In brief: The case of Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council [2017] QPEC 19 concerned an appeal against a decision approving an application for changes to a development approval for premises at 98-196 Guanaba Road, Tambourine Mountain.

The change application proposed a number of design changes to the approved development, but only four changes were contentious:
  • reduction in the number of camping sites
  • removal of the vehicular access to the camping sites
  • restriction of the campers to those who were attendees of the mountain bike clinics
  • removal of the proposed caretaker who was to be replaced with a clinic coach who would camp with the attendees
The Tamborine Mountain Association alleged that if the change application was accepted, the changes would result in a substantially different development to that which was originally proposed and would change the demographics of the area.

The Court held that because the change application only resulted in a reduction in intensity of the proposed development, without more, the proposed changes did not result in a substantially different application and therefore the proposed changes are a minor changes under section 350 Sustainable Planning Act 2009 (SPA).

The Court stated that the relevant test in assessing whether a change is a minor change is to look at whether the change will result in a substantially different development rather than merely resulting in some substantially different development.

The Court observed that when assessing whether a material change is a minor change under section 350 SPA, the relevant test to be applied is that which is found in the decision of Kings of Gifts (Qld) Pty Ltd & Anor v Redland City Council & Anor [2017] QPEC 17. In this case it was held that the relevant test pursuant to section 350 of SPA "is that the change not result in a substantially different development" not merely that it not result in some substantially different development'.

The Court found that the expert opinion regarding the change in demographics was not qualified

The argument raised by the Tamborine Mountain Association that the change would result in a change to the demographics of the area was solely based upon the expert opinion of the Tamborine Mountain Associations' town planner.

The Court found that the expert was expressing an opinion outside of the scope of their area of expertise as they did not have the relevant sociology qualifications required to analyse the demographics of the area. Therefore, the evidence that the changes to the proposed development would change the demographics of the area was not accepted.

The Court found that the proposed changes did not result in a substantially different development

The Court found that the changes which reduced the intensity of the proposed development could not be solely relied on to show that the changes would result in a substantially different application. Without more, the proposed changes did not result in a substantially different development. Therefore the proposed changes are a minor change as defined under section 350 SPA.
 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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