Planning and Environment Court grants two applications for a minor change in relation to two proposed developments as the changes would not result in a substantially different development

In brief

The case of Dickson Properties Pty Ltd v Brisbane City Council & Others [2019] QPEC 29 (Dickson Properties) and Maroochydore Sands Pty Ltd v Sunshine Coast Regional Council & Ors [2019] QPEC 30 (Maroochydore Sands) both concerned minor change applications to the Planning and Environment Court (Court).

In both proceedings the respective Applicants sought orders from the Court that the proposed changes to the relevant developments were minor changes under the Sustainable Planning Act 2009 (SPA).

In order to determine whether the respective applications were a minor change, the Court considered the following issues: 

• Would the changes require an application for the developments to be referred to any additional referral agencies?

• Would the changes to the proposed developments change the proposed developments' level of assessment to impact assessable? 

• Would the changes result in substantially different developments? 

The Court held that the proposed changes to both developments were minor changes as they satisfied section 350(1)(d) of the SPA. 

Background

The Dickson Properties proceeding concerned a change to a proposed residential development. There were a number of changes in relation to the proposed development, however, the most contentious change which was of concern to the first Co-Respondent, was the addition of an access easement over an internal road of the residential development, which was to provide a higher level of flood immunity than what was available with the original access easement which connected to a public road. 

The Maroochydore Sands proceeding concerned a change to a proposed development for a quarry. The proposed changes to the proposed development concerned the haulage route and the reduction of the quarry's annual extraction limit.

The Court considered section 350(1)(d) of the SPA in respect of both applications, which relevantly provides as follows: 

"(1) A minor change in relation to an application, is any of the following changes to the application—

…

(d) a change that—

(i) does not result in a substantially different development; and

(ii) does not require the application to be referred to any additional referral agencies; and

(iii) does not change the type of development approval sought; and

(iv) does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment." 

Would the changes require an application for the development to be referred to additional referral agencies? 

The Court held that the changes in relation to both proceedings would not require referral to additional referral agencies. The Court noted that both of the proposed uses remain the same, and therefore the Court was satisfied that no additional referral agencies were required as a consequence of the intended changes to each proposed development. 

Would the changes to the proposed developments change their level of assessment to impact assessable? 

It was noted by the Court that each of the proposed developments did not require impact assessment. The Court held that the proposed changes to each proposed development would not change their proposed uses and therefore the nature of the development approval sought. The Court therefore held that the proposed changes did not change the level of assessment of each proposed development to impact assessment. 

Would the changes result in substantially different developments?

In both proceedings, the Court stated that the main issue to be determined was whether the proposed changes would cause the proposed developments to be substantially different from the original development applications. 

Dickson Properties

The first Co-Respondent in the Dickson Properties proceeding submitted that the proposed changes to the proposed development were not minor changes in respect of section 350 of the SPA, as they changed the ability of the proposed development to operate as originally intended, removed a component of the development which was integral to its operation, and introduced new impacts and increased the severity of known impacts. 

As the subject land was prone to flooding, a number of expert consultants conducted an analysis of the proposed changes. It was concluded in the joint expert report that the proposed change of an access easement over the internal road of the residential development would provide the safest outcome for the residents of the proposed development in the event of a flood. 

The Court was satisfied from the evidence of the expert consultants that the proposed change would result in a safer access route in the event of a flood compared to the original access easement. The Court therefore held that the proposed changes to the proposed development were a minor change as they did not result in a substantially different development.

Maroochydore Sands

In order for the Court to determine whether the proposed minor changes would cause the proposed development to be substantially different, the Court considered the following questions from the Statutory Guidelines dated 11 December 2009: 

1. Would it involve a new use with different or additional impacts? 

2. Would it result in the application involving a new parcel of land? 

3. Would it dramatically change the built form in terms of scale, bulk and appearance? 

4. Would the change involve significant impacts on traffic flow and the traffic network to such an extent to have serious ramifications? 

The Court held that the proposed changes did not contravene the first three questions. In relation to the fourth question, the Court noted that the proposed change involved a change to the haulage route from the quarry and therefore would have some impact to traffic flow and the traffic network. 

The Applicant in this case relied on a number of experts who specialised in geology, soils and groundwater, hydraulics/water resources, and traffic. The experts for the Applicant all came to the conclusion that the proposed change would not change the ability of the proposed development to operate as intended. It was further noted by the experts for the Applicant that the proposed changes would not cause any adverse impacts in relation to any of the areas of expertise in which each expert specialised. 

The Court was satisfied with the conclusions by the Applicant's experts and held that the changes were minor changes for the purposes of the SPA.

Conclusion

The Court held, in both proceedings, that the proposed changes to each proposed development were minor changes for the purposes of the SPA.