Insights

In brief

The case of Spraybuilt Investments (1) Pty Ltd v Brisbane City Council [2018] QPEC 3 concerned an application to the Planning and Environment Court seeking, among other things, an order that changes to a development application came within the definition of a minor change under section 350 of the now repealed Sustainable Planning Act 2009 (SPA). 
 
In considering whether the proposed changes would not result in a substantially different development, the Court referred to the following test in Northbrook v Noosa Shire Council [2015] QPELR 664 (at [4]):
"… 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. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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