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.

The specified Areas have been divided into the following sub-areas: Areas A (a) and (b),

Areas B (a), (b) and (c) and Area C. A Schedule of maximum floor area (Gross Lettable 9

Area) and building heights (storeys) applies to each of these sub-areas. Therefore greater detail is provided with respect to the floor area and built form parameters in Precinct 1.

The proposed amended Plan of Development introduces a total GLA requirement of

28,500m² for Precinct 1 and a height limit of between 1 and 2 storeys. The maximum floor area for any retail shop or groups of shops has been reduced from 3,000m² in the original proposal to 1,500m² in the proposed amended Plan of Development.

The Development Form diagram for Precinct 1 of the proposed amended Plan of

Development shows the location of the permitted uses shown in the Schedule to the

Precinct 1. In particular, the location of Shop is restricted to Area B(b).

The pattern of building envelopes within Area C and Area B (b) is different from the original proposal.

The proposed amended Plan of Development does not include a Precinct intent or development form requirements. Instead there are two notes attaching to the Schedule for Precinct 1:

“Note: GLA is the gross lettable area – retail as per the Property Council of Australia Definition dated March 1997-01-01

Note: Development is also subject to the controls found in the Planning Scheme for the City of the Gold Coast (former Albert Shire) including Development Control Plan 5 – Albert Corridor, except where expressly modified.” 10

Precinct 2

The nominated use rights for Precinct 2 are proposed to be altered to the identification of permitted uses only. The uses of educational establishment, hotel minor tourist facilities, passenger terminal, transport terminal, veterinary clinic, veterinary hospital and access to

Precinct 3 are proposed to be deleted. Public recreation is to be limited to amusement parlours and cinemas and Special Uses are to be limited to governmental services and offices. Artificial wetland is proposed to be added to the list of permitted uses.

The proposed amended Development Form diagram for Precinct 2 (Upper Floor and

Ground Floor) shows the location of the permitted uses and development requirements shown in the Schedule to Precinct 2. This is to replace the original indicative

Development Form diagram for Precinct 2.

The proposed amended Schedule to Precinct 2 specifies the maximum gross lettable area for the retain and non-retail components of the Precinct. The floor area differences between the original Plan of Development and the proposed amended Plan of

Development are summarised in the following table. 11

TABLE SUMMARY OF FLOOR AREA CHANGES - (Sources: EIS and Proposed Amended Plan of Development) Tenant Original Proposed Amended Plan of Proposal Development GLAm² GLAm² Proposed Changes Retailing Title Altered Department Store 15,000 9,000 Discount Department Stores(2) 16,000 6,500 (1) Only Supermarkets (2) 8,000 8,000 Mini-Major 7,300 2,000

Speciality Shops 11,000 11,500 Food Court 1,000 1,000 Retail Catering 900 - Total Retail Area 59,200 38,000 Retail GLA reduced Commercial Title Altered Professional Services/Offiice Commercial premises, Space 2,000 2,050 office, professional office & medical centre Restaurants and Cafes 1,100 2,000 Restaurant

Community Title Altered

Cinemas 5,300 3,600 12 screens, 3000 seats Entertainment 2,100 700 Amusement parlour

Total Non-Retail 10,500 8,350 Non-Retail GLA reduced

TOTAL CENTRE 69,700 46,350 Total GLA reduced

Overall the total GLA for Precinct 2 is proposed to be significantly reduced by 23,350m² or 34%. Retail floorspace is to be reduced by 21,200m² or 36% and non-retain floorspace by 2,150m² or 20%.

In the amended Plan of Development, an intent and development form are not specified for Precinct 2. However, two notes are made under the Schedule to Precinct 2: 12

“Note: GLA is the Gross Lettable Area – Retail as per the Property Council of Australia definition dated March 1997.

Precinct 3

Precinct 3 is proposed to be excluded from the subject site under the proposed amended

Plan of Development. The area currently comprising Precinct 3 is the only portion of the subject site which was situated to the east of the Brisbane – Gold Coast railway line. In the original plan of development, part of Lot 4 on RP880355 (which had a total allotment area of 28.733ha) comprising approximately 8.5ha was part of the subject site. The proposed amended Plan of Development states that this part of Lot 4 is to be reduced to

7.5ha, thereby altering the total area of the subject land from 35ha to 34ha in accordance with the deletion of Precinct 3.

Internal and External Transport and Circulation

Figure 5 of the original proposed Plan of Development shows the internal and external transport circulation and parking for the development proposal. This is to be revised in the Circulation Plan constituting part of the proposed amended Plan of Development.

The proposed amended Circulation Plan depicts a more extensive bicycle and pedestrian network. The internal location of bus stops and car parking areas is to be amended. 13

The proposed amendments in respect of road planning design, especially in the vicinity of the Gold Coast Highway and Pacific Highway intersection, have been addressed by

Roger Brameld.

The total number of car parks servicing the proposed development is to be reduced from

4,400 spaces to 2,750 spaces as stipulated in the amended correspondence from Dredge &

Bell dated 26 July 1996 (as amended in accordance with proposed amended Plan of

Development).

Indicative Urban Form

Figure 3 of the original proposed Plan of Development depicted an indicative urban form.

This is proposed to be replaced by the Urban Form diagram of the proposed amended

Plan of Development. The internal building pattern of the proposed amendment features different built forms or building envelopes. The preferred extent of building edge – zero setback to footpath has been altered, particularly in the northern and central areas of the site and along the western extent of the proposed built edge. The extent of verandah/pedestrian protection over footpaths has also been altered.

Jurisdiction of Court

The power of this Court to approve a rezoning proposal that differs from that submitted to the local government was considered by the Court of Appeal in Ecovale Pty Ltd v Gold

Coast City Council [1999] 2 Qld R35. Fitzgerald P. at pp 37-38 stated that: 14

“Nor did the objector submit that the Planning and Environment Court did not have power to make an order that the applicant’s development “be generally in accordance with” a different plan from that approved by the Council. After much debate, amid considerable confusion, it was accepted in this Court that, depending on the circumstances, such a power is to be found in ss 7.1A (3B) or (4) of the Local Government (Planning and Environment) Act 1990. It was also accepted that there are limitations on the powers granted by those provisions despite their wide terms. While the precise parameters of the Planning and Environment Court’s material powers and their limitations were not sought to be identified, it was accepted that, so far as presently material, the power of modification given to a “local government” by s.4.15 of the Act provides a practical analogy for the ascertainment of the limitations on the Planning and Environment Court’s powers under ss 7.1A (3B) and (4). Although it is regrettable that the statutory position is not clearer, the approach of the parties accords with the practice of the Planning and Environment Court, and avoids an obviously undesirable gap in the legislation. In my opinion, this Court should proceed on the footing that (i) the Planning and Environment Court has a limited power to approve a different rezoning proposal from that submitted to the relevant local government, and (ii) the limitation is derived by analogy from s.4.15 of the Act”.

Pincus J.A. at pp 42-43 stated that:

“There is nothing in the Act which expressly empowers the Planning and Environment Court to approve a rezoning application differing from that which was considered by the local authority.(----) If the Planning and Environment Court has a power, on an appeal relating to a rezoning approval, to order that the approval be varied in the way which is in issue, that must be found in the statute. Section 7.1A (3) of the Act empowers the court to allow an appeal against a refusal or condition of approval absolutely or subject to conditions; under subs. (3B) of the same section the court may vary a condition imposed by the local authority. Under subs. (3E) the court may in determining an appeal “give such orders and directions as it considers appropriate”, but this is in my view confined to procedural orders and directions.

It will be seen that the only explicit power to change the terms of the approval the subject of the appeal is by way or imposition or variation of conditions. Although the contrary was suggested, what is in issue here is not imposition or variation of a condition, but a change in the plan that being not a condition of approval but part of what is approved. As has been pointed out the scheme contemplates that there will be a plan submitted for approval and when the rezoning is effected, development substantially in accordance with that plan becomes an “as of right” use. 15

It is noteworthy that the power of a local authority to modify an application for rezoning and certain other applications is elaborately prescribed by s.4.15 of the Act, whereas the Act contains nothing to say directly whether the court may do the same; so far as the express terms of the Act are concerned, the only power in the Planning and Environment Court to modify an approval the subject of an appeal, otherwise than by imposing or varying conditions, on an application for review of a decision of the local authority is under s.4.15: see subs (10) – (15).

One tends to be reluctant to hold that the Planning and Environment Court has no power to vary an approval the subject of an appeal to it, otherwise than with respect to conditions, if only because for some time the Planning and Environment Court and its predecessor have purported to exercise that power. And this has been done, not by the device of treating a change in what is proposed as a variation or imposition of a condition, but rather on the assumption that the court has a general power to treat the application as amended.(----) the assumption that the court may act as did the primary judge in the present case has been made for many years and has survived substantial changes in the relevant statutory provisions – none of which, so far as I have been able to ascertain, have ever given the court hearing appeals from local authority decisions on rezoning express power to consider and approve a modified proposal.

Although the position is and remains unclear, it appears to me that one should read s.7.1A (4) of the Act as implying a power in the Planning and Environment Court to change the proposed rezoning. The statute does not express any limits to that power, but it appears to me that, since implications are necessary to achieve what one might infer was the legislative purpose, it should be implied that the limits of the court’s power of modification are to be found in s.4.15 (2) and (3) of the Act.(----)

It is clear, then, in the light of the passages quoted above, that this Court does have a limited power to approve a rezoning proposal which differs from that submitted to the local government. The source of this power is s.7.1A (4) of the Local Government

(Planning and Environment) Act 1990 or possibly s.7.1A (3B) of that Act. The limits upon the power are derived by analogy from s.4.15 of the Act, or by implication are to be found in that section. 16

In deciding an application to modify made to it pursuant to s.4.15, this Court may approve the application; or approve the application subject to conditions; or refuse to approve the application (s.4.15 (7)). The Court may not approve an application to modify where

(a) in its opinion the modification is not of a minor mature;

(b) in its opinion the modification would adversely affect any person

to a degree which would, if the circumstances allowed, cause that

person to make an objection (s.4.15 (2)).

Section 4.15 (3) of the Act states that a proposed modification is of a minor nature if:-

(a) the proposed use to be made of the land the subject of the

modification is not varied by the addition of different uses;

(b) the gross floor area of buildings or proposed buildings on the site is

to be increased by less than 5%;

building or proposed building or part thereof on the site is not to be

increased;

(d) the locations of the proposed ingress to or egress from the site are

not to be substantially altered;

(e) any altered ingress to or egress from the site is to be to or from the

roads – 17

(i) approved by the local government in dealing with the

relevant application; or

(ii) specified in the relevant application

(f) the amenity or the likely future amenity of the locality would not,

in the opinion of the (Court), be adversely affected by the proposed

modification.

I accept that the structure and language of s.4.15, properly construed, shows that the decision to approve or refuse the modification of an application involves a three stage process being:-

(i) first, whether s.4.15 (2) applies to preclude approval;

(ii) second, if s.4.15 (2) does not apply to preclude approval whether

the modification should be approved;

(iii) third, if the modification should be approved, whether that

approval should be given unconditionally or subject to conditions.

The Court is therefore required to form an opinion about two issues. If either of the opinions specified in s.4.15 (2) (a) and (b) is held, approval cannot be given. If neither opinion is held, the Court has power to approve the modification, but is not obliged to do so. There remains a discretion to approve or refuse approval. The statutory requirement that a modification be of a minor nature before it can be approved is satisfied only if changes to a proposal:- 18

(a) are a modification rather than a different proposal altogether; and

(b) are minor rather than major.

Accordingly, changes to a proposal may be characterised as constituting a different proposal rather than a modification, or as being a major modification, or as being a minor modification.

The question whether or not a modification is of a minor nature can be partly answered by reference to the criteria in s.4.15 (3). These can be a useful guide but each case must be assessed on its merits. (Texbeam v Brisbane City Council & Ors (1995) QPLR 108 per

Helman DCJ, as he then was at p.110). Section 4.15 (3) has been described as a deeming provision and not conclusive of the matters that may be regarded as minor modifications.

(Stavrianos Superannuation Funds 1 & 2 v Ipswich City Council; Emaas Pty Ltd v

Ipswich City Council [1999] QPELR 64 per Brabazon DCJ at p.66)

In the absence of an exhaustive definition of what constitutes a minor modification, it has been necessary for the Court to articulate a judicial test. In this regard I respectuflly adopt the following passage from the judgment of Helman DCJ in Texbeam (supra) at pp 109-110:-

“The principles that apply to an application of this kind are well established .….in considering the nature of a proposed amendment of variation the proposal ought to be looked at broadly and fairly for the purpose of determining whether the amendment or variation is of such consequence that public notice should be given of it. If then, looking at the new proposal broadly and fairly, the Court is to conclude that it is not materially different from the original one then clearly the appellant should not be put to the trouble and expense of giving further notice”. 19

Thus, when considering whether a proposal modification is of a minor nature, the Court is required to assess whether or not the application would result in a materially different proposal. A modification which does not result in a materially different proposal is properly to be characterised as a minor modification. A modification which does result in a materially different proposal (whether by way of a major modification or by way of a different proposal altogether) is not a minor modification. Obviously, the application of the test involves questions of fact and degree. Changes which are so extensive in degree as to result in a different kind or type of proposal are not minor modifications. However, changes need not be so extensive as to amount to a change in the kind or type of proposal before they can be said to exceed the limits of what constitutes a minor modification.

Thus, even where an amended proposal involves the same generic use as the original proposal, it does not necessarily thereby qualify as a minor modification. (see Hancock

Development Corporation Pty Ltd v City of Tea Tree Gully and Ors (1995) 55 LGRA

146 at 149 per Jacobs J.).

I have been urged by Senior Counsel for the appellant to bear in mind the observations of

Marks J in the Supreme Court of Victoria in Pacific Seven Pty Ltd v City of Sandringham

& Ors [1982] VR 157 at 163,164:

“Planning is a difficult exercise with flexibility an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual or community interest is served by recourse to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness”. 20

I accept the thrust of these observations, and in particular the exhortation contained in the final sentence. It seems, however, that little is added by this passage to the principles stated in Texbeam to which reference has already been made.

The Retail Offer Evidence

The evidence shows that under the amended proposal there has been a 33.5% reduction in the size of the shopping centre from 69,700m² to 46,360m². The retail component of the shopping centre has been reduced by 35.8% from 59,200m² to 38,000m². The non-retail component of the shopping centre has been reduced by 20.5% from 10,500m² to 8,300m².

Within the retail component there has been a reduction of 40% in the size of the department store from 15,000m² to 9,000m². There has also been a reduction in the number of discount department stores from two to one. The size of the discount department store floor space has been reduced by 59.4% from 16,000m² to 6,500m².

There has also been a reduction in floor space of the shops of 28.2% from 20,200m² to

14,500m². Most of this reduction (5,300m² out of 5,700m²) is accounted for by the reduced floor space for mini-majors. Within the non retail component the size of the cinemas has been reduced by 32.1% from 5,300m² to 3,600m².

These reductions obviously represent a significantly smaller centre. There is a difference in the terminology used by the expert witnesses to describe the results of the reduction.

Thus, in Mr McCracken’s view, it goes from being a large regional centre to a small regional centre. Mr Leyshon described the centre going from a major regional centre to a hybrid of a regional or sub regional centre. Mr Norling described the change as being 21 from major regional centre to regional centre. This description was also adopted by

Professor Kiel under the current Property Council of Australia definition. Little turns upon the variation in terminology.

The differences between the two proposals are not related only to size, but also to the relative importance of the retail elements within the shopping centre. Thus, under the original proposal the discount departments store component was the single largest retail element but is ranked only fourth out of five in the amended proposal. Specialty shops are now the single largest retail element although this component ranked only third in the original proposal.

A high level of comparison shopping at one location was offered in the original proposal with a full-line department store and two discount department stores accounting for

52.3% of retail floor space. There is a substantially reduced level of comparison shopping at one location under the amended proposal with a junior department store and a single discount department store occupying 40.8% of retail floor space. The floor space of the department store and discount department stores has been reduced by 50% between the original and amended proposals. Under the original proposal the specialty shops and supermarket accounted for 32.1% of retail floor space, whereas in the amended proposal these now account for 51.4% of retail floor space.

The department store, discount department store and mini-majors have been reduced in size from 64.6% of retail floor space originally to 46.1% in the amended proposal. There 22 has been a corresponding increase in the specialty shops and supermarkets from occupying about a third of the retail floor space in the original proposal to now occupy about half the retail floor space in the amended proposal.

The character of the shopping centre has, as a result of these changes, changed from one which originally was dominated by the department store and two discount department stores, to one which is now dominated by the specialty shops and supermarket. This, accordingly to Mr Buckley, results in a significant difference between the retail offer of each proposal from the consumers point of view. Both Mr McCracken and Mr Buckley agree that the amended proposal does not offer the same range and depth of comparison shopping as the original proposal. Mr McCracken testified that as a consequence of the reduction in size of the shopping centre, the amended proposal has different economic impacts when compared with the original proposal. Mr Buckley expressed the view that the reductions do not amount to a major change to the function of the shopping centre and that before a major change can be brought about there would have to be an unsettling of the balance involved, for example by the deletion of the department store. I cannot accept Mr Buckley’s evidence in that regard because the modifications proposed will result in a centre with a lesser “retail offer” which will be perceived by consumers as offering significantly less “performance convenience”. This latter term is one used by

Mr McCracken to reflect what he sees as the consumers’ perception that the amended proposal affords a different (and lower) level of facility. I accept that the reductions largely involve the anchor tenants which are the major drawcards to the centre and that as a result the centre in its amended form will be significantly less attractive to many 23 customers. This can be demonstrated in a quantitative way by reference to Mr

McCracken’s report which shows:

(i) As at June 2002 (using 1996 known market conditions) there will be a drop in

turnover of approximately $47.8 million representing a decrease of just over 20%.

(ii) As at June 2002 (using 1999 knowledge) there will be a drop in turnover of

approximately $53.1 million or about 26%.

This represents a very significant change in turnover reflecting the fact that the amended proposal has a clear and measurable lower level of facility than the original proposal.

The lower expected turnover and resulting lower level of facility (or “performance convenience”) arises from the amended proposal involving a significantly smaller department store with a reduced depth of range of goods, a reduction in the capacity for comparative shopping especially for discount department store shopping and an effect on the range of specialties.

Professor Kiel is of the view that the reduction from two discount department stores to one will have a negative psychological impact on shoppers, sending a message that it is a lesser centre. Mr Leyshon is of the view that the proposed reductions will most probably impact on the way in which the centre is marketed. Both views, in my opinion, are likely to be correct. 24

In my view, the current proposal is for a different kind of regional centre than had been proposed by the original proposal. The reduction in the retail offer in my view cannot be described as a “minor” modification. It is a materially different proposal. The reduced turnover performance and change in the retailing mix due to the deletion and down grading of the non-food anchor tenants, will substantially affect the actual trading potential of the centre which may result in a commensuately greater impact on nearby centres. I accept that the centre in its amended form will represent a significantly lesser role in the retail hierarchy where it will fall to be compared with the centres at Runaway

Bay and Australia Fair, rather than Pacific Fair and Robina Town Centre. The submissions on behalf of the appellant that the amended proposal performs the same function and contains the same elements as the centre originally proposed, cannot mask the significant difference in facilities offered by the amended proposal. The difference reflects a change of range, depth and competition within the elements of the centre and these factors should not be overlooked when considering the provisions of section

4.15 (2) (a) of the Act.

The effects of the modifications may well have impacts for possible objectors. I accept that the evidence generally demonstrated that customers will find the amended proposal considerably less attractive than the original. In these circumstances where there has been a reduction in the benefit to potential customers, it cannot simply be assumed that a decision not to object to the original proposal would necessarily become a decision not to object to the amended proposal. Professor Kiel’s evidence suggests that in the immediate area of the site the amended centre can be expected to take a greater share of 25 the market than is the case under the original proposal. Therefore it is at least possible that some particular convenience store will be adversely affected more by the amended proposal than by the original. Thus, some people may have decided to put up with the prejudice of losing their local convenience store in exchange for the perceived benefits of the higher order of retail offer of the original proposal. The benefits under the amended proposal may be sufficiently less weighty to such people to lead them to decide to object to the amended proposal in the hope of protecting their existing local convenience store.

Some people may have supported the original proposal on the basis that they would be able to carry out their discount department store comparison shopping at the centre.

This, under the original proposal, would have obviated the necessity for such customers in the trade area of the original proposal of driving to Robina, Pacific Fair or Runaway

Bay. However, the possibility of comparison discount department store shopping at the centre has been negated under the amended proposal. Thus, these customers will still have to perform this exercise elsewhere and this may result in them wishing to object to the amended proposal because the benefits to them under it are significantly reduced.

Accordingly, such customers may not be prepared to put up with the increased traffic congestion in return for having the reduced opportunity for comparative discount department store shopping as offered under the amended proposal.

Train commuters also may, in my opinion, reasonably decide that although they were prepared to put up with the increased traffic congestion in exchange for the retail offer of the original proposal, they are not prepared to do so in order to obtain the reduced retail 26 offer of the amended proposal. In this regard I accept the evidence of Mr Brameld that the original proposal will produce more traffic than the amended, however congestion is a significant issue for each proposal.

Some people who did not object to the original proposal may be disposed to object to the amended proposal because of the impact of it on the development of Coomera. The evidence is that both the original proposal and the amended proposal will at least delay if not defeat the eventual development of a major regional centre at Coomera. Under the original proposal, however, the Helensvale Centre would at least provide the high level facility envisaged by it. The amended proposal, however, cannot provide such high level facility and people may wish to object to the amended proposal because of the effect it will have in delaying the development of the Coomera Town Centre, while failing to deliver a correspondingly high level of facilities at Helensvale.

In Kentucky Fried Chicken Pty Ltd –v- Gantidis (1979) 140 CLR 675 at 687 Stephen J stated:-

“If the shopping facilities presently enjoyed by the community or planned for it in the future are in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning”.

In my view, the amended proposal will have that effect. Accepting, as I do, that the amended proposal will afford a lower level of retail facility than the original proposal and that under the original proposal consumers in the Northern Gold Coast region would have gained access to the range of products found in a large department store, the very high 27 level facility offered by the original proposal will not in the foreseeable future be provided by the amended proposal at either Helensvale or Coomera. This I accept results in a reduction in the amenity of people in the Northern Gold Coast region. I accept the contention of Senior Counsel for the second and third respondents that there may well be people who decided not to object to the original proposal because of the convenience afforded by it who may now wish to object to the modified proposal because of the impacts of it on the likely development of a town centre at Coomera.

The differences between the original and amended proposal, in my view, in terms of retail offer, are substantial, such that the amended proposal must be considered to be a materially different proposal compared with the original and not merely a minor modification. I am further satisfied that there may well be people for whom the outcome of the balancing of the benefits and the dis-benefits of the modified proposal are such that they would wish now to object.

This is not a case, in my view, where it can fairly be said that the proposed modifications involve simply a reduction in the scale of development thus lessening the effect of the development on the amenity of the area and the likelihood of persons to object (see

Navico Pty Ltd & Ors v Douglas Shire Council & Anor [1997] QPELR 298). It is necessary to assess the change in impacts likely to result from the amendments proposed.

It should not be assumed that change is synonomous with reduction. 28

Traffic Issues

In considering the physical changes to the changes to the external road system between the original and amended proposals, it is important to bear in mind that the issues relevant for present purposes are whether the changes are minor modifications and whether they have the effects referred to in section 4.15 (2) (b) of the Act, namely, whether the modifications would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to object. It is not to the point that the changes may have been brought about by current planning by the Department of Main Roads. I accept the submission by Senior Counsel for the second and third respondents by election that the motives for changes are irrelevant and that the appellant is not being criticized for changing its access proposals, but rather is simply being asked to allow public scrutiny of them by advertising a new application in light of the differences between what is now proposed compared with what was previously proposed.

The physical changes between the two proposals are not of themselves controversial.

They have been clearly identified in the reports of Mr Eppell, Mr Brameld and Mr Viney all of whom are accepted traffic engineering experts. A comparison of the two development proposals indicates the following changes:-

• In the original proposal, access from the Pacific Motorway itself is via an

off-ramp and then a loop connection to the Glade Drive overpass. In the amended

proposal, the loop connection is replaced by an extended off-ramp and service

road connection to the underpass; 29

• Egress from the site to the Pacific Motorway south is in the original proposal to be

via a ramp connection crossing the western site boundary approximately 120-

150m south of the northern site boundary. In the amended proposal, egress to the

Pacific Motorway south is via a signalized intersection to the Gold Coast

Highway approximately 250m east of the western site boundary from which

movement to the south bound on-ramp is achieved;

• Connection to Smith Street in the original proposal is via an extension to Millaroo

Drive across Coombabah Creek. Under the amended proposal the same

connections are via a proposed service road system parallel to and adjacent to the

Pacific Motorway;

• In the original proposal the connection to Glade Drive west of the Pacific

Motorway is via an overpass located south of the existing Pacific Motorway/Gold

Coast Highway interchange. In the amended proposal, this connection is via an

underpass approximately 50m south of the overpass originally proposed;

• In the original proposal access to the site by traffic travelling from the north on

the Pacific Motorway is via a signalized intersection approximately 80-90m east

of the western boundary of the site. Under the amended proposal access for this

traffic is via an underpass approximately 200m east of the western boundary; 30

• Under the original proposal traffic exiting the site heading north on the Pacific

Motorway exits via a signalized connection to the Gold Coast Highway

approximately 80-90m east of the western site boundary. In the amended

proposal, egress is via a signalized intersection approximately 250-260m east of

the western boundary;

• Access to the Gold Coast Highway (east bound) from the north western corner of

the site is no longer achieved by an overpass;

• In both proposals, connection to the Gold Coast Highway through land to the east

of the railway corridor is facilitated by a bridge over the railway corridor and road

dedication within that land. In the original proposal, that connection is not

required at opening. In the amended proposal, that connection may be required at

opening.

The first difference that requires consideration concerns the proposed new signalized intersection on the Gold Coast Highway/Pacific Motorway interchange. Under the original proposal there is no direct access to the Gold Coast Highway proper. Access is via a roundabout (1999) or signalized intersection (2009) to a carriageway linking with

Studio Village and, via a diverge, to the south along the Pacific Motorway. Under the amended proposal traffic from the site is to link directly with the Gold Coast

Highway/Pacific Motorway interchange. Thus, vehicle movements associated with that intersection will mix with traffic otherwise travelling along the Gold Coast 31

Highway/Pacific Motorway interchange. Mr Brameld expressed his concern in relation to these proposed changes with respect to both traffic safety and convenience points of view. Mr Brameld stated that it is inconsistent with the function of an otherwise free flowing interchange to add a signalized intersection at the location proposed. The appearance of traffic signals would be an unexpected element in the interchange environment. This factor is important when considering that traffic travelling along the interchange is likely to be travelling at up to 80 kilometers per hour. Even if the speed limit was reduced to 60 kilometers per hour Mr Brameld’s concerns would remain.

Motorists approaching the interchange will be required to make a number of decisions involving diverges, both up-stream and down-stream of the proposed intersection site and will have to assimilate information from a number of signs relating to those diverges.

Mr Brameld expressed his concern that to add a signalized intersection in the middle of that interchange with its array of decision making and information overload, will lead to safety hazards. The hazards arise from the probable confusion of a single driver confronted with the information and decision making referred to, and also from a number of different drivers reacting differently in those circumstances.

Mr Viney considered that the proposed signalized intersection is of very poor design and will create indecision and uncertainty in the driver’s mind. Mr Viney agreed that the signals would introduce signage difficulties and that it is potentially hazardous.

Mr Eppell, who testified on behalf of the appellant, did not share the concerns of his colleagues with respect to the potential safety concerns identified by his colleagues. In 32 my view, the proposed changes to the intersection are such as to introduce legitimate grounds for concern as to the hazards flowing from possible confusion of motorists confronted with the signage and information overload.

In relation to access to the site from people travelling from north of Helensvale, the original proposal involves a single diverge left at the commencement of the Gold Coast

Highway/Pacific Motorway interchange. The amended proposal involves a right-hand diverge to access the site following on closely after another right-hand diverge to join the

Gold Coast Highway to the south of the diverge. Both of these diverges occur within a relatively short distance after leaving the Pacific Motorway (with its expected 110 kilometers per hour speed limit) and after a road which takes traffic (on a dual lane carriageway) to the Gold Coast Highway to the east. Mr Brameld considers that the amended access involving a diverge to the right after a two lane carriageway, has potential safety concerns in that vehicles in the left lane will be required to move into the right lane in order to diverge to the right. Because vehicles in the left-hand lane are usually slower moving than those in the right-hand lane, there is a potential for collision as the slower moving traffic attempts to cut across the faster moving traffic. Mr Brameld is concerned that this manouvre is to be required in a section of road where drivers are already confronted with a degree of confusion in that the right-hand diverge for access to the site follows in close proximity to another right-hand diverge for people exiting the

Gold Coast Highway for Gaven. Mr Brameld considers that the distance between the two diverges is undesirably low and that even if the speed limit is set at 60 kilometers per hour a significant number of vehicles may be expected to still be travelling at speeds in 33 excess of this limit because they will not have had sufficient time to adjust to the lower speed limit after travelling at up to 110 kilometers per hour on the Pacific Motorway.

The proposed signage will require a reduction from 110 kilometers per hour to 60 kilometers per hour in a period of approximately five seconds. Mr Brameld states that it would be normal to take ten seconds to reduce speed by 20 kilometers per hour.

This concern is compounded by the number of signs that a motorist will encounter in close proximity to each other because of the short distance between the diverge to Gaven and that to the subject site. Mr Brameld described the safety hazards constituted by the amended access proposals as significant. His views were generally supported by Mr

Viney.

Mr Eppell was prepared to concede that from a traffic engineering point of view it is a better outcome to have diverges to the left rather than to the right and to have one diverge rather than two, particularly where two diverges are close together.

Again, I accept the evidence of Mr Brameld in relation to the safety hazards constituted by the proposed new shopping centre access. I cannot, in the circumstances, accept that the changes brought about by the amended proposal as they affect access from traffic travelling from the north of Helensvale are minor or that people will not wish to record their objections to the proposed changes.

In relation to ingress to the site from Nerang which under the amended proposal will require traffic to travel along an elongated loop by way of a service road to the west of 34 the motorway, I am satisfied that the changes from the original proposal may fairly be considered to be minor.

In relation to egress to Nerang, the original point of egress was via a loop ramp to the west of the site on to the Pacific Motorway. Under the amended proposal, traffic leaving the site to head to Nerang will proceed to the signalized intersection to the north west, turn left to the Gold Coast/Pacific Motorway connection and then proceed down the

Pacific Motorway. Mr Brameld has expressed two concerns in relation to these changes.

Firstly, the amended proposal is far less direct and therefore more inconvenient.

Secondly, the amended proposal will cause traffic using the signalized intersection to mix with traffic on the interchange before diverging from the motorway south to Nerang. Mr

Brameld described this change as significant. I accept Mr Brameld’s view in this regard and agree that there may well be people or organizations who may wish to object to the amended proposal after being informed of it by advertisement of a fresh application.

In accepting the concerns raised by Mr Brameld and Mr Viney in relation to traffic hazards and the probability of some road users wishing to object to the access arrangements contained in the amended proposal, I am not rejecting the evidence of Mr

Eppell that intersection treatments relating to the amended proposal have been updated to integrate with current planning by the Department of Main Roads, largely to accommodate projected future traffic flows which changed following the decision to upgrade the Pacific Motorway to eight lanes. It is true, as Mr Eppell points out, that the points of ingress and egress remain essentially the same but have been changed in form 35 and location in order to match current Departmental planning. It has been necessary for the appellant to arrange vehicular access to and circulation around the site to reflect changes to the external road network planned by the Department. Pedestrian access is essentially unchanged under the amended proposal. Car parking areas have been reduced in accordance with the reduction in the scale of development. Although the amended proposal provides for connections to the site in generally the same location as those originally proposed, the changes required in order to integrate with planned alterations to the external road system are not, in my view, of a minor nature, at least in those respects discussed above. It may be true, as Mr Eppell suggests, that less traffic will be generated in the external road system under the amended proposal because of the reduced scale of the core retail area, but such a reduction is not of itself determinative of the relevant issues. I accept Mr Brameld’s conclusion that the proposed amended development with its changed access arrangements are likely to have significant impacts on the external road network that did not exist under the original proposal. I am satisfied that the changes leading to these impacts are not minor and that it is desirable that the public should be consulted in accordance with the statutory provisions despite the fact that the changes may have been necessitated by amended Departmental plans.

Section 4.15 (4) of the Act provides that an alteration to the location of the proposed ingress to or egress from the site is to be taken to be a modification of a minor nature under certain conditions. In particular, such an alteration is to be taken to be of a minor nature if appropriate executive approval has been obtained with respect to the location as to the points of ingress and egress. There is no evidence before me to establish that 36 approval of the type referred to has been obtained. There is in existence an unexecuted draft Deed referring to an “in principle” agreement relating to access sites. This does not, in my view, satisfy the legislative requirement of Chief Executive level Departmental approval.

Town Planning Evidence

Mr Buckley, who testified on behalf of the appellant, expressed the view that the amended proposal represents a reduction in size and scale of the development without any loss of retail or service facilities ordinarily associated with a town centre development. This view may be correct as far as it goes, but it does not address the question of whether the amended proposal is of a different character and function to that which formed the basis of the original application, such that the changes may or may not be considered as of a minor nature. Both Mr Booth, who testified on behalf of the respondent Council, and Professor Brannock, who testified on behalf of the second and third respondents by election, expressed the view that the amended proposal results in a substantially reduced level of service leading to a substantially reduced amenity from a town planning perspective.

It is not simply a question of considering whether the amended proposal represents a reduction in size and scale, but whether the level of service offered by the amended proposal has been reduced to the extent that it offers less amenity than was offered by the original proposal, to the extent that it cannot achieve what was intended for the public by the original proposal. As Mr Booth pointed out, town planning has progressed from the 37 days when one might superficially say that a proposal which had been reduced in size was necessarily better. It is necessary to consider what the impacts of that reduction are for the community. In this case the amended proposal seems to me to offer such a substantially reduced level of service when compared to the original proposal that from a town planning perspective a substantially reduced amenity must result.

Professor Brannock concluded that as a result of the reduction in size and the change in componentry from the original proposal, the amended plan of development imposes such significant changes that a different type of centre would be developed, exhibiting a different function and level of service. In this sense, according to Professor Brannock, it would not be practical to equate a town centre facilitated under the proposed amended plan of development with that described by the original plan of development. In particular, Professor Brannock was concerned that the amendment proposed would adversely impact upon the identity of the town centre. Mr Booth supported that view and considered that a town centre is less likely to result from the amended proposal than from the original proposal.

One of the reasons advanced by Mr Buckley to support his conclusion that the amended proposal constitutes a minor amendment, is that floor areas and parking provisions have been reduced rather than increased. Indeed, the amended proposal does result in a reduction in floor area by more than two hectares, and this is reflected in a significant reduction in density. Expressed comparatively, the changes remove from the proposed development buildings of equivalent size to the Oasis shopping centre or of an area 38 similar to twice that of the city block of which the law courts at Southport comprise a component. Professor Brannock points out that the major shopping centre constitutes the key retailing element of the proposed town centre. The reduction by one third of the proposed floor space of the major shopping centre and the reduction in the total area of the subject site by one hectare, implies that the density of a town centre facilitated under the amended proposal would be much lower than under the original, affecting its overall character and visual appearance. In Professor Brannock’s view, the proposed amendment would generate a low density and extensive built form. He sees the resulting major shopping development as being likely to be unnecessarily space consuming, thereby reducing its convenience for pedestrians, and its visual and functional cohesiveness. This would adversely impact upon the identity of the town centre. I accept the evidence of Professor Brannock in this regard and, in my view, the changes made to the physical form of the development by the amended proposal cannot fairly be described as minor or imperceptible in terms of density and urban form. Furthermore, if the north west corner of the subject site is able to be developed under the amended plan, the urban form will be even more significantly altered. Professor Brannock observed that a resident of Villa World with views to the subject site would be likely to notice the visual impacts brought about by development of the north western corner and may be expected to object.

The proposed amended plan of development would, in my view, bring about material differences to the size, function and level of service of the proposed town centre in its original form. The amended proposal would hold new and different implications for the 39 centre hierarchy of the city of Gold Coast. Coomera is designated by the Albert Corridor

Development Control Plan and by the Draft Strategic Plan for Gold Coast City (1997) as the major centre within the Gold Coast/Brisbane corridor south of Beenleigh. The amended proposal would facilitate a regional centre at Helensvale and thus would be likely to prevent the development of the Coomera major regional centre through the removal of retail expenditure. Professor Kiel, whose evidence in this respect I accept, considers that this scenario would probably result in the establishment of smaller regional shopping centres at Helensvale and Coomera because there would be insufficient demand to allow one of these centres to be upgraded to major regional status. The amended proposal is likely to result in the duplication of facilities and reduced levels of service for residents of the broader northern Gold Coast area, and thus compromise the strategic intent of developing a major urban centre to service the Albert corridor. Thus, the amended proposal would prejudice the establishment of the intended centre hierarchy.

The original proposal included an extensive table of development for Precinct 2.

Development was to be generally in accordance with the form and layout shown on figure 4. That figure identifies the footprint of the development without identifying the particular uses for that building. The amended proposal makes the whole plan of development subject to the clarification that “development is to be generally in accordance with the plan of development”. Under the amended plan permitted uses are identified by the terms which are themselves to be applied, subject to that clarification.

Whatever may have been the intention of the appellant in this regard, the result has been to introduce a level of imprecision in construing the plan of development, which is 40 unfortunate and perhaps unnecessary. The amended plan of development confines the footprint of the building to certain uses while including other uses in the list of permitted uses. Some areas within Precinct 2 have no designated specific use. This raises an implication with respect to the north west corner of the site, which is highly visible to people using the Gold Coast Highway and the Pacific Motorway as well as to people travelling to Villa World. Mr Booth expressed the view that the amended proposal potentially creates a larger, and more commercially attractive development site at the north west corner than was the case under the original proposal, thereby increasing the prospects that this part of the site would later be developed for stand alone facilities in a way which would further compromise the development of a proper town centre. In particular, Mr Booth was critical of the failure of the amended plan to connect this part of the site with the proposed town centre. Professor Brannock considered that development of the north west part of the site would have important implications in relation to the built form, with more buildings being moved closer to the motorway with greater visual impact. In my view, the amended proposal does result in making it more difficult to design a town centre by creating such a large commercially desirable development site in the north west corner, the ultimate development form of which remains unknown.

The appellant submits that Mr Booth’s construction of the amended plan of development in relation to the north west corner fails to take account of a letter dated 22 April 1999 from Buckley Vann which forms part of the amended application. That letter is in the following terms:- 41

“This correspondence provides a summary of the amended plan of development.

Overview of Amended Proposal

The proposed Plan of Development has a reference description of WESTFIELD D & C J:\HE15012\2A\SK-0198\L1-0198D.DWG.

This plan provides further information about the intended range of uses, floor areas and building heights for development in Precincts 1 and 2.

In this plan:

• The proposed gross lettable area in Precinct 2 has been reduced from 69,700m² to 46,350m².

• The proposed range of permitted uses and the maximum gross lettable areas are identified for Precinct 1 and are outlined for sub-precincts Areas A (a) and (b), Areas B (a), (b) and (c) and Area C.

• Changes to the proposed built form are limited to the smaller retail component and the identification of the location of uses.

• The proposed artificial wetland is relocated to Precinct 2.

• Internal traffic and pedestrian circulation has changed to reflect the built form changes in Precincts 1 and 2; the relocation of the proposed artificial wetland and traffic planning external to the site.

Nature of Proposed Changes

• Precinct 1

The total number of proposed uses for Precinct 1 has been reduced and allocation of uses within the precinct is achieved by the introduction of sub-precincts Areas A, B and C.

Throughout Precinct 1, “display home”, “estate sales office”, “funeral parlour”, “general store”, “hospital”, “transport terminal” and “warehouse” have been deleted.

A schedule of maximum floor areas and building heights for Precinct 1 has been included.

Overall retail floor space has been reduced from 3,000m² to 1,500m² and a floor space limit has been placed on all uses in Precinct 1. 42

“Light industry” has been limited to one use and “public recreation” to six uses.

• Precinct 2

Floor space in the shopping centre component has been reduced:

Proposed Original Amendment

Retail Use Reduced Size Department Store 15,000m² 9,000m² Discount Department Store 16,000m² 6,500m² Supermarket 1 4,000m² 4,000m² Supermarket 2 4,000m² 4,000m² Shops 20,200m² 14,500m² Sub-Total 59,200m² 38,000m² Non-Retail Services Public Recreation,Commercial 5,200m² 4,750m² Premises, Office, Professional Offices, Medical Centre and Catering Business Cinemas 5,300m² 3,600m² Sub-Total 10,500m² 8,350m² TOTAL 69,700m² 46,350m²

The proposed artificial wetland is relocated in Precinct 2 and is proposed to operate and function as originally proposed. Accordingly “artificial wetland” has been included as a permitted use in the precinct.

Certain permitted uses of Precinct 2 “educational establishment”, “hotel”, “minor tourist facilities”, “passenger terminal”, “transport terminal”, “veterinary clinic” and “veterinary hospital” have been deleted.

“Public recreation” has been limited to two uses; “special uses” to one use.

The floor area on both levels of the shopping centre component is reduced.

• Precinct 3

Rezoning of the land in Precinct 3 is no longer sought. 43

• Traffic

Current Department of Main Roads planning for the Pacific Highway/Gold Coast Highway has resulted in a reconfiguration of the connection to the Pacific Highway/Gold Coast Highway interchange and to the Pacific Highway. Ingress to and egress from the site is to be from roads specified in the original application.

The traffic network shown on the Plan of Development and the links to the external road network are consistent with the latest DMR planning.”

A good deal of criticism has been leveled at the appellant’s amended application by the other parties in relation to this letter. Senior Counsel for the second and third respondents submits that while forming part of the amended application, the letter in no way alters the construction of the amended application adopted by Mr Booth. This submission, in my view, is correct primarily because the letter itself purports only to summarize the amended plan of development and not to modify it. Moreover, while the reference to the reduction in floor space assists the appellant’s construction, it can be understood merely as identifying that the footprint shown on the plan has reduced. The letter also states that certain permitted uses have been deleted from Precinct 2. The appellant contends that the list of deleted uses is incomplete because in substance other uses are deleted such as car repair station, accommodation premises and motel. It remains unclear, however, why these uses have not been deleted when the author of the letter specifically referred to those uses which were no longer permitted. In my opinion,

Mr Doyle S.C. is correct when he submits that the explanation must be that the letter merely summarizes the changes made to the form of the plan of development, and does not seek to modify its legal effect. In these circumstances, I do not accept that in construing the amended plan of development one should delete certain of the nominated 44 permitted uses, such as car repair station, motel and showroom (Precinct 2) so as to give no effect to such nominated permitted uses. I accept the correctness of the approach of

Mr Booth that the amended plan of development by reference to the floor plan, the legend and the maximum gross lettable areas, describes the uses and constraints for the shopping centre component, and that the other permittible uses identify uses for which land in

Precinct 2 may lawfully be developed if the plan is approved. If Mr Booth’s construction is correct, which in my view it is, there is a significant difference between the two plans which could not fairly be considered as minor.

The Artificial Wetland

The relocation of the artificial wetland to Precinct 2 adjacent to the shopping centre and car parks gives rise to an issue of safety. Generally speaking, the town planning and landscaping experts agree that the relocation does impose a safety risk, although there was some disagreement as to the magnitude of this risk. In my view, any degree of increase in the risk to public safety (even a minor one) should not be superficially accepted as being a change of a minor nature. It may be that with proper design the increased danger can be substantially, if not entirely, eliminated. Nevertheless, the safety concern is greater under the amended proposal than under the original. A second concern also arises from the relocation of the wetland involving the use of the wetland as a dumping ground for shopping trolleys. Again, the evidence before me does not suggest that it will be impossible to design the wetland so as to minimize this problem.

However, by moving the wetland under the amended plan of development to a position more adjacent to the proposed shopping centre and car park than was the case under the 45 original plan of development, the potential for the wetland to be used as a trolly dump has been, in my view, significantly increased. Members of the public may well wish to express their objection to this feature of the amended proposal and, in my view, they should have that opportunity.

Environmental Impact

Senior Counsel for the sixth respondent by election has in his written submissions criticized the appellant for seeking to circumvent the legislative procedures relating to the preparation of an Environmental Impact Statement by changing its original proposal and asking the Court for leave to amend in circumstances where, had the changes been put forward by way of a fresh application, that fresh application would have to be accompanied by a new Environmental Impact Statement. Mr Hinson S.C. submits that the only extant Environmental Impact Statement addresses a different proposal from that which the appellant now seeks to have approved, and is out of date. Mr Hinson S.C. contends that the appropriate course for the appellant to pursue is to make a new application rather than seek leave to amend.

It is the case that in March 1998 the appellant made a fresh application supported by a new Environmental Impact Statement (including a new Economic Impact Assessment) for a proposal virtually identical with the amended 1999 proposal the subject of this application. Thus, the consequence of denying the amendment sought by the appellant would not be to require the applicant to start again by formulating and lodging a fresh application. The appellant, in this case, has already done that more than twelve months 46 ago. As Senior Counsel for the third and fourth respondents by election points out in his written submissions, at any time the appellant could simply have progressed with a fresh application by giving public notice of it. Indeed, the appellant could have had a fresh decision (or deemed refusal) and pursued a merits appeal (if necessary) without having to confront the present amendment issue. Mr Doyle S.C. contends that even if the appellant did not wish to go so far, it could have at least publicly advertised the fresh application which would have provided the best evidence (either way) as to whether those amendments were in fact controversial and would provoke further objection. However, the appellant has chosen not to publicly advertise its fresh application. No evidence from the appellant has been forthcoming to explain its reason for taking this course. Mr

Doyle S.C. submits that the only apparent benefit to the appellant in adopting that course is to avoid public consideration of and objection to its amended proposal. Although I am not prepared to draw an adverse inference in this case from the appellant’s conduct, I do accept that if the appellant fails in its present application the consequence is that it will be required to advertise the application it made in March 1998.

I accept that an Environmental Impact Statement is a most important step in the decision making process as it is the document exhibited to the public upon which they form the view whether or not to object. If the Court is faced with a markedly different application which bears little resemblance to the Environmental Impact Statement, then the public participation inherent in the decision making process is diluted, and potential objectors may be deprived of the opportunity to participate (Golden v Coffs Harbour City Council

(1991) 72 LGRA 104 at 108 per Stein J). I recognise, however, that there is neither a 47 requirement (or a mechanism) for the provision of terms of reference for an

Environmental Impact Statement as part of an application to the Court to amend an application.

Section 4.15(3)

The provisions of section 4.15 (3) of the Act have previously been set out. They are not to be seen as an exhaustive identification of matters which are relevant to a consideration of whether a proposed modification is minor or otherwise. That decision can only be made by reference to the facts of any given case (see Rubyway Pty Ltd v Noosa Shire

Council [1998] QPELR 241 at 243 per Quirk DCJ). The provisions of sub section (3) can be used as a guide in deciding what is a material difference but the categories of cases in which there are material differences cannot be regarded as closed (Texbeam v

Brisbane City Council [1995] QPLR 108 at 110 per Helman DCJ, as he then was).

Section 4.15 (3) (a)

Under section 4.15 (3) (a) a proposed modification is of a minor nature if the proposed use to be made of the land the subject of the modification is not varied by the addition of different uses. The land in Precinct 3 under the amended proposal is to be deleted from the application and thus I accept that Precinct 3 cannot be described as land of which it can be postulated that there is a proposed use to be made to it. Accordingly, it is Precinct

1 and 2 which is the land the subject of the modification. Because the artificial wetland is, for the first time, to be a permitted use for its own right within Precinct 2, I accept that 48 there is a variation by the addition of a different use. Thus, in my view, the modification is not one that falls within sub section (3) (a).

Section 4.15 (3) (b)

Section 4.15 (3) (b) provides that a proposed modification is of a minor nature if the gross floor area of buildings or proposed buildings on the site is to be increased by less than

5%. Under the amended proposal it is clear that there is a substantial reduction in the gross floor area of proposed buildings, and this reduction cannot, in my view, be said to fall within this sub paragraph.

Section 4.15 (3) (c)

Section 4.15 (3) (c) provides that a proposed modification is of a minor nature if the number of storeys above ground level to be contained in any building or proposed building or part thereof on the site is not to be increased. I have indicated my acceptance of the construction for which Mr Booth contended in his evidence with respect to the north west area of Precinct 2. Under this construction of the amended application, the north west area may be developed in a way not permitted under the original plan and to that extent the provisions of sub paragraph (3) (c) are not satisfied. In relation to

Precinct 1 the amended application provides for subdivided forms of buildings previously proposed or a new building location in Precinct 1 and in this regard also, sub paragraph

(3) (c) is not satisfied. 49

Section 4.15 (3) (d), (e) and (4)

These provisions relate to the locations of proposed ingress to or egress from the site. I have already referred to this point when considering the evidence of the expert traffic engineers. In my view, there have been substantial alterations in the locations of the proposed ingress to or egress from the site and further I am satisfied that there have been changes which fall outside sub paragraph (3) (e). I have also previously indicated that the appellant is unable to take the benefit of sub section (4) because the approval of the

Chief Executive has not been obtained in respect of the alterations of the location of the proposed ingress and egress.

Section 4.15 (3) (f)

Section 4.15 (3) (f) provides that a proposed modification is of a minor nature if the amenity or likely future amenity of the locality would not, in the opinion of the local government, be adversely affected by the proposed modification. The concept of amenity is a broad one (see Broad v Brisbane City Council [1986] 2 QDR 317 at 326). In my view, the likely future amenity of the locality will be affected by the proposed modification, as I have previously indicated, in relation to the significantly reduced retail facility offered by the amended proposal and also by the additional safety and convenience concerns relating to the external traffic conditions which directly relate to the site access. 50

Conclusion

For the reasons expressed above I am unable to conclude that the amendments constitute minor modifications. I am satisfied that the application would result in a materially different proposal. I am further satisfied that the amended proposal would adversely affect some persons to a degree which would, if the circumstances allowed, cause such persons to object to the proposed modification. In my view, the right of members of the public to make their own submissions should be recognized by this Court in this case.

To deprive the public of the right to object would result in also depriving some members of the public of the statutory right to participate in an appeal should they so desire. I order that the appellant’s application be dismissed.