Variation request held to form "part of" a development application by the Planning and Environment Court of Queensland

In brief

The case of Yaralla Sports Club Inc v Gladstone Regional Council [2021] QPEC 74 concerned an application in the Planning and Environment Court of Queensland (Court) for a minor change to a development application lodged with the Gladstone Regional Council (Council).

The development application relevantly sought a development permit for a material change of use for a theatre (MCU Application), a preliminary approval for a material change of use for the future expansion of an existing short-term accommodation (Preliminary Approval Application), and a request to vary the effect of the Gladstone Regional Council Planning Scheme (version 2) (Planning Scheme) in respect of the levels of assessment and assessment benchmarks for the short-term accommodation use (Variation Request).

The minor change application seeks to remove variations to the Planning Scheme that would trigger impact assessment for a short-term accommodation which exceeds a building height of 12 metres, to change the assessment benchmarks for development which is code assessment, and to include a master plan and site plan.

The substantive appeal was against the Council's refusal of part of the development application, being the Preliminary Approval Application which includes the Variation Request, in which the Applicant seeks that the Preliminary Approval Application be approved subject to reasonable and relevant conditions.

Section 46(3) of the Planning and Environment Court Act 2016 (Qld) (PECA) relevantly states that "The P&E Court can not consider a change to the development application unless the change is only for a minor change". Where a change to a development application is for a minor change, the Court has a discretion to consider it (at [18]).

The Court relevantly considered the following issues:

1. First threshold issue – Whether the Variation Request was appropriately made as part of the Preliminary Approval Application, because a variation request cannot be made in isolation (see [4] and section 50(3) of the Planning Act 2016 (Qld) (Planning Act)).

2. Second threshold issue – Whether the Court can consider a change to a variation request.

3. Substantive issue – Whether the change to the Variation Request will result in substantially different development.

In respect of the first threshold issue the Court held that despite the "inelegant" drafting of the development application material, the material considered as a whole and the Council's confirmation notice indicated that the Preliminary Approval Application includes the Variation Request (see [5] to [9]).

In respect of the second threshold issue the Court held, having regard to the meaning of "development application" in section 46(3) of the PECA and the interpretation and construction of the relevant provisions of the Planning Act, that a variation request and a variation approval are "part of" a development application and development approval respectively (see [2] and [13]). Thus, the Court in considering a change to a development application may consider a change to a variation request which forms part of an application for a preliminary approval.

In respect of the substantive issue, the Court held that the change to the Variation Request would give greater certainty as to what is intended for the future short-term accommodation and decreases, rather than increases, the scope of the proposed development (see [22] to [23] and [25] to [26]).

Thus, the Court held that the change to the development application would not result in substantially different development and exercised its discretion in favour of the appeal proceeding on the basis of the changed development application (at [27]).

First threshold issue – Preliminary Approval Application includes the Variation Request

The Court was satisfied based on the following that the development application was made for the Preliminary Approval Application which included the Variation Request:

• The development application indicated that "a preliminary approval that includes a variation approval" was sought (at [6]) and the supporting planning assessment report included information relating to the Variation Request being for future short-term accommodation use.

• The confirmation notice given by the Council included details of the development application, which relevantly included the Preliminary Approval Application and the MCU Application (at [7]).

Second threshold issue – Variation request forms part of a development application

The term "development application" in section 46(3) and schedule 1 of the PECA is relevantly defined by reference to schedule 2 of the Planning Act, which means "an application for a development approval".

The term "development approval" is defined in section 49(1) of the Planning Act to include a "preliminary approval", "a development permit", or a combination of both.

The Court held that the following were consistent with a finding that a variation request forms part of a development application and that a variation approval forms part of a development approval, such that under section 46(3) of the PECA the Court cannot consider a change to a variation request unless it is for a minor change:

• The meaning of the terms "variation request" and "variation approval" under schedule 2 of the Planning Act state that a variation request and variation approval are "part of" a development application for a preliminary approval and a preliminary approval respectively (see [11] to [12]).

• Section 50(3) of the Planning Act states that "A development application for a preliminary approval may also include a variation request" and section 53(1)(b) of the Planning Act requires an applicant to give notice of a development application if "the application includes a variation request" (at [13]).

• Section 61(1) of the Planning Act states "This section applies to a part of a properly made application that is a variation request".

• An interpretation which treats a variation request as distinct from a development application would have consequences for the appeal rights of applicants.

Substantive issue – Change to the Variation Request is for a minor change

The Court held that the change to the Variation Request to confine the future short-term accommodation that would be code assessable to the existing building footprint, 94 units, and a maximum of 12 metres in height, rather than only by reference to height as originally proposed, and the inclusion of a master plan and site plan, gives greater certainty as to what is intended for future development and does not result in substantially different development (see [22] and [23]).

The Court held that a change to remove a vehicle parking rate schedule and a reference to "any applicable overlay code" was of no practical effect, because the vehicle parking rate schedule was called up in the Development Design Code in the Planning Scheme which is an assessment benchmark and evidence before the Court demonstrated that the applicable overlay codes did not include any practical requirements relating to short-term accommodation (at [24]).

Another change to replace the Mixed Use Zone Code of the Planning Scheme with the Yaralla Sport and Recreation Code was also held not to result in substantially different development because the Yaralla Sport and Recreation Code was largely the same as the Mixed Use Zone Code but omitted parts that are not relevant or not applicable to the proposed development (at [25]).

Conclusion 

The Court held that the change to the Variation Request was for a minor change and that the matter proceed on the basis of the changed proposal. 

The Court later gave judgment which allowed the part of the development application that was refused by the Council subject to conditions.