The case of Ausco Modular Pty Ltd v Western Downs Regional Council [2025] QPEC 1 concerned an application by Ausco Modular Pty Ltd (Applicant) to the Planning and Environment Court of Queensland (Court) to change (Change Application) a development permit for a material change of use for an undefined use (non-resident workforce accommodation) (Development Approval) to introduce staging. The Development Approval attaches to land at 184 Zeller Street, Chinchilla (Subject Site).

The Western Downs Regional Council (Council) did not oppose the Change Application (at [2]). However, the Court determined that the introduction of staging to the Development Approval does not constitute a minor change in this case because there was no assurance that the proposed later stages will proceed and if a later stage did not proceed the use of the Subject Site would not operate as intended thereby resulting in substantially different development (see [47] and [48]).

The Court dismissed the Change Application on the basis that the change sought is not a minor change (at [56]).

The Applicant operates Stayover Chinchilla on the Subject Site. The Development Approval authorises development comprising 1,000 rooms, six laundry units, and 11 combined laundry and storeroom units to be delivered in one stage (see [1] and [3]).

The Applicant sought the following changes to the Development Approval:

• The introduction of the following stages (at [4]):
  
  "(a)    Stage One: 1000 rooms, six laundry units and 11 combined laundry and storeroom units (reflecting what presently exists on the [Subject Site]);
  
  (b)    Stage Two: 856 rooms, three laundry units and 11 combined laundry and storeroom units (which involves the removal of 144 rooms – but not the infrastructure supporting them – on a temporary basis); and
  
  (c)    Stage Three: 1000 rooms, six laundry units and 11 combined laundry and storeroom units (thereby, returning the full complement of 1,000 rooms as approved)."

• The insertion of a condition which makes it clear that the conditions apply to each stage of the development unless otherwise specified.

• The insertion of conditions that apply to Stage 2 and Stage 3 only which require evidence of plumbing and building approvals and inspections associated with the removal and re-introduction of rooms.

In this case, whether the proposed changes to the Development Approval constitute a "minor change" as defined in schedule 2 (Dictionary) of the Planning Act 2016 (Qld) (Planning Act) depends on whether the proposed changes would result in substantially different development (see [9] to [13]). The Development Assessment Rules (DA Rules) referred to in section 68 of the Planning Act provide guidance in respect of what may result in substantially different development, but the question is one of fact and degree to be considered broadly and fairly in the circumstances of each case (see [14] and [15]). Whilst there is no legislative requirement to consider the DA Rules, the Court taking a purposive approach considered it appropriate to have regard to them (at [15]).

The Court referred to the case of Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8; [2020] QPELR 1113 and agreed, in particular, with the following observations of His Honour Judge Rackemann at 116-7 (at [21]):

"[16]    A comparison between pre and post change development scenarios often involves considering the whole of the development authorised by the existing approval and proposed to be authorised by the changed approval. That is because approvals will often be for a particular form of development to occur as a whole at the one time and will not authorise development of parts of a proposal at different times, in a piecemeal way. Where however, approvals permit development to occur in stages, the comparison becomes more complex, because such approvals may generally be acted upon to carry out:

(i)    the whole of the development at the one time;

(ii)     different parts of the development in different stages at different times, or

(iii)    one or some stages of development irrespective of whether the approval is acted upon to develop any subsequent stages.

[17]    Unsurprisingly, given the third of those possibilities, approvals which permit development to occur in stages often require important components, works or other matters to be incorporated into, or provided prior to, or in conjunction with, the first stage. That ensures that those things are provided if the approval is acted upon..."

The Court also identified that in the case of Ausco Modular Pty Ltd v Western Downs Regional Council & Anor [2017] QPEC 58; [2018] QPELR 80 the need for 1,000 rooms to avoid adverse effects on the community from unanswered demand was an important consideration in favour of approval. Thus, the reinstatement of the rooms to 1,000 as part of proposed stage 3 is critical to the accommodation operating as intended (at [46]).

The Court held that the evidence relied upon by the Applicant neither addressed the valid concerns in respect of introducing staging to the Development Approval nor considered the operational consequences should stage 3 not proceed (see [22] and [47]).

The Court therefore found that the Applicant had not demonstrated that the proposed changes do not result in substantially different development (at [53]).

The Court dismissed the Change Application on the basis that the change sought did not constitute a minor change (at [56]).

The Court's decision highlights that the operational consequences of a change to a development approval are relevant to whether a change is minor or not. Here, the operational consequence was that the final stage may not be delivered meaning that the development may not operate as intended, being as a 1,000 room non-resident workforce accommodation facility.