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[2009] QPEC 93
procedural. The Court ordered that the changes to the application on which the appealed decision was made were only minor for s 4.1.52(2)(b) of the Integrated Planning Act 1997. It directed that the appeal be...
Karnew wanted to alter its supermarket proposal while appealing Council's refusal. The changes moved the supermarket to a different part of the same retail centre and added 65 m² to the floor area used for car-parking calculations. Two co-respondents argued that the move and layout changes were substantial and could increase trading intensity. The Court found that the changes did not turn the proposal into a materially different development and were unlikely to raise new planning or amenity issues. It therefore treated them as minor under the applicable Act, allowed the appeal to proceed on the amended plans, and declared that public-notification requirements had been met.
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2,107 words · generated 02/10/2026
Karnew Properties Pty Ltd applied in January 2007 for approval of a material change of use for a shop, described as a supermarket, at 1 Santa Maria Court, Burleigh Waters. The site was already developed as the Burleigh Homespace Centre, containing large and small retail showrooms, shops and a take-away food outlet ([1]-[2]). Council officers recommended approval subject to conditions, but the Council resolved to refuse the application. Its decision was communicated in a Decision Notice dated 5 October 2007 ([2]).
1 cited instrument linked from this judgment.
Karnew appealed on 30 October 2007 ([3]). While the appeal was on foot, Karnew proposed amending its application and sought an order under s 4.1.52(2)(b) of the Integrated Planning Act 1997 (IPA). That provision, reproduced in footnote 2, said that the Court must not consider a change to the application on which the appealed decision was made unless the change was only a minor change.
Only two of eight proposed alterations remained in dispute. First, the supermarket's location changed: the original plans placed it in tenancies 1 to 6 and part of tenancies 7 and 8; the amended plans placed it in tenancies 7 to 9 and part of tenancy 10. The new location was more central relative to the existing at-grade carparking. Second, the gross floor area used for car-parking calculations increased by 65 m² ([5]). The judgment says the overall gross floor area remained 2,500 m², drawing on the evidence of Karnew's planner ([12]).
Rayjon Properties Pty Ltd and Jen Retail Properties Limited opposed the application. They argued that the relocation put the supermarket in an entirely new area, changed the layout and shape of the premises, and removed five internal tenancies from the plan. They also argued that the 65 m² increase could not be minor by reference to a definition in the Council's Planning Scheme ([6]). Their planning consultant, Mr Ransom, considered that the revised layout could be more efficient, with more shelf space and potentially additional checkouts, and could therefore operate more intensively than the floor-area increase alone suggested ([7]-[8]). He also argued that moving the supermarket could hasten a shift away from the centre's homemaker focus towards more conventional retailing ([9]).
Newton DCJ found the changes minor for the statutory purpose. The appeal was to be heard and determined on the amended plans identified at [15]. The Court also declared that the statutory public-notification requirements had been complied with ([15]).
The Court focused on the statutory question: were these changes only minor changes to the application on which Council had made its decision? It did not treat the possible commercial or planning consequences raised by the objectors as automatically answering that question.
A key part of the Court's reasoning was that the evidence did not establish that the supermarket would operate materially more intensively. Mr Ransom accepted that, without seeing the new internal floor-space plan, he could not comment on the exact extent of the potential impacts ([7]). The Court also considered that his assumptions about separate operators for the proposed bakery, deli-meat, gour-deli, fish and poultry outlets were not established. The amended proposal might include a similar number of outlets to the original one ([11]). On the evidence available, the Court could not reach a concluded view that the relocation would increase efficiency or intensity ([11]).
The Court also separated the question of whether the centre might lose some of its homemaker focus from the issue it had to decide on this application. In the Court's view, that concern was already a live issue under the original application, and the new proposal did not alter that situation ([11]). The issue was therefore not a new consequence of the proposed changes for the purpose of deciding whether they were minor.
The evidence for Karnew supported the view that the application remained substantially the same. Its planner considered that the changes were not materially different, noting that the overall gross floor area had not changed from the publicly advertised proposal and that the car-parking-calculation floor area had increased by only 65 m² ([12]). The Court accepted that the changes did not alter the fundamental nature of the development or the nature, size and purpose of the intended use ([13]).
The Court also considered whether the changes might require further planning processes. It found they were unlikely to raise new town-planning or amenity issues, or attract an adverse submission that the publicly advertised proposal would not already have provoked. They would not require referral to an additional concurrence agency if the application were made again with those changes ([13]). These were relevant features of the Court's overall conclusion that the proposal had not become materially different.
Finally, the Council's Planning Scheme definition did not govern the statutory interpretation. The Court accepted Karnew's submission that the Scheme was subordinate legislation and that its definition concerned whether a change in the scale and intensity of an existing use triggered a fresh application. The issue before the Court was instead whether changes to the application in the appeal were minor under the IPA ([10]).
The judgment describes the applicable statutory position through s 4.1.52 of the IPA. An appeal was to be heard anew, but where the appellant was the development applicant, s 4.1.52(2)(b) restricted the Court from considering a change to the application underlying the appealed decision unless that change was only a minor change. The Court had to decide whether the proposed amendments fell within that statutory threshold before allowing the appeal to proceed on the amended application.
The judgment does not set out a comprehensive definition of “minor change”. Instead, it explains the method used in this dispute. The changes were considered against the original proposal, including their degree or scale and whether they made the proposal materially different ([14]). The Court accepted that it may be useful in some cases to distinguish salient features from incidental ones, but warned that this must not become a replacement test ([14]).
The judgment’s “before” position was Council’s refusal of Karnew’s original application and the statutory restriction on changes during the appeal. The “after” position was that the appeal could be heard on the amended plans because the particular changes were held to be minor, with a declaration that public-notification requirements had been met ([15]). This is a description of the result under the IPA provisions reproduced in the judgment. The judgment does not address later legislative amendments or state the law after the decision.
At [10], Newton DCJ accepted that the Planning Scheme definition relied on by the objectors did not control the meaning of “minor change” in the IPA. In plain English, a definition designed for deciding whether an existing use has changed enough to need a new application could not simply be imported into a separate statutory test about amendments during an appeal.
At [11], the Court said it was not possible to reach a concluded view about whether the relocation would increase the supermarket's efficiency or intensity, given the lack of detail in the amended plans and the limits of Mr Ransom's evidence. In plain English, the Court did not treat speculative possibilities about how the supermarket might be laid out or operated as proof of a material change.
At [13], the Court found that the amendments did not change the proposal's “fundamental nature” or the “nature, size and purpose” of the intended use. It also found that the amendments were unlikely to raise new planning or amenity issues or require referral to an additional concurrence agency. In plain English, the revised plans still proposed a supermarket within the same centre, and the evidence did not show that the alterations created a new kind of development or new planning concerns.
At [14], the Court said the amendments were “no more than minor” in degree or scale and did not result in a materially different proposal. It also said the supermarket's relocation did not change the type of supermarket contemplated and that the available material did not establish a material change in intensity. In plain English, moving the supermarket within the centre and adding 65 m² for car-parking calculations did not, on the evidence in this case, transform the proposal.
The Court’s caution at [14] is important: a court may sometimes examine which elements of a proposal are salient or incidental, but it must not replace the statutory test with that distinction. In plain English, analytical tools may help organise the comparison, but the statutory language remains controlling.
The case is relevant to disputes in which an applicant seeks to change a development application while appealing a decision made on the original application, and the applicable legislation restricts the appeal court to considering only minor changes. Its concrete setting was an existing retail centre, a proposed supermarket, an internal relocation between tenancies, and a modest increase in floor area used for car-parking calculations ([1], [5]).
The reasoning is especially connected to situations where objectors say that a change in location, layout, shape, internal tenancy arrangement or possible operational efficiency makes the proposal materially different. The judgment shows that such concerns are assessed against the evidence and the original proposal, rather than accepted as decisive simply because a revised layout could potentially support different commercial operations ([7]-[14]).
The case also highlights the potential relevance of whether a change creates new planning or amenity issues, may attract submissions not prompted by the advertised proposal, or requires additional concurrence-agency referral ([13]). These were features the Court considered in this case. The judgment does not establish that any one of them is a freestanding statutory test, nor does it say that the same factors will carry the same weight in every matter.
The decision is fact-specific. It does not establish that every internal relocation or 65 m² increase is minor. The Court relied on the continuing identity and purpose of this proposal, the limits of the evidence about operational intensity, and the absence of identified new planning consequences.
The judgment itself identifies and refers to one case: Lascorp Development Group v Burnett Shire Council & anor (2007) QPEC 024. It refers to that decision in connection with the possible distinction between salient and incidental features of an original proposal ([14], footnote 12). Newton DCJ did not adopt a different test from Lascorp in the text provided; the express qualification was that any such distinction must not replace the test in the legislation.
The judgment supplied here does not describe any later decisions, cite subsequent treatment, or say whether later courts followed, distinguished, or reconsidered Karnew. No conclusion about its subsequent precedential history can therefore be drawn from this source alone.
For professional use, the safe source-grounded description is that Karnew applied s 4.1.52(2)(b) to the proposed amendments before it and explained that the statutory question should not be displaced by either a planning-scheme definition directed to a different issue or an analytical distinction between salient and incidental features. Any account of later treatment would require additional legal sources not included in the judgment provided here.
The judgment does not supply a general definition or exhaustive criteria for a “minor change”. It says that the statutory test controls, and gives a contextual application to these facts. It leaves open how other kinds of changes, such as substantial changes in scale, purpose, operating hours, site area or external impacts, would be assessed under the same provision.
The Court could not determine from the available material whether the revised internal layout would materially affect supermarket intensity ([11], [14]). The judgment therefore does not resolve what evidence would be sufficient to prove such an effect, or how likely operational changes should be weighed where detailed plans are available.
The judgment also does not provide a separate analysis of the legal test for public notification. It declares compliance after finding the changes minor and considering that they were unlikely to prompt a new adverse submission ([13], [15]). It does not set out how public-notification requirements would apply to a more extensive amendment.
Finally, the case concerns the IPA as reproduced in the 2009 judgment. It does not establish what legislation applies to a later development application or appeal, and it does not address subsequent amendments or later case law. Those matters cannot be answered from this judgment alone.
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Hickey Lawyers for the first and second co-respondents by election
Clayton Utz for the third co-respondent by election
[1] The property the subject of this application is situated at 1 Santa Maria Court Burleigh Waters[1] and is presently developed with an existing retail centre known as the "Burleigh Homespace" Centre. It comprises a mixture of large and small retail showrooms together with shops and a take-away food outlet.
[2] The appellant ("Karnew") made a development application to the respondent Council in January 2007 seeking a material change of use for a shop (supermarket). The development application was assessed by Council officers who recommended the approval of the application subject to reasonable and relevant conditions. Notwithstanding that recommendation, the respondent Council resolved to refuse the development application. That decision was communicated by way of a Decision Notice dated 5 October 2007.
[3] On 30 October 2007 Karnew filed a notice of appeal in this Court against the respondent's refusal.
[4] Karnew now proposes to amend its development application and accordingly requires an order of this Court under section 4.1.52(2)(b) of the Integrated Planning Act 1997 ("IPA")[2] that the proposed changes are minor changes and that the appeal be heard and determined on the basis of the amended application. The only parties to oppose the application are the first and second co-respondents by election, Rayjon Properties Pty Ltd ("Rayjon") and Jen Retail Properties Limited ("Jen").
[5] Karnew gave notice to Rayjon and Jen by letter dated 23 February 2009[3] that it proposed to amend the development application. Although the proposed changes to the plans of development include eight alterations, only two remain in issue for the purposes of this application. They are
(i) the proposed shop previously was intended to occupy tenancies 1 to 6 and part of tenancies 7 and 8, where as the amended application has the proposed shop occupying tenancies 7 to 9 and part of tenancy 10. This change would locate the supermarket in a more central location relative to existing at-grade carparking on the land; and
(ii) the gross floor area of the proposed shop, calculated for carparking purposes, has increased by 65m².
[6] Counsel for Rayjon and Jen submits that what is being sought by the amendments is the relocation of the shop (supermarket) to an entirely new location, which did not form part of the original application. The area of land the subject of the application was a salient feature of the application and the removal of the use to an entirely different area is not a small or inessential change, and cannot be said to be a change which is minor. Furthermore, it is contended that the proposed change results in significant alterations to the layout resulting in a more conventional rectangular shape of the shop and the apparent deletion of five internal tenancies from the proposed layout. These are salient features of the proposal which, it is submitted cannot be described as small or inessential changes. Finally, it is submitted that the proposed increase in the gross floor area of 65m² cannot be considered to be a minor change because such increase would not accord with the definition of the term "minor change in the scale and intensity of an existing use" within the respondent Council's Planning Scheme, version 1.2.[4]
[7] In support of these submissions reliance is placed upon an affidavit of Mr David Ransom, Town Planning Consultant, which was filed on 5 August 2009. Mr Ransom notes that the original proposal was for a proposed shop (supermarket) of an unusual shape and size said to be unlike any other supermarket layout on the Gold Coast. The original proposal included an angled western and southern façade, reflecting the existing perimeter of the Burleigh Homespace development. The vast majority of supermarket tenancies are rectangular in shape, as this shape maximises internal design efficiencies associated with aisle widths, aisle spacing, checkout locations and back of house facilities. Mr Ransom considers the internal layout of the development under the original proposal as quite inefficient when compared to a conventional rectangular layout. The amended proposal is likely to result in more shelf space and a more efficient checkout arrangement, possibly including additional checkouts. Mr Ransom postulates that, while the amended proposal has a gross floor area for carparking purposes 65m² greater than the original proposal, it is likely that the amended proposal will operate in a significantly more intensive manner than this figure suggests. However, he concedes that without seeing a plan of the new internal floor space he is unable to comment on the exact extent of such impacts.[5]
[8] Mr Ransom further notes that the original proposal included five internal tenancies along the northern internal wall of the premises. These are identified on the plans as being for a "bakery", "deli-meat", "gour-deli", "fish" and "Lenards". He considers it to be an unconventional practice to have internal subtenancies of this type within a supermarket, as typically most of these functions occur from a single delicatessen counter operated by the supermarket proprietor. The original proposal is said to be reflective of an internal sub-letting arrangement where separate business owners sell their produce from within the nominated tenancies by renting space from the primary tenant. Such an arrangement is seen by Mr Ransom as being an inefficient use of internal floorspace compared to an arrangement where common servicing and back of house facilities would be provided by a central retailer.[6] However, as the amended proposal does not show any internal layout for the proposed supermarket it is not possible for Mr Ransom to comment on the potential changes in intensity of the amended development although it would be expected that greater length of shelf space, display space and checkout space would be provided in the amended proposal, even if the gross floor area of the development was unchanged.[7]
[9] With respect to the proposed relocation of the subject premises Mr Ransom considers that the revised plans now place a third anchor tenant within the development in the center of the development in a manner which will exacerbate the decline of the "Homemakers" functions on the site, and hasten the conversion of the "Homemakers" tenancies into more conventional retail activities thus diminishing the pulling power of the development as a specialist centre catering to homemakers. This will create pressure for more mainstream retailing activities which will cause the development to have a greater intensity than was envisaged under the original application.[8]
[10] Senior Counsel for Karnew submits that it is impermissible to use the respondent's Planning Scheme, which is subordinate legislation, to construe the meaning of section 4.1.52(2)(b) of IPA which is the parent Act. Furthermore the definition in the Planning Scheme to which Mr Ransom points is a "use" definition which assists in determining whether proposed changes to the scale and intensity of an existing use trigger the need for a fresh development application. The definition has no relevance to the circumstances applying here, that is whether proposed changes to a development application are minor for the purpose of section 4.1.52(2)(b) of IPA. These submissions, in my view, should be accepted.
[11] As to whether the change in the location of the proposed shop (supermarket) will increase the efficiency and intensity of the tenancy in comparison to what had been originally proposed, it is not at this stage possible, given the absence of detail in the amended plans, to express a concluded view. Mr Ransom acknowledges this to be so.[9] The amended proposal is likely to include a similar number of outlets for poultry, deli-meats, fish, gour-deli and bakery as did the original proposal. It was no more than an assumption on the part of Mr Ransom that these outlets were to be operated by retailers other than the operator of the supermarket itself. Furthermore, the issue as to whether the relocation of the proposed shop within the centre will exacerbate the decline of the homemaking focus of the site, is not one that falls for determination on the hearing of this application. That issue became a live issue with the original application. The new proposal does not alter that situation.
[12] Support for the contentions of the appellant is found in the affidavit of Mr Denis Brown, Town Planner filed on 11 June 2009. It is the view of Mr Brown that the proposed changes to be made to the development application are not materially different from the development application which was refused by the respondent. This is particularly so according to Mr Brown, considering that the overall gross floor area of the amended proposal has not changed from that as publicly advertised and remains at 2500m² and that the gross floor area for the purpose of calculating carparking requirements has increased by only 65m².[10] Mr Brown is also of the view that the relocation of the proposed supermarket, in part, to adjoining tenancies does not result in a materially different proposal particularly having regard to the fact that the proposed use is one of many uses within the Burleigh Homespace centre.[11]
[13] Notwithstanding the views expressed by Mr Ransom I accept that the proposed changes to the development application do not alter the fundamental nature of the development proposal, nor do they affect the nature, size and purpose of the intended use. Furthermore, they are unlikely to raise any new town planning or amenities issues or be likely to attract an adverse submission that had not been provoked by the proposal in the form as publicly advertised. The proposed changes would not require referral to an additional concurrence agency if the development application was remade including the changes under consideration.
[14] In determining whether proposed changes are minor within the meaning of s 4.1.52(2)(b) of IPA it may be useful in some cases to distinguish between the salient and incidental features of the original proposal[12] although it is important not to substitute a different test from that contained in the legislation. Such an exercise in the present case is unnecessary. The proposed changes, in the context of this hearing, may be fairly said to be no more than minor in terms of the degree or scale of the original proposal and do not result in a materially different proposal from that originally put forward. The change in location of the supermarket cannot be said, in my view, to result in a change to the type of supermarket contemplated and, on the material presently available it is simply not possible to conclude that the changes will materially affect the intensity of the supermarket's operation.
[15] I therefore conclude that the changes to the application on which the decision being appealed was made are only minor for the purposes of section 4.1.52(2)(b) of IPA. The appeal is to be heard and determined on the basis of the amended plans forming part of the affidavit of Mr Clifford Wirz filed on 3 February 2009 exhibit CNW-1, pp342-345 inclusive. I declare that there has been compliance with the requirements of Chapter 3, Part 4, Division 2 of IPA with respect to public notification of the development application.
[1] The land is more particularly described as Lot 3 on SP163203.
[2] 4.1.52 Appeal by way of hearing anew
(2) However, if the appellant is the applicant or a submitter for a
development application, or is a person who has applied for
(a) must decide the appeal based on the laws and policies
applying when the application was made, but may give
weight to any new laws and policies the court considers
(b) must not consider a change to the application on which
the decision being appealed was made unless the change is only a minor change.
[3] Affidavit of Denis Eric Brown filed 11 June 2009 paragraph 16.
[4] Affidavit of David George Ransom filed 5 August 2009 paragraphs 8-13.
[10] Affidavit of Denis Eric Brown filed 11 June 2009 paragraph 19.
[12] See Lascorp Development Group v Burnett Shire Council & anor (2007) QPEC 024 per McLauchlan QC DCJ
Karnew Properties Pty Ltd
Gold Coast City Council & Ors [2009] QPEC 93
The Court ordered that the changes to the application on which the appealed decision was made were only minor for s 4.1.52(2)(b) of the Integrated Planning Act 1997. It directed that the appeal be heard and determined on the amended plans identified in the judgment and declared compliance with Chapter 3, Part 4, Division 2 of the Act concerning public notification.