06/0823 - Proposed change to development approval · 132006.823.04

Sunshine Coast Regional Council
7 November 2008

 

have regard to in considering the materiality of the change in the intensity or scale of the use
originally approved.”

3. Lastly, because in a legal sense there is no start of a new use or intensification of an existing
use, there is no material change of use and therefore no assessable development arising.
Consequently, s. 3.5.33 of the IPA is also capable of operating.

The definition of “use” in the IPA includes incidental and necessarily associated uses. It is necessary
to establish some inevitable or unavoidable connection between the new or different activity and the
primary use for the former to be categorised as “necessarily associated with the latter”. * The
proposed change continues the primary residential use and as such must attract categorisation as
being necessarily, unavoidably and inevitably associated with the primary use.

The existence or otherwise of a material change of use is a question of fact and degree which is:
determined by examining the relevant circumstances. ° Similarly, the question of whether a change
of conditions constitutes a substantially different development is also one of fact and degree. ® The
materiality of the change is decided in the context of the IPA and the relevant planning instruments,
the question of whether or not there will be a material change of use “is not answered by trawling
through the various definitions in the planning scheme”. 7 Consequently i in our opinion, a definitional
change alone cannot give rise to a material change of use.

An example of how the Court will approach this question is found in His Honour Judge Newton's
reasoning in Herston Kelvin Grove Residents Action Group Inc. v. Brisbane City Council (2001)
QPELR 382 at 395. That case involved premises which were used for a convalescent home and
later a nursing home. Then the use changed to the housing of mentally disabled people. In this
context His Honour said:

“With respect to the question of whether there has been the start of a new use of the
premises, it is relevant to note that the original convalescent home probably mainly housed
and cared for people disabled by physical iliness or injury, while the nursing home mainly
housed and cared for people disabled by age-related conditions, and the present use
mainly houses and cares for people disabled by intellectual or psychological disabilities.
The common threads, therefore, may be said to include residence, care and disability. ...”

“.,. In the context of the history of uses on the site | have formed the opinion that the
current use is best described as a variation of the previous uses but that it cannot be
accepted to be anew use...”

In our opinion, parallel reasoning applies in the present circumstances. in fact, the proposed
changes are even less distinguishable than those involved in the Herston Kelvin Grove Residents
case.

Further consideration of determinative issues as to whether a proposal amounts to a “material
change of use’ within the IPA arose in Gorrie & Anor v Mackay City Council & Anor [2002] QPEC
074. In this case His Honour Judge Quirk found that a proposal to erect a roof covering over a
bowling green did not amount to a material change of use. In doing.so, His Honour observed that:

“... The question whether or not there has been a material change of use is not answered by
trawling through the various definitions in the Planning Scheme. This was done in this
case and a debate was opened as to whether the proposal would lead to the Ciub’s activities
becoming “indoor entertainment”. The exercise was, | believe, a distraction.”

“The real issue is whether the proposal, if put into effect, would lead to a change in the
intensity or scale of the use of the premises and if so whether the change would be material.
In dealing with matters of this kind a measure of commonsense is called for. A sensible

3 , Martin v Whitsunday Shire Council & Anor [2001] QPELR 348

, Morgan- Phoenix v Gold Coast City Council [2007] QPEC 31

5 Martin v Whitsunday Shire Council [2001] QPELR 348; Maroochy Shire Council v Barnes [2001]
QPELR 475 at [47], citing the Herston Kelvin Grove case

» Matus and Another v Cairns City Council & Anor (1981) QPLR 106 at 108

? Gorrie v Mackay City Councif [2003] QPELR 328 at [7]

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