Questions of “minor change” are often tricky and turn on the particular facts and circumstances. However, in understanding the bounds of the test, it is sometimes useful to consider examples of what has been found by the Court to not be a “minor change”. This case is one of those examples.
The development had a long history. It involved a site in Bridgeman Downs, and a proposal for a mixed use development involving a service station, three food and drink outlets, a child care centre and residential development. The application had been refused by Council. Throughout the course of the appeal, orders for minor change had been sought four times.
The fourth change proposal involved a number of changes including:
- a reduction in the residential development component from 39 multiple dwellings to 10 detached dwellings, as well as changed to built form (a change proposed to protect the environmental values of the site);
- different access arrangements (six road connections were reduced to three, and an east-west connection road had been deleted and replaced with “common property” for the residential development);
- different engineering and stormwater arrangements (with the revised strategy relying on new land). The original scheme involved detention, ultimately discharged overland to a drainage reserve in the north-east of the site. It was replaced by a piped solution to land in the south-east, which involved changes to the cut and fill works;
- changes to commercial uses (removal of one of the three food and drink outlets proposed);
- reduction in child care places from 110 to 100 and an altered building design, landscaping and car parking arrangements;
- the inclusion of acoustic barriers ranging in height from 2m to 4m;
- the removal of staging.
Several, but not all of the changes had been considered by the Court previously. However, there were additional changes that had not been the subject of previous orders. The Court acknowledged that there were ameliorative aspects of the changes – the reduction in the development footprint was made in deference to ecological constraints, and the changes to the stormwater management considerations were intended to respond to Council’s reasons for refusal. However, taken as a whole, the Court held the changes resulted in substantially different development.
The Court observed that:
- the changes to the residential component meant it was “unrecognisable”. Where the development had previously been balanced between residential and no-residential uses, this was no longer the case;
- the change to staging also materially altered the development. It became a development predominantly of a commercial nature, to be delivered in one stage;
- the loss of the east west connection road affected the structure planning context and removed a beneficial component of the development;
- the network of acoustic barriers had the potential to introduce new impacts or, at least exacerbate visual impacts for nearby uses;
- the changed siting of the uses (with the child care centre now adjoining residential development) meant there was a non-residential use being located next to, and sharing an interface with a residential use;
- the changed traffic arrangements and site configuration meant the child care centre adjoining a residential area.
The Court was particularly concerned about the changes to visual and traffic impacts, which are matters the Court considered had not been adequately addressed in the material supporting the minor change application. For example, there was no traffic analysis about changes arising from the loss of staging, or changes to traffic flow resulting from the changes access arrangements and loss of the connection road.
The Council had also contended there were strong discretionary factors militating against making the minor change orders. The three most important being that:
- The appellant had unreasonably delayed in making the minor change application.
- The appellant failed to properly identify the true scope of changes when previous minor change orders were obtained.
- The refused plans were publicly notified in 2020, and there was considerable interest in and opposition to the development.
While it was not necessary for the Court to determine the discretionary factors (given it had determined the changes were not minor) the Court was satisfied there was considerable force in Council’s submissions.
The minor change application was dismissed.