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that changes to a development application came within the definition of a minor change under section 350 of the now repealed Sustainable Planning Act 2009 (SPA).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 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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