Development refused due to inconsistency with Centres Strategy

The Planning and Environment Court in Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5, refused a change application (other) lodged in accordance with sections 78 and 82 of the Planning Act 2016 (Planning Act) for an existing approval from showrooms and a café to offices on a site located in Southport (Change Application).

Specifically, the existing approval was for a single storey building divided into three showroom tenancies and a café tenancy (Existing Approval).  The appellant sought to change the Existing Approval to incorporate a revised arrangement to cater for offices for a single tenant to occupy the entire building.

The Site and Surrounds

The site is located on the corner of Ferry Road and Cotlew Street, Southport.  Relevantly, the site is located within the:

• mixed use zone – fringe business precinct of the planning scheme; and
• not located within a designated centre pursuant to the planning scheme;

Assessment Framework

As the application is a change application, other than a minor change application, the assessment must be carried out ‘to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval’ (section 82(4) of the Planning Act).

The Change Application was impact assessable and section 45(5)(b) of the Planning Act applied in terms of assessment of the application which ‘may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise’ (our emphasis added).

Any ‘other relevant matter’, contemplates that these matters must be of a public interest as opposed to a personal interest, as observed by His Honour Judge Everson at paragraph [11] of the decision.

Following the consideration of the previous approach under the repealed planning legislation in terms of assessing what is an ‘other relevant matter’, His Honour held at paragraph [13] of the decision that:

Accordingly, pursuant to the regime in the PA there is much more scope for a consideration of the site specific benefits of a proposed development in assessing a development application. This in turn leads to greater scope for the use of expert evidence in the assessment process. It allows for evidence about the benefits of a proposed development as part of the assessment undertaken by the court in the exercise of its discretion in hearing and determining the appeal. While a relevant matter is only capable of being considered in a permissive, not mandatory way, it may be assessed in a way unconstrained by the previous requirement that consideration of such matters not occur until the decision making stage and then only in the context of a conflict with relevant planning controls. (Our emphasis added).

Issues for consideration in the appeal

Essentially the appeal came down to a consideration of the:

• extent of conflict with the mixed use zone code and ultimately the centres strategy evident in the planning scheme; and
• existence of relevant matters warranting approval of the Change Application.

The key question for determination by the Court was whether the proposed change from showrooms to offices represented an out of centre development, inconsistent with the centres strategy running through the planning scheme (which was evident in the mixed use zone code).

Inconsistency with the centres strategy 

Having regard to:

• the relevant provisions of the planning scheme, including the strategic outcomes of the strategic framework, the purpose of the fringe business precinct of the mixed use zone code, and the relevant performance outcomes of the mixed use zone code; and
• the evidence of the Council’s expert economist and town planner (which was accepted by His Honour),

His Honour held that the Change Application was inconsistent with the centres strategy running throughout the planning scheme.

Relevant matters

The appellant relied upon the following relevant matters, which it said warranted approval of the Change Application:

• planning need;
• the Change Application would result in an efficient use of the site where currently there is no demand for showrooms but a demand for office space;
• the change from showrooms to offices will not cause any adverse economic or amenity impacts and that it will not have an adverse impact on the hierarchy of the centres strategy running throughout the planning scheme; and
• there were no adverse submissions lodged in objection to the change application.

Following a consideration of the above relevant matters contended by the appellant, His Honour held that the Change Application was ‘in significant conflict with the centres strategy’ and that to give the centres strategy any ‘meaningful effect it is necessary that large offices such as that contemplated by the proposed development locate within the centres which are designated as appropriate for them’.

The appeal was dismissed and the Council’s refusal of the change application from showrooms to offices was upheld.

Key takeaway

While there is a more flexible approach to development assessment under the Planning Act with the ability to take other relevant matters into account, consistency with relevant planning instruments remains a critical issue.  In particular, the Court will be reluctant to approve development that it is in significant conflict with relevant strategies and the mere absence of adverse impacts or adverse submissions are not sufficiently persuasive to justify a significant departure from clear planning strategy.

Authored by:

Stafford Hopewell, Partner

Claire Lovejoy, Director