A change application for a development approval was refused by the Planning and Environment Court as the proposed change would likely result in a substantially different development

In brief

The case of Burnett Street Nominees Pty Ltd v Sunshine Coast Regional Council [2019] QPEC 35 concerned a change application to a development approval to the Planning and Environment Court (Court). 

In 2014, the Court originally approved a development application for a development permit for a material change of use for a shopping complex and multiple dwelling units, after the decision by the Sunshine Coast Regional Council (Council) to approve the development application was appealed. 

After the Court's 2014 approval, the Court had approved a further permissible change in relation to the development approval in 2016, and had granted an extension of the currency period for the development approval in 2018. 

The Applicant applied to the Court under section 78(1) of the Planning Act 2016 (PA) to make a change application to the development approval. In order for the Court to determine whether the change application should be granted, it had to consider the following: 

• Was the proposed change a minor change to the development approval?

• Would the proposed change result in a substantially different development?

The Court held that the motivation behind the Applicant's change application to stage the development approval was to construct the shopping centre without the requirement of constructing the dwelling units. The Court therefore refused the change application due to the evident risk that the development approval would only be partially complied with, and therefore would result in a substantially different development. 

Was the proposed change a minor change to the development approval?

The Applicant made the change application on the basis of seeking a minor change to the development approval, which also had the support of the Council. The Applicant sought to change the development approval in order to stage the development so that it could construct the shopping centre first (stage one) and then construct the dwelling units (stage two).

The Court noted that in order to grant the change application, the Court must be satisfied that the proposed change of the development approval was a minor change. Schedule 2 of the PA relevantly provides as follows: 

"minor change means a change that— ...

…

(b) for a development approval—

(i) would not result in substantially different development; and

(ii) if a development application for the development, including the change, were made when the change application is made would not cause—

(A) the inclusion of prohibited development in the application; or

(B) referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or

(C) referral to extra referral agencies, other than to the chief executive; or

(D) a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or

(E) public notification if public notification was not required for the development application."

In relation to paragraph (b)(ii), the Court accepted that the proposed change to the development approval did not engage any of the relevant criteria. The Court then considered whether the proposed change would result in a substantially different development. 

Would the proposed change result in a substantially different development?

The Applicant submitted that although the proposed change to stage the development could introduce the potential of a partial delivery of the development, it should be considered as an irrelevant factor. The Applicant relied upon the statements made by the town planner who noted that the proposed change of staging the development of the shopping centre and the dwelling units would better facilitate the proposed development of the land. 

The Applicant relied on Schedule 1, section 4(d) of the Development Assessment Rules, which states that a substantially different development may be a change that “change[s] the ability of the proposed development to operate as intended”. The Applicant submitted that the intention of the development was to deliver the development approval in two stages, therefore a staged development would not change the ability of the development to operate as intended. 

The Court noted that the main issue with the Applicant’s submission was that, if accepted, it could raise the prospect that only part of the proposed development would eventuate and therefore be substantially different to the development approval. The Court noted that the prospect of a partial development was heightened due to the following factors: 

• the history of the development approval through the Court; 

• the evidence given by the town planner who expressly stated “development of the land is not able to commence” and that was “due to difficulties experienced by the Applicant securing contracts for the sale of the proposed residential units”; 

• the only evidence submitted to the Court was from the Applicant’s town planner, where particular reliance was placed on the town planner's statements as to the advantages of the proposal; and

• the conditions set by the Council contemplated the prospect that stage two of the development would not commence, as condition 2B provided for the lapsing of the uncompleted aspects of the development and condition 2C provided for landscaping conditions in relation to the stage two site if it was not developed.

Court determined that the proposed change would result in a substantially different development

The Court determined that the motivation behind the change application was to construct the shopping centre without the units, as the developer was not prepared to commence the development without being satisfied of securing the financial ability to complete it.  

The Court further determined that the conditions set by the Council in support of the change application by the Applicant served largely to demonstrate that there was a prospect that only part of the development approval would occur.

The Court held that the Applicant failed to establish, on the balance of probabilities, that the proposed change to the development approval would not result in a substantially different development. 

Conclusion

The Court therefore held that the jurisdiction of the Court under section 78A(2)(a) of the PA was not engaged, and refused the application for a minor change to the development approval as the proposed change would result in a substantially different development and thus was not a minor change.