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In the Planning and Environment Court Held At IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND P&E Appeal No. 8/1997 Before NEWTON D.C.J. [RE: WESTFIELD LIMITED – V GOLD COAST CITY COUNCIL & ORS] BETWEEN WESTFIELD LIMITED Appellant AND GOLD COAST CITY COUNCIL Respondent AND MEPC AUSTRALIA LIMITED First Respondent by election AND PERMANENT TRUSTEE AUSTRALIA LIMITED Second Respondent by election AND ROBINA TOWN CENTRE PTY LTD Thjrd Respondent by election AND AUSTRALIAN MUTUAL PROVIDENT FUND Fourth Respondent by election AND DREAMWORLD PTY LTD Fifth Respondent by election AND LEWIAC PTY LTD Sixth Respondent by election AND IOOF AUSTRALIA TRUSTEES (NSW) Ninth Respondent by election 2 REASONS FOR JUDGMENT Judgment Delivered: 5 November 1999 Catchwords: Town Planning – amended proposed plan of development – power of Court to approve a rezoning proposal which differs from that submitted to the local government – Section 7.1A (4) of the Local Government (Planning & Environment) Act 1990 and Section 7.1A (3B) – whether modifications proposed are of a minor nature – whether modification would adversely affect any person to a degree which would, if the circumstances allow, cause that person to make an objection – Section 4.15 (2) – whether proposed modification is of a minor nature by reference to the matters referred to Section 4.15 (3) – whether proposed amendment is materially different from the original Texbeam v Brisbane City Council & Ors (1995) QPLR 108. Reduction in size of original proposal – whether character of proposal is changed – whether centre in its amended form will represent a significant lesser role in the retail hierarchy – whether some persons who supported the original proposal may wish to object to amended proposal because of reduced benefits – whether some persons may wish to object to the amended proposal because of its impact on development at Coomera. Traffic Issues – whether changes to points of access to site raise safety and convenience concerns sufficient to prompt some persons to object – whether such changes amount to minor modifications – whether Chief Executive has approved alteration to location of access points – Section 4.15 (4). Town Planning Evidence – whether amended proposal results in a substantially reduced level of service leading to reduced amenity from a town planning perspective – whether amended proposal holds new implications for the centre hierarchy for City of the Gold Coast – whether development under the amended proposal will permit development of north west corner of site such as to contravene development of town centre. 3 Artificial Wet Lands - whether relocation to precinct 2 adjacent to shopping centre and car parks gives rise to issues of safety and dumping of shopping trolleys. Environmental Impact – effect of permitted amended proposal to proceed without being accompanied by Environment Impact Statement – Golden v Coffs Harbour Council (1991) 72 LGRA 104. Counsel: Mr P J Lyons Q.C. with Mr R S Litster for the appellant Mr J A M Innes for the respondent Mr S L Doyle S.C. with Mr M Rackemann for the second and third respondents by election Mr C L Hughes for the fifth respondent by election Mr M D Hinson S.C. for the sixth respondent by election Mr D Stanfield (Solicitor) for the ninth respondent by election Solicitors: Clayton Utz for the appellant McDonald Balanda & Associates for the respondent Minter Ellison for the second and third respondents by election Phillips Fox for the fifth respondent by election Freehill Hollingdale & Page for the sixth respondent by election Hopgood Granim for the ninth respondent by election Hearing Date: 30 & 31 August 1999, 1 – 3 September 1999, 6 – 10 September 1999, and 16 & 17 September 1999 4 IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND P&E Appeal No. 8/1997 BETWEEN WESTFIELD LIMITED Appellant AND GOLD COAST CITY COUNCIL Respondent AND MEPC AUSTRALIA LIMITED First Respondent by election AND PERMANENT TRUSTEE AUSTRALIA LIMITED Second Respondent by election AND ROBINA TOWN CENTRE PTY LTD Third Respondent by election AND AUSTRALIAN MUTUAL PROVIDENT FUND Fourth Respondent by election AND DREAMWORLD PTY LTD Fifth Respondent by election AND LEWIAC PTY LTD Sixth Respondent by election AND IOOF AUSTRALIA TRUSTEES (NSW) Ninth Respondent by election 5 REASONS FOR JUDGMENT – NEWTON DCJ (Delivered the 5th day of November 1999) In July, 1996 the appellant Westfield Limited applied to rezone the subject site from the Special Facilities (Commercial and Industrial Centre, Rural, Special Purpose (Closed Railway) and Special Purpose (Railway) zones to the Special Facilities (Helensvale Town Centre) zone. On 26 February, 1997 the appellant appealed against the deemed refusal of the rezoning application by the respondent Council. The appellant now seeks to amend the original proposed plan of development prior to this Court’s consideration of the development application. The subject site is located at the south-eastern corner of the Gold Coast Highway and Pacific Highway intersection, Gaven and adjoins the Helensvale Railway Station. The site is situated approximately 7 kilometres south of Coomera and is adjacent to the suburbs of Helensvale (north of the Gold Coast Highway), Arundel (east of Coombabah Creek) and Oxenford (to the north west of the Pacific Highway and Gold Coast Highway interchange). The subject site has frontage to the Pacific Highway, Gold Coast Highway, Millaroo Drive and Coombabah Creek. The majority of the land is currently vacant with the exception of a small plant nursery. Two dams are located in the south- eastern portion of the site. The subject site drains to the east into Coombabah Creek. 6 The surrounding area is characterised by a diversity of land uses. The existing Helensvale Plaza shopping development is situated opposite the subject site and along the northern side of the Gold Coast Highway. The suburb of Helensvale is situated to the north of the Gold Coast Highway. The Helensvale Railway Station and the Gold Coast County Club golf course adjoin the subject site to the east. The Coombabah Lake Conservation Park and Ivan Gibbs Wetlands Reserve are situated along the eastern side of Coombabah Creek, south of Coombabah Lake. Land along the western side of the Pacific Highway is developed for urban residential purposes. Rural and vacant land is situated further west. To the north are tourist attractions and theme parks. Urban residential development exists south of the subject site. The original proposed plan of development relates to a town centre development including a major shopping centre, retail showrooms, professional services, commercial office space and entertainment facilities. Under this plan the proposed town centre is to comprise three precincts: • Precinct 1 – mixed use town centre • Precinct 2 – major shopping development • Precinct 3 – artificial wetland area The original proposed plan of development allows for different land use entitlements within each of the three identified precincts. In particular, the shopping centre is to contain a gross lettable area of not more than 69,700m² , of which shops will comprise a maximum area of 59,200m² . Development is intended to proceed in accordance with 7 the performance criteria contained within the original proposed plan of development which refer to the relevant principles of section 2.6.4.1 (Town Centres) and section 2.6.5 (General Development Guidelines) of Development Control Plan 5 – Albert Corridor (Planning Scheme for the former Albert Shire). The proposed amended plan of development seeks to provide further information concerning the range of uses, floor areas and building heights for development within Precincts land 2. In particular, the proposed amended plan of development seeks to alter the scale, urban form, floorspace and layout of the proposed town centre. The amended plan is dated 28 May 1998. At least one of the town planners who testified at this hearing commented adversely on the appellant’s presentation of the two applications. I agree that the presentation of plans at different scales, with different titles and content, and in different forms subject to clarification, provided in other documents has made the task of comparison unnecessarily complex. In addition, a further amended plan of development is now propounded by the appellant under the title of “Minor Drafting Amendments”. Notwithstanding the heading, the question of whether these so-called drafting amendments are “minor” has been the subject of vehement disagreement among the expert witnesses, although ultimately their precise categorization is of little consequence. In this judgment I do not distinguish between the amended plan of development and the further amended plan of development. I refer to the proposed amended plan as that plan which the applicant now seeks to progress. The key changes between the original and proposed amended plans of development have been conveniently gathered in the Town Planning Report of Mr Brannock who testified 8 on behalf of the second and third respondents by election. He identified these changes as follows:- Precincts 1 and 2 • The common boundary between Precincts 1 and 2 has been altered in the proposed amended plan of development. The extent of Precinct 1 appears to have been increased along its western alignment. • Precinct areas are not identified in either the original or proposed amended plan of development. This detail would be needed to determine the quantitative area changes between Precincts 1 and 2. Precinct 1 The proposed amended Plan of Development assigns specific uses to particular areas within Precinct 1. Precinct 1 has been divided into Areas A, B and C. A Schedule of permitted uses is specified for each of these areas. Consent and prohibited uses are not listed and the following uses are excluded from the list of permitted uses: display home, estate sales office, funeral parlour, general store, hospital, transport terminal, warehouse and access to Precinct 3. Other modifications include restricting light industry to motor showrooms, and limiting public recreation to art gallery, amusement parlour, bowling, gymnasium, pool and tennis/squash.
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