In brief

The case of Hobson Constructions (Qld) v Chief Executive Administering the Planning Act & Anor [2018] QPEC 57 concerned an application to the Planning and Environment Court by the Applicant to make changes to referral agency conditions attaching to the development approval, which allowed a development permit for a material change of use of premises. The related decision to the current proceeding, Hobson Constructions (Qld) v Chief Executive Administering the Planning Act & Anor [2018] QPEC 56, held that the responsible entity that was to decide the minor change application was the Court under section 78(3)(b) of the Planning Act 2016 (PA), as the Court granted the original approval for the development application and there were properly made submissions. 

In order to determine whether to allow the minor change to the development conditions which attached to the development approval, the Court had to consider the following: 

  • Did the Applicant have the owners' written consent under section 79(1A) of the PA?

  • Did the proposed changes to the conditions of the development approval amount to a minor change?

The Court held that the proposed changes to the conditions originally imposed by the referral agency did amount to a minor change as the changes would not result in a substantially different development.

Did the Applicant have the owners' written consent under section 79(1A) of the PA? 

The Court noted that the Applicant’s material related to issues under section 79(1A) of the PA, which relevantly provides as follows: 

(1A) Also, a change application must be accompanied by the written consent of the owner of the premises the subject of the application to the extent—

(a) the applicant is not the owner; and

(b) the application is in relation to—

(i) a material change of use of premises or reconfiguring a lot; or

(ii) works on premises that are below high-water mark and outside a canal; and

(c) the premises are not excluded premises.

The Court noted that the premises could be considered as an excluded premises. An excluded premises is defined under Schedule 2 of the PA as follows: 

excluded premises means—

...

(b) for a change application or extension application—premises in relation to which 1 or more of the following apply for the application—

...

(iii) the responsible entity or assessment manager considers the application does not materially affect the premises and that because of the number of owners, it is impracticable to get their consent.

Example of when owners’ consent may be impracticable—

Since the development approval was given, the premises have been subdivided and now has many owners.

The Court noted that the consent of the owners of the residential lots that were created and sold prior to the date of the application has not been obtained, as the minor change application did not materially affect the 120 premises and would have been impracticable. Due to this, the Court held that the premises is an excluded premises under section 79(1A) of the PA as it fulfills subsection (b)(iii) of the definition of excluded premises under the PA, and therefore the consent of the owners was not required. 

Did the proposed changes to the conditions of the development approval amount to a minor change? 

The Court firstly referred to the definition of a minor change under Schedule 2 of the PA, which relevantly provides as follows: 

minor change means a change that—

...

(b) for a development approval—

(i) would not result in substantially different development; and

(ii) if a development application for the development, including the change, were made when the change application is made would not cause—

(A) the inclusion of prohibited development in the application; or

(B) referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or

(C) referral to extra referral agencies, other than to the chief executive; or

(D) a referral agency to assess the application against, or have regard to, matters prescribed by regulation under section 55(2), other than matters the referral agency must have assessed the application against, or have had regard to, when the application was made; or

(E) public notification if public notification was not required for the development application.

The Court assessed whether the proposed changes to the conditions of the development approval were a minor change by reference to Schedule 1, section 4 of the Development Assessment Rules (DA Rules), which describes the meaning of a “substantially different development”. 

The Court noted that the proposed changes did not seek to change the development, but rather the conditions which were originally imposed by the Department of Transport and Main Roads (DTMR). The Applicant sought to remove the following conditions imposed by the DTMR; the construction of an additional lane upon a road located near the development; the construction of a road near the development; the upgrade of intersections near the development; and duplication of a road in both directions near the development. 

The Applicant supported the minor change application with a traffic impact assessment report, which had updated information concerning the traffic impacts and road upgrades required and also other recommendations. Further, after a joint meeting of experts, the joint expert report recommended in the position statement that the additional overtaking lanes were not reasonably required. 

The Court determined that the proposed changes did not result in a substantially different development with reference to Schedule 1, section 4 of the DA Rules for the following reasons: 

  • they did not change the ability of the development to operate as intended; 

  • they did not remove any integral components to the operation of the development; 

  • the removal would not significantly impact traffic flow or the traffic network;

  • they would not introduce new impacts or worsen the severity of known impacts; and 

  • they would not impact on infrastructure provisions. 

The Court therefore held that the proposed changes to the conditions attached to the development approval fall within the definition of a minor change under Schedule 2 of the PA. 

Conclusion

The Court held that the Applicant did not require the owners' consent under section 79(1A) of the PA as it is an excluded premises as it was impracticable to obtain the consent of the owners of the 120 premises located on the subject land, and the minor change application did not materially impact the owners. 

The Court further held that the proposed changes to the conditions of the development approval by the DTMR did amount to a minor change as stated in Schedule 2 of the PA as they would not cause a substantially different development. 

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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