328.

(b) The Amended Plan has removed seven car parking spaces including four adjacent to the new pedestrian crossing for the aforementioned footpath to Christie Street, one adjacent to the loading bay egress, and two either side of the Bio-retention area."

[16] Currently Lot 8 carries overland flow from the upstream catchment on the southern side of Christie Street which flow passes through culverts under Christie Street. Three x 1350mm underground pipes are proposed to be constructed to carry water from the Christie Street culverts through lot 8 to the pipes proposed under the shopping centre on the subject land and then to discharge to the north into Canungra Creek. The three proposed pipes under lot 8 will be accompanied by infilling of an open grassed drainage channel on lot 8 and the construction of the footpath with landscaping.

[17] Some positive impacts would be result from the proposed change:-

1. The amended plan improves the connectivity between the proposed shopping centre and Christie Street and therefore improves access by the public.

2. The amended proposal could encourage people visiting the proposed shopping centre to also visit the businesses on Christie Street which would improve the integration of the proposed centre with this main street.

[18] The appellant accepts that it bears the onus of establishing that the proposed change is only a "minor change".[1]The submitter co-respondents by election ("the submitters") submitted that "the onus of proof lies on Canungra Commercial to fully particularise and identify the impacts that would result from...the proposed changes to the development application". I doubt that the appellant has the onus to particularise the impacts in a contested hearing. It is not necessary to be diverted by that submission as the proceedings have been contested and fought on particular issues identified by the submitters in their submissions delivered before the hearing and supplemented after evidence was complete.

(a) the inclusion of a new parcel of land, Lot 8, in the changed development application, especially where:

• (i) the part of Lot 8 to be used by the proposed development is subject to a drainage easement ("Easement A") and operates as a main drainage line in this locality; and
• (ii) use of Lot 8 for the proposed development would preclude the use of Lot 8 in accordance with an existing development approval for that lot;

(b) the proposal to create a new pedestrian accessway, direct from Christie Street to the proposed development, especially where there are potential pedestrian safety issues raised by:

• (i) the proposal to have pedestrians walking a long path (some 50m or so) effectively out of sight (i.e. beyond the casual surveilence) of the public (in Christie Street, in Finch Road or in the proposed development; and
• (ii) the prospect that stormwater may cross Christie Stree and proceed downhill over the pedestrian accesway;

(c) the proposal to join stormwater pipes that currently discharge in an unconstrained fashion from culverts under Christie Street into the open channel in Easement A, where that proposal will (as a result of tailwater considerations and/or friction impacts) alter the hydraulic regime upstream of Christie Street (i.e. less stormwater will be able to pass under Christie Street and more stormwater will either not be able to enter the piped stormwater network, or will surcharge from the piped stormwater network, and will flow as overland water in public or private property).

[20] The "issues" section of the submitters' written outline contains nothing about traffic grounds. However, within the submissions, their counsel noted that the change will provide a new access point to a different road and that there would be changes to and a reduction in the number of car parks for the proposed development.

[21] From a traffic and engineering perspective, Mr Healy deposed, and I accept, the proposed change, including the consequential loss of some seven car parking spaces does not:-

(a) Introduce new uses with different or additional impacts.

(b) Affect the ability of the development to operate as originally intended.

(c) Make a significant change to the impact on traffic flow and the transport networks as the traffic generation is the same.

(d) Create new impacts or increases in the severity of known impacts.

(e) Impact on infrastructure provision, location or demand.

or result in any new or enhanced impacts.[2]

[22] The "new access point to a different road" to which the submitters' counsel draw attention is pedestrian access. I do not accept that the new access point and loss of car parks create an adverse impact of any significance.

[23] The "issues" section of the submitters' written outline contains nothing about loss of sensitive vegetation. However, cross-examination on the issue was lengthy and within the submissions, the submitters' counsel noted that the proposed development would involve filling and/or works in a sensitive area with regard to vegetation.

[24] Mr Adams, the submitters' town planner, told the Court that in reality there was not a great deal of vegetation actually in the drainage easement. (See Exhibits 7A and 7B)[3]

[25] I accept the evidence of Ms Vigar that the existing vegetation is not significant.[4]

[26] This is reinforced by Exhibit 5, the current approval existing over Lot 8. It contemplates that the area of the easement will become car park, driveway, loading area and building area. With the exception of a garden bed on the Christie Street frontage, there is no prospect, pursuant to that approval, of vegetation being retained on the easement.

[27] Mr Covino gave evidence that Lots 6, 7 and 8 are all now owned by Covino family members or entities controlled by Covino family members. They have never had any intention of retraining the vegetation.[5]

[28] I find that the proposed change will not create an adverse impact of any significance with respect to vegetation.

[29] Pedestrian security on the proposed footpath is an issue. The path would be about 50 meters long. The submitters' counsel submitted the proposal to have pedestrians walking a long path (some 50m or so) would put the pedestrians effectively out of sight (i.e. beyond the casual surveillance) of the public (in Christie Street, in Finch Road or in the proposed development).

[30] Ms Vigar[6], an experienced town planner, gave evidence that she has no concern with respect to issues of security. She said that the matter of security within pathways and areas such as are proposed are matters that can be dealt with by appropriate design and by conditions that manage the operation of the use.[7]

"Over time that area will be developed, will be part of the Canungra Town Centre. It won't be a low activity area for very long I suspect and so there will be areas of activity right along that path in the - in the fullness of time. But the second point that I would make is that - that it is quite an appropriate - that the benefits of having a connection between the two, in my view as a planner, far outweigh any perceived concerns which I don't believe to be real and which can be managed."__[8]

"I don't believe there is an actual issue. As to a perception, it's possible there could be perceptions."

[33] Mr Adams agreed with Ms Vigar's view that increased pedestrian connectivity was a valid town planning consideration.[9] He went on to say that if there were in reality any potential safety issues, the development could be conditioned to manage those issues.[10]

[34] Mr Adams agreed that it would be a good town planning outcome to have an active street frontage along the pathway where buildings addressed the street and people could pass along the pedestrian pathway between Christie Street and the supermarket.[11]

[35] There is insufficient security impact from pedestrian use of the proposed footpath to resulting in a substantially different development.

[36] Pedestrian safety from stormwater on the proposed footpath is an issue. Mr Suffolk is of the view that the proposal amounts to a significant improvement in that all of the water which currently flows through the culverts under Christie Street and overland up Lot 8 will now be captured by the 3 x 1350 mm underground pipes running through Lot 8 to meet up with the 3 x 1350 mm pipes proposed under the shopping centre car park and discharging to the north and flowing into Canungra Creek.

[37] Factual issues arose between the hydrology experts, Mr Suffolk and Mr Boyd. Mr Suffolk was very uncomfortable giving evidence. I am not persuaded that his discomfort was a sign that his professional opinions were unreliable.

[38] Mr Suffolk's firm, Opus International, uses the sophisticated two dimensional computer model, Tuflow, which is an accredited software programme recognised by the State Government. I accept that[12]:-

"Tuflow is highly respected worldwide and is used by many of the leading hydraulic engineers in Australia including: SKM, Cardno, GHD, WBM and SMEC. It is accepted by regulatory authorities throughout Australia and by a number of international agencies including the UK Environment Agency and the USA Federal Emergency Management Agency (FEMA)."

[39] Mr Boyd was a more confident witness. Confidence in the witness box is appealing but not a reliable measure of the correctness of opinions expressed. Mr Boyd accepted Tuflow's appropriateness for modelling flows in this situation. Mr Boyd satisfied me that he had a genuine concern about the inputs Mr Suffolk used when using computer modelling as an aid for predicting water flows. However, Mr Boyd has never used Tuflow.

[40] Mr Suffolk's inputs for the computer modelling were chosen on the basis of his professional opinion.

[41] Mr Boyd did not prove the value of his concerns by using computer modelling with his preferred inputs. He did no modelling to establish that the results of Mr Suffolk's modelling would have materially changed with Mr Boyd's preferred inputs or that the results Mr Suffolk obtained were otherwise incorrect predictions. Mr Boyd did not regard that as his task. Rather, Mr Boyd's approach was to express professional opinions on whether more or different inputs would have been better choices when Mr Suffolk used modelling software to predict hydrological outcomes and that included expressing an opinion that Mr Suffolk should have used Vekta .2 meter survey data in some instances in preference to LiDAR .5 meter survey data for the TUFLOW computer analyses and modelling.

[42] It is not necessarily the case that materially different flow outcomes will be predicted with different inputs. For example, when Mr Suffolk created a computer model on the hypothesis that a vertical retaining wall barrier forced all of the water which flowed over Franklin Street down a gully to the location of the Christie Street culverts, the new model continued to predict no overland flow into lot 8.

[43] Different scenarios were modelled by Mr Suffolk using Tuflow. They were:-

(i) Existing conditions (section 6.3.1, pages 23G, 23H and 23I of Exhibit FG1);

(ii) The post-development condition (section 6.3.2, pages 23P, 23Q and 23R of Exhibit FG1);

(iii) A "no pipe" scenario intended to reflect a scenario of a completely blocked storm pipe network, (section 6.3, pages 23M, 23N and 23O of Exhibit FG1); and

(iv) A hypothetical scenario where a vertical retaining wall barrier is built to force all of the water which flowed over Franklin Street down the gully to the location of the Christie Street culverts. (Exhibit 14 and 14B)

[44] I am persuaded on the balance of probabilities that Mr Suffolk's inputs, chosen on the basis of his professional opinion, were adequate, that the predictions on the bases of his computer modelling were reliable and that his opinion is correct that in a Q100 event in Canungra Creek there would be no relevant flow over Christie Street onto lot 8.

[45] I reject the findings urged by the submitters that the change will result in excessive flow depths and velocities on the footpath proposed for lot 8.

[46] I am satisfied on the basis of Mr Suffolk's evidence that there is insufficient risk to pedestrian safety from the risk of overland flow velocities on the proposed footpath to result in a substantially different development.

[47] Tailwater impact is an issue. The pipes proposed are of a size that when the council wishes to upgrade the drainage in the upstream catchment on the southern side of Christie Street and the culverts under Christie Street, the totality of the Q100 flow, some of which would currently flow overland westward along Christie Street, will be captured and taken underground to the north of the shopping centre and thence into Canungra Creek. This would be a significant improvement to the hydraulic regime in the vicinity. But it may have a tailwater impact.

[48] Mr Boyd suggested that there may be impacts as a consequence of tailwater back up. He did not model the impacts. He did not project particular tailwater impacts. He opined that tailwater should be considered and that the modelling done by Mr Suffolk did not address a sufficiently large area. The submissions for the submitters, consistently with the general nature of Mr Boyd's evidence, were expressed generally and did not suggest a particular area (other than lot 8) which would be adversely impacted by tailwater or the degree of risk of the adverse impact occurring. The submission was that the:

proposal will (as a result of tailwater considerations and/or friction impacts) alter the hydraulic regime upstream of Christie Street (i.e. less stormwater will be able to pass under Christie Street and more stormwater will either not be able to enter the piped stormwater network, or will surcharge from the piped stormwater network, and will flow as overland water in public or private property).

[49] Mr Suffolk's judgment was proved to be prudent and correct when he nominated a 90.2m AHD obvert for the outlet of the pipes running under the shopping centre in the original application design. When the Cardno July 2012 report was received, it indicated a Q100 flow in Canungra Creek in the vicinity of the outlets downstream of the subject land of between 85m and 90m AHD.

1. The outlet pipes whose obverts are to be at 90.2m AHD were submerged i.e. the Q100 flood would have to be at the absolute highest level of 85m to 90m AHD projected; and

2. There occurred coincidentally with a Q100 flood in Canungra Creek rising to 90m at the pipes' obverts, a one in one hundred year flood in the upstream catchment.

[51] The likelihood of this coincidence is statistically insignificant. Further, in identifying the risk of tailwater impacts, Mr Boyd ignored the fact that there are a number of grates in the car park which would have the capacity to relieve backwater pressure should the statistically unlikely occurrence occur. Further, there are grates in the proposed pipes under the easement which would also relieve the pressure.

[52] The risk of consequences from a blocked pipe was raised by the submitters. Any such risk is lessened by the fact that 3 pipes are contemplated.

[53] I accept Mr Suffolk's opinion to the effect that the proposed change will not create any material adverse impact from changed water flows.

[54] The fact that the change would result in the application applying to a new parcel of land, lot 8, engages a criterion from Statutory Guideline 06/09.

[55] The submitters argued that a consequence is that the change, prima facie, is not a minor change. The legislation does not say so. The guideline does not say so. The guideline provides that such a change "may result in a substantially different development" but in so providing, the guideline commences with the words: "Although it will depend on the individual circumstances of the development". This is consistent with what Rackemann DCJ observed in Heritage Properties[13]and Robin QC DCJ observed in Auspacific Engineers Pty Ltd v Scenic Rim Regional Council & Ors.[14]I reject the submitters' submission. I must however, consider the individual circumstances of the development when considering whether the application's application to a new parcel of land results in a substantially different development.

[56] The involvement of lot 8, the new parcel of land which would be involved in the amended application, is to facilitate a 3 meter wide footpath to be created on fill to be laid over the drainage easement under which 3 stormwater pipes will be laid.

[57] The submitters argue that the use of the land now proposed, that is with a footpath over underground pipes, in lieu of an unfilled drainage easement and carpark associated with an approval for commercial development, would frustrate a development proposal that has been previously approved over that land. This submission was supplemented orally with a submission that the court is not concerned with the private economic interests of the current owners. The owners, having obtained ownership of adjoining lots 6, 7 and 8 support this application.

[58] The council urged upon me a generous interpretation of the limits within an application may be changed, referring to authorities concerned with the IPA[15] and the SPA[16] regimes. The applicant adopted the submissions. It is not necessary for me to consider them in this case. Generosity is not required.

[59] Lot 8 is affected. It seems to me the consequences for lot 8 can be appropriately described as insubstantial. However, whether the consequences for lot 8 are properly described as insubstantial or better described as significant is not the issue and the difference does not affect the outcome. The issue is whether the proposed change to the application results in a substantially different development and not whether there will be a consequence which has significance.[17]

[60] The result of the change is to enhance the pedestrian connectivity of the proposed shopping centre to Christie Street, the main street of Canungra, with a footpath over the drainage easement on lot 8, and to improve the stormwater regime in the vicinity by filling that easement on lot 8 and laying adequate stormwater pipes beneath the filled easement. It does not create adverse traffic, vegetation, pedestrian safety or stormwater impacts. The appellant still proposes to develop a shopping centre of the same scale, gross floor area, retail offering and style and does not propose to add new uses or new shopping facilities or offerings.

[61] Looked at broadly and fairly, the changes will not result in a "substantially different development".

[62] It is appropriate to make the declaration sought. The parties have been given leave to be absent when these reasons are published and so I may have no opportunity to hear submissions on the form of order or wording of the declaration. In this circumstance, the parties have liberty to apply. There are issues about costs thrown away. I am content to receive submissions on those issues in writing when the parties have considered these reasons.

[2] Affidavit of Mr Healey (Document 26), paras.10 and 11.

[4] Transcript, page 1-23, lines 30-40. Transcript, page 1-24, 1-25.

[6] Transcript page 1-30, 1-31 and 1-32.

[10] Transcript page 1-95, line 40 and 1-96 line 20.

[11] Transcript page 1-95, lines 15 to 40.

[14] [2010] QPEC 117 at [23]

[15] Heilbronn & Partners v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386 [21]-[22]

[16] Comiskey Group v Moreton Bay Regional Council [2012] QPELR 649 at 660.

[17] See eg Dempsey v Brisbane City Council [2012] QPELR 396 at [20]