In brief
"… determining whether or not the proposed development is a substantially different development requires a consideration of the definition of “substantial” which is defined … as, inter alia, “essential, material or important."
The Court applied the test to the proposed changes from the perspective of the architectural presentation and noted as follows:
(a) there had been a significant reduction in gross floor area, with the proposed number of residential units reduced from 37 to seven;
(b) there had been a material reduction in the proposed building height from five storeys to three storeys with a partial fourth storey; and
(c) there had been a significant consequential reduction in bulk.
Importantly, the Court also observed that the combination of these changes had resulted in the proposed development changing from "
a bulky extremely modern looking five storey building with futuristic design elements to a much less bulky series of separated buildings which evoke traditional character elements such as predominantly gabled rooves" (at [
6]).
To this end, the Court held that on any objective assessment, the changes to the proposed development represented a completely different architectural treatment and were so extreme from a design perspective that what was now proposed was so different that it was essentially and materially different.
The Court concluded that the changes to the proposed development clearly represented a substantially different development under section 350 of the SPA.