In brief: The case of King of Gifts (QLD) Pty Ltd & Anor v Redland City Council & Anor [2017] QPEC 15 concerned an appeal against the decision of the Council to refuse a development application for a development permit for a material change of use for a combined service station and drive through restaurant at Alexandra Hills, QLD.
The principal issue before the Court was whether changes to the proposed development made in the course of the appeal were 'minor changes' under section 350 of the Sustainable Planning Act 2009 (SPA). The Court found that a substantial change to the design of a proposed use, that was incidental to the proposed development, does not give rise to a substantially different application. Therefore the proposed change was considered to be a minor change.
In determining its decision to refuse the development application, the Council did not take into consideration the plans of the development as no formal application was made under section 351 of SPA
The original development application included a complying onsite sewerage treatment plant with an effluent discharge area of 2,100m2. The proposed onsite sewerage treatment plant was not a matter being contested in the appeal even though the proposed effluent discharge area did not comply with the irrigation requirements of the Department of Environment and Heritage Protection which was a concurrence agency for the development application.
To applicant to ensure compliance with the concurrence agency's requirements, proposed to replace the above ground effluent disposal area measuring 2,100m2 on the current plan with an effluent disposal area of 5,060m2 which utilised subsurface irrigation. The subsurface irrigation area was to remain in the same general area as that proposed in the current plan.
When assessing the proposed changes, the Council did not take into consideration the current plans, which were before the Council at the time of making its decision, as no formal application was made to Council pursuant to section 351 of SPA.
The Court noted that had the applicant made an application to the Court under section 440 SPA, the Court would have declared that the Council had to assess the current plans as part of the application. However as the applicant has failed to make the application, the Court could not require the Council to consider the current plans as part of the application. Therefore, the only issue before the Court was whether the proposed changes resulted in a substantially different application.
The Court found that when assessing what a substantially different development means, the Court is to ensure that the changes are not essential, material or important
In considering this issue, the Court relied on the observations found in
Jimboomba Lakes Pty Ltd v Logan City Council & Anor [2015] QPELR 1044,1049 where it was stated that
"it is not the role of the Court to undertake… an analysis of any change sought to be made to a development application… "The limitation of section 350 of SPA that the changes not result in a substantially different development means that the proposed changes must not be essential, material or important to the context of the development application".
The Court found that the proposed changes did not result in a substantially different application
The Court found that the only significant change in the application was that the onsite effluent disposal area of the proposed development had changed to reflect the irrigation requirements of the concurrence agency.
In assessing this change, the Court found that it was merely a design solution to an incidental aspect of the proposed development and did not give rise to a substantially different development.
The Court held that in assessing whether a change is a minor change, it is not necessary to look at the change in the context of the development application as a whole
As such, the Court found that although the change was a substantial change to the development application, the change did not result in a substantially different application.
The Court therefore concluded that the proposed amendments were a minor change under section 350 of SPA.
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