In brief

The case of Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8 concerned a change application for a minor change (Change Application) to a development permit for a material change of use comprising a dwelling component (a manager's unit) and a motel component (Development Permit) made to the Planning and Environment Court (Court) as the responsible entity for the Change Application. 

The Noosa Shire Council (Council) gave a response notice under section 80(4) of the Planning Act 2016 (Planning Act) objecting to the Change Application for the following reasons:

  • the Change Application was not for a minor change; 

  • the Development Permit would not have been agreed to between the parties without the final staging of the development, which the Change Application sought to alter; 

  • the proposed change was in conflict with the Noosa Plan and the Council's draft planning scheme, the New Noosa Plan

The Court held that the Change Application was not for a minor change as it would result in substantially different development, and dismissed the Change Application. 

Background

At the time the Council initially refused the relevant development application, the proposed staging was in accord with what was sought by the Change Application. The Applicant appealed the Council's decision to refuse the relevant development application. The appeal was resolved on the basis that the Court approved the Development Permit, which relevantly authorises the construction of the following: 

  • the whole development without staging;

  • the motel component followed by the dwelling component; or

  • the motel component without constructing the dwelling component. 

In consenting to the resolution of the appeal on the terms of the Development Permit, the Council was seeking to avoid a situation where the dwelling component is built and the motel component is not built. 

Two months after the appeal was resolved, the Applicant made the Change Application which proposed to reverse the order of the approved stages. 

Minor change provisions 

Schedule 2 of the Planning Act defines a minor change to mean a change that, 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, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or 

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

The Court was satisfied that the Change Application did not cause any of the things listed in item (ii) of the definition, and therefore focused its attention on whether the Change Application would result in substantially different development. 

An outcome not provided in the Development Permit is substantially different development

The Court noted that deciding whether a change application will result in something substantially different where development is staged is more complex than with non-staged development because the possibility arises that some, but not all, stages of the development will be completed. 

The Court found the motel component was an integral component of the Development Permit, and that should the Change Application be allowed and the Applicant only construct the dwelling component, the development would be substantially different. 

In coming to this conclusion, the Court was not satisfied that the Applicant's intentions at the time represented a sufficiently reliable basis to decide, on the balance of probabilities, that both the dwelling and motel components would be developed if the Change Application was approved. 

The Court dismissed the Change Application because the Change Application did not satisfy section 78A(2)(a) of the Planning Act, as the Change Application would result in substantially different development and was therefore not for a minor change. 

Conclusion

As the Applicant did not establish that the change would not result in substantially different development than allowed under the Development Permit, the Change Application was not for a minor change and the Court dismissed the application. 

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.

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