The Applicant sought to make minor changes to a development approval given by the Planning and Environment Court
The Council refused a development application made by the Applicant on behalf of the landowner to override the Maroochy Plan 2000
. The Applicant appealed the refusal to the Planning and Environment Court and the Court ordered approval subject to conditions.
The Applicant later sought support from the Council and the Department of Infrastructure Local Government and Planning (DILGP) to make the following minor changes to the development approval:
- amalgamation of approved lots 1 and 2 into a single lot, such that the total number of lots was reduced from 4 to 3; and
- adjustments to lot sizes, drainage easements, corner truncations and internal road alignments.
Both the Council and DILGP gave pre-request responses confirming their support for the changes.
The Planning and Environment Court was bound to assess and decide the minor change application
The minor change application was made under section 78
of the Planning Act 2016
). The Court remained the assessment manager for the application in accordance with section 78(3)(b) of the Planning Act as it had given the relevant development approval.
The Court identified that it was bound to assess and decide the application in compliance with Chapter 3, Part 5, Subdivision 2 of the Planning Act, but was not otherwise bound by the process by virtue of section 78(4) of the Planning Act.
The proposed changes were determined not to result in substantially different development
The Court firstly assessed the proposed changes against the elements of section 78 of the Planning Act to determine whether they are appropriately characterised as minor.
The Court held that section 4 of the Development Assessment Rules is not an exhaustive list of changes that will result in substantially different development and will therefore not be a minor change.
A town planning expert engaged by the Applicant was of the opinion that the proposed changes would not create a new use, involve a new parcel of land, affect the operation of the proposed development, or significantly impact upon traffic flows or infrastructure.
The town planning expert relevantly identified that the key question was whether the proposed changes would dramatically change the development's bulk and scale. The town planning expert noted that combining two small lots into a single larger lot would potentially allow for a single larger building.
The Court found that the continuing effect of condition 21 of the approval, which required development to be consistent with approved plans, would prevent changes to the bulk and scale of the relevant buildings.
The Court otherwise accepted the town planning expert's evidence and determined that the proposed changes would not result in substantially different development.
The Court held that the proposed changes would not result in outcomes that would preclude a conclusion of a minor change
The Court identified that paragraph (ii) of the "minor change" definition required it to assume a hypothetical application was made for the entire development including the changes. The Court found that the proposed changes would not result in the inclusion of prohibited development, referral to new or additional referral agencies, or require public notification and were therefore appropriately categorised as being minor changes.
The Court proceeded to assess and decide the minor change application
The Court found that, after assessing the minor change application, section 81(4)
of the Planning Act required it to either approve the changes, with or without imposing development conditions, or to refuse the changes.
In deciding the application, the Court noted that section 81(2) of the Planning Act required it to consider the following:
"(a) the information the applicant included with the application; and
(c) any pre-request response notice or response notice given in relation to the change application; and
(da) all matters the responsible entity would or may assess against or have regard to, if the change application were a development application; and
(e) another matter that the responsible entity considers relevant.”
The Court identified that section 81(3) of the Planning Act relevantly provides as follows:
"For subsection (2)(d) and (da), the responsible entity –
(a) must assess against, or have regard to, the matters that applied when the development application was made; and
(b) may assess against, or have regard to, the matters that applied when the change application was made."
In accordance with section 81(3) of the Planning Act, the Court had regard to pre-request notices from the DILGP and the Council and placed significant weight on the fact that neither party opposed the proposed changes.
The Court ultimately approved the changes, citing the following conclusions from the Applicant's town planning expert:
- the development of three lots instead of four would not result in further conflict with the superseded Maroochy Plan 2000;
- the reduction in lot yield would not result in further impacts on matters addressed by the Maroochy Plan 2000 overlays and reconfiguring a lot code; and
- that the subject site was now zoned for industrial development under the current planning scheme, such that if a fresh application was made for the proposed three lot subdivision it would be code assessable and classed as a consistent use.
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 2020.