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Attachment 2 - Letter from Thomson Geer · 132007.12.8
Attached to the e-mail 132007.12.8 - Changes Application - Noosaville Medical and Professional Centre 90 Goodchap Street , Noosaville.
Level 16, Waterfront Place
1 Eagle Street
Brisbane QLD 4000 Australia
GPO Box 169 Brisbane QLD 4001
DX 134 Brisbane
T +61 7 3338 7500
F +61 7 3338 7599
Our ref MFM:BGR:4042136
28 September 2017
Shane Adamson
Adamson Town Planning
[email protected]
Dear Shane
Proposed Additional Car Park and Office Space
Noosaville Medical and Professional Centre, 90 Goodchap Street, Noosaville
You have requested that we provide advice with respect to a change application that you wish to lodge,
pursuant to the provisions of the Planning Act 2016 (Planning Act), with respect to the existing
development approval for the Noosaville Medical and Professional Centre at 90 Goodchap Street,
Noosaville (the land).
1 Background
1.1 As you are aware, the approval history for the Noosaville Medical and Professional Centre is
relatively lengthy, dating back to an approval that was first granted by the Council by way of
Negotiated Decision Notice dated 7 March 2008.
1.2 Subsequent to the granting of the development approval in 2008 a number of changes were
made to the approval by way of successive applications to the Council.
1.3 Construction of the substantive built form of the development was completed in 2010, apart from
the area in the north-west of the land (behind the Telstra facility), which is the subject of this
advice.
1.4 In more recent times, on 3 February 2017 the Planning and Environment Court gave Judgment
(Appeal Number 3128 of 2015) approving a suite of changes to the development approval,
including revised car parking arrangements for the development. That Judgment represents the
current iteration of the development approval for the land (the current development approval).
1.5 In broad terms, the current development approval authorises the following:
(a) A variety of uses including Education - Type 3 – Adult, Retail Business - Type 1 – Local,
Retail Business Type 2 Shop and Salon or Entertainment and Dining Business Type 1
Food and Beverages, Commercial Business Type 1 – Office and Commercial Business
Type 2 – Medical;1
(b) Condition 12 of the development approval authorises a total maximum gross floor area of
6,054m2, with certain sub-limits apportioned to some of the listed uses mentioned in (a),
above;
1 The existing child care centres on the land are the subject of a separate development approval and are not the subject of this
advice.
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(c) Two large, two storey buildings (with some underground car parking on a third level),
described as Buildings A and B; and
(d) A total of 366 car parks plus 12 motorcycle bays, which are deemed to be equivalent to 3
further car parks. In other words, 369 car parks (or equivalent) are required for the
development as approved, including the child care centres.
2 Proposed Change to Current Development Approval
2.1 Under the terms of the current development approval, the north-west corner of the land (behind
the existing Telstra facility) is to comprise of an at grade car park with 72 spaces. A multi-storey
car park was previously required in this area, but the Court Judgment of February 2017 removed
the need to construct this larger car park.
2.2 It is this north-western area that is the subject of the change application that we have been asked
to advise upon, which provides for a new Stage 3 for the development.
2.3 In particular, we understand that the change application proposes built form for this north-western
corner of the land generally in accordance with the following plans (the proposal plans):
(a) 'DA Drawings – Site Plan', Drawing No. DA 01C, Dated March 2017;
(b) 'DA Drawings – Level 1 Plan', Drawing No. DA 02C, Dated March 2017;
(c) 'DA Drawings – Level 2 Plan', Drawing No. DA 03C, Dated March 2017;
(d) 'DA Drawings – Level 3 Plan', Drawing No. DA 04C, Dated March 2017;
(e) 'DA Drawings – Elevations', Drawing No. DA 05C, Dated March 2017; and
(f) 'DA Drawings – Elevs and Sections', Drawing No. DA 06C, Dated March 2017
2.4 The proposal plans show the following changes to the current development approval:
(a) A two storey car parking structure that would include a total of 106 car parking spaces. 72
of these spaces would be intended to provide the same 72 spaces contemplated under
the current development approval for this area, with the remaining 34 spaces servicing
the additional GFA referred to in point (b), below; and
(b) A partial third storey (above the two storeys of parking) comprising a total GFA of 675m2,
which would connect by way of elevated walkway to existing Building B.
2.5 Changes are also sought to Condition 12 of the current development approval, with the revised
condition proposed to read as follows (changes tracked from the current version of the condition):
12. The development is permitted a total maximum use area of 6,054m26,729m2 with each
individual use permitted the following maximum use areas at any one time:-
12.1. Education – Type 3 Adult – 3,398m22,723m2 comprising a maximum of 1,400m2
student contact area and 1323m21,998m2 of non-student contact area
12.2. Retail Business – Type 1 Local – 100m2
12.3. Retail Business Type 2 Shop and Salon or Entertainment and Dining Business
Type 1 Food and Beverages – 236m2 (includes 16m2 of outdoor dining).
12.4. The remaining use area being available for:
Commercial Business Type 1 – Office
Commercial Business Type 2 – Medical
Commercial Business Type 3 – Veterinary
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2.6 A more detailed analysis of the proposed changes to the current development approval are
contained in the town planning report that you have prepared and that we understand will be
provided to the Council. This report also notes certain consequential amendments that are
required to other conditions of approval to reflect the revised plans and revised version of
Condition 12, noted above.
3 Appropriate Entity for Lodgement of Change Application
3.1 On 3 July 2017 the former Sustainable Planning Act 2009 was repealed and a new piece of
legislation, the Planning Act 2016 (Planning Act), came into effect in its place. Consequently, all
future development applications and changes proposed for the land are governed by the Planning
Act.
3.2 Under the terms of the Planning Act any change application for the Noosaville Medical and
Professional Centre must be lodged with the Council. We say this because:
(a) The original development approval was granted by the Council and not the Court (see
sections 78(3)(b)(ii) and 78(3)(c) Planning Act). Whilst the current version of the
development approval takes the form of a Court Order, the approval itself was granted by
the Council in 2008. Subsequent changes to that approval (like the 2017 Court Order) do
not represent the "development approval" for the purposes of this test; and
(b) In any event, as no submissions were lodged during the public notification of the
development application, the change application cannot be lodged with the Court and
must be lodged with the Council (section 78(3)(b)(iii) and 78(3)(c) Planning Act).
4 Change Applications
4.1 A change application lodged with the Council pursuant to the terms of the Planning Act can
proceed through one of two assessment processes, being:
(a) If the change application represents a "minor change" to the current development
approval then it proceeds through a relatively streamlined assessment and determination
process by the Council (see section 81 Planning Act);
(b) If the change does not represent a "minor change", it proceeds through a lengthier
assessment process that is more akin to the assessment process for a complete
development application (see section 82 Planning Act).
4.2 In either case, the Council's decision with respect to that change application can be appealed to
the Planning and Environment Court (see section 229 and Schedule 1 Planning Act).
4.3 The question therefore arises as to whether the proposal plans and the related amendments to
Condition 12 represent a "minor change" to the current development approval.
5 "Minor Change"
5.1 The phrase "minor change" is defined in Schedule 2 of the Planning Act. There are a number of
tests that apply, all of which are addressed in the town planning report that you have prepared.
There seems to be little doubt or controversy with respect to the majority of those tests, which are
set out in clear and objective terms and are met by the changes the subject of this advice (e.g.
the fact that the changes do not introduce prohibited development, that the changes do not trigger
additional referral agencies).
5.2 The only subjective element of the "minor change" test is whether the changes would "result in a
substantially different development". That test is considered in greater detail below.
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6 The Substantially Different Development Test
6.1 The "substantially different development" test has formed part of Queensland planning law for
some time now. Whilst the recent introduction of the Planning Act has amended the process for
changing development approvals (together with other changes to the development assessment
and approval regime), the "substantially different development" test is not a matter that has been
the subject of amendment in the new Planning Act.
6.2 Whether a change to an approval will result in a "substantially different development" is a
question of the nature and scale of the change to be determined in the circumstances of each
individual case. Whether a change results in a substantially different development is a matter
which should be looked at broadly and fairly.2
6.3 "Substantial” is defined 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 …”
6.4 Schedule 1 of the Development Assessment Rules (DA Rules) provide the following guidance
with respect to the phrase "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 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.
6.5 The matters noted in point 4 of Schedule 1 of the DA Rules are effectively identical to the former
Statutory Guideline that was in place under the terms of the Sustainable Planning Act 2009. In
the context of that Guideline, the Court made the following comments:3
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.
2 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510.
3 Ibid, at 511.
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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.
6.6 In a separate case discussing the application of that same Guideline, the Court noted that:4
The guideline is no more than that. The examples given are not exhaustive, nor are they
determinative – they are simply some examples of changes that may result in substantially
different development, depending on the individual circumstances of the case. The assessment of
whether a proposed change would, or would not, result in a substantially different development
involves matters of fact and degree, to be considered broadly and fairly, having regard to the
overall development application. It is relevant to consider the changes from a qualitative as well
as a quantitative perspective; and to consider both tangible and intangible impacts. It has been
observed that the Court will scrutinise more critically those changes which have the potential to
raise new or additional impacts, not dealt with at the development application stage.
6.7 Although each case will depend on its own facts, the Court has been prepared to adopt a
generous approach in considering what is a substantially different development, including the
following:
(a) An increase in the number of proposed residential low density zoned lots from 224 as
publicly notified to 298, an increase of 74 lots but those lots being contained on a smaller
development footprint;5
(b) The addition of a third level of residential to the original proposal for two levels above
parking in a series of buildings, resulting in an increase from 96 to 125 dwellings (30%);6
4 Multus Pty Ltd as Trustee for the Multus Trust Trading as Maxime v Rockhampton Regional Council & Ors [2016] QPEC 22 at [11].
5 Auspacific Engineers P/L v Scenic Rim Regional Council & Ors [2010] QPEC 117.
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(c) The reduction in the height of a building from 13 levels to 7, with a resulting reduction in
the number of residential units from 57, containing 97 bedrooms, to 52 containing 81
bedrooms.7
6.8 Most recently, the Court found that the proposed changes to a large mixed use development in
Noosa were too great and would result in a substantially different development. The Court
described the changes as: 8
The principal changes to the Locality Plan proposed by the appellant include a reduction in the
number of precincts from 4 to 2 with the amalgamation of some development areas and the
removal of others. Essentially, precinct 1 is reduced in size and intensity, precinct 2 is deleted,
precinct 3 is reduced in size and intensity and renamed precinct 2 and precinct 4 is also deleted.
The amount of attached housing has been reduced, the lot sizes for detached housing have
increased, and the proposed neighbourhood centre in precinct 1 is different. Retirement and
special needs housing is no longer proposed. There has been a significant reduction in the
proposed density, overall a maximum of 1,009 attached and detached dwellings is replaced by
251 dwelling units, a reduction of over 75%. Attached dwellings have been reduced from 407 to
40, a reduction of over 90%. There have also been considerable changes to the proposed
access to the development with the deletion of a roundabout on Walter Hay Drive, at which
location there will now be only left in and left out traffic movements. Changes to the internal road
linkages, which are also proposed by the appellant, will result in less direct access to most of the
proposed development and the loss of the opportunity for public transport services to access
precinct 1.
6.9 With respect to changes that could be categorised as 'significant' in a numerical sense, the Court
has stressed that a simple review of the numerical parameters of a development is not the only
relevant consideration with respect to what constitutes a "substantially different development". In
particular, the Court has stated: 9
In this case, the change to the scale and bulk of the proposal is significant in a numerical
sense, albeit that the height and general appearance of the development does not
markedly change. In other contexts, a change of this magnitude may be regarded as
dramatic and indeed sufficient so to, in the circumstances of a particular case, to result in a
substantially different development. In this case, however, when one has regard to the
context, including the size of the subject land and its separation from sensitive land uses,
the impact of the increase in scale and bulk is not significant.
7 Analysis of Proposed Changes
7.1 Having regard to a comparison of the current development approval and the proposal plans,
together with the analysis of the changes set out in the town planning report, in our view the
proposed changes in this case fall within the ambit of changes that would not be classed as a
"substantially different development".
7.2 With respect to the matters listed in Schedule 1, Point 4 of the DA Rules, it is clear that
subparagraphs (b), (d), (e), (f), (g), (h) and (i) cannot reasonably be said to be relevant to the
proposed changes that are addressed in this letter. That leaves only subparagraphs (a) and (c)
for further consideration, being:
(a) involves a new use; or
(c) dramatically changes the built form in terms of scale, bulk and appearance; or
7.3 With respect to these matters, we note the following:
6 Minamarc Pty Ltd v Gold Coast City Council [2010] QPEC 146.
7 Indigo (Palm Beach) Land Owner Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 27.
8 Northbrook Corporation Pty Ltd v Noosa Shire Council & Ors [2015] QPEC 24.
9 Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v Gold Coast City Council [2014] QPEC 63
at page 3.
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(a) The increase in GFA (675m2, to a total of 6,729m2) is relatively small in terms of both m2
and percentage. It is an increase of only 11.1% as compared to the current development
approval (at 6,054m2), being far less than the scale of increases that have been allowed
by the Court in the past (e.g. 30%). Moreover, the original 2008 approval contemplated a
GFA of up to 6,304m2. The terms of that original approval, which were the subject of
public notification, are a relevant matter for the Council to consider when assessing the
proposed changes. This servers to further reduce the scale of the increase in relative
terms;
(b) With respect to the increased amount of GFA for Education non-contact area that is
proposed (from 1,323m2 to 1,998m2), this increase is simply reflective of the increase in
the GFA of the overall development (which, for the reasons noted above, is not an issue
of concern). Moreover, this additional GFA will, in practice, serve as office and
administrative space. Condition 12.4 of the current development approval already
contemplates a potentially large amount of this office space, so the additional Education
office space does not represent a significant change to the terms of the current
development approval;
(c) The first two levels of the new structure will comprise of car parking, being an identical
use to what was proposed for this area as part of the original 2008 approval;
(d) The new structure at the north-west of the overall land will be well set back from the
property boundaries (3m on all sides), ensuring impacts on adjoining properties are
appropriately mitigated. Moreover, this setback is identical to the boundary setbacks for
the multi-level carpark that was proposed for this area as part of the original 2008
approval, meaning that the new structure has the same basic bulk (in terms of its length
and width) and setback as has previously been approved for this area;
(e) The new structure will have a maximum height of RL17.5m (the lift overrun) and a roof
with a maximum height of RL16.3m (where there is no third storey the maximum roof
height will be lower still). In this regard:
(i) The current built form on the land extends to a height of RL18.1m in parts, so this
new structure will be lower than the existing maximum height for the approved
development;
(ii) That maximum height (i.e. the lift and its overrun) is located as far as is
reasonably practicable from the residences that adjoin the land to the west and
closer to the centre of the land, reducing the appearance of that part of the built
form to those residences and all other external observers;
(iii) The three storey component of the new structure is a minimum of 14m away from
the boundary to those residences. Furthermore, the first storey of the new
structure is located partially below ground. As such, the predominant view from
the adjoining residential area will be of a 2 storey structure, not a 3 storey
structure;
(iv) The original 2008 approval contemplated a multi-storey car park in this area that
had a height of up to 10.5m above ground level (i.e. 3 storeys). This is generally
consistent with what is now proposed for this area and, as noted with respect to
the comments in paragraph (a), above, this consistency is a relevant matter for
the Council to consider in its assessment of the changes that are now proposed;
(f) Having regard to paragraphs (d) and (e), the new multi-storey building is consistent with
what has previously been contemplated by the development approval, is consistent with
what is already approved/constructed on the land and does not represent a significant
change to the development. It cannot be said that this new structure will "dramatically
change the built form in terms of scale, bulk and appearance";
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(g) The introduction of the Commercial Business Type 3 – Veterinary use is acceptable, and
does not constitute a "substantially difference development", in circumstances where:
(i) Other Commercial Business uses are already approved and operating on the
land (including the very similar medical and office uses), meaning that this new
use is broadly consistent with what is already approved and operating on the
land. Indeed, to an external observer a veterinary office/practice would be
virtually identical (in terms of appearance and impacts) to a doctor's
office/practice, which is already allowed to operate from the land;
(ii) Under the terms of Noosa Plan 2006, the planning scheme in force when the
original approval was granted and that remains in force today, Commercial
Business Type 3 is specifically listed as a consistent use for this land and is
subject only to code assessment.10 There can therefore be no question that
public submission rights (or the like) would be lost as a result of the inclusion of
this use as part of the existing development approval. No public submission rights
with respect to this use have ever been available in any event.
8 Summary
8.1 The changes as a whole, given the scale of the proposed development, the nature of the changes
and the planning controls that applied to the original application and that apply to the land today,
do not result in a "substantially different development".
8.2 Even if it could be said the changes were 'dramatic' or 'significant', a proposition that we would
not agree with, it has been noted by the Court that this does not mean the changes automatically
result in a "substantially different development".11
8.3 In our view, the changes proposed fall within the scope of a change to the approval that does not
result in a "substantially different development". The proposed changes are also broadly
consistent with other circumstances where the Court has approved permissible change requests
(under the similar terms of the Sustainable Planning Act 2009), as outlined above.
8.4 Consequently, we consider that the changes proposed to the current development approval are a
"minor change" and that the changes can be assessed and determined by the Council pursuant
to the requirements set out in section 81 Planning Act 2016.
If you have any queries regarding the above matters, please contact us.
Yours sincerely
Michael Marshall
Partner
T +61 7 3338 7525
M 0407 914 748
E [email protected]
10 See Table 11.8 of Noosa Plan 2006. All of the land the subject of this advice was part of former Lot 1 on RP900855.
11 Dempsey v Brisbane City Council [2012] QPEC 2.
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