A recent decision of the Planning and Environment Court addresses an interesting question – can the Court approve a change to a development approval where that change was not sought in the original change application? As is revealed by the reasoning in Ellendale (Qld) Pty Ltd LFT Ellendale (Qld) Unit Trust v Brisbane City Council [2020] QPEC 68, the answer to that question is a qualified yes.
Applications to change development approvals
The Planning Act 2016 (PA) prescribes a mechanism to change an extant development approval. In Ellendale, the applicant sought to change a development approval for centre activities (shop, medical centre food and drink outlet). The approval included a condition requiring deep planting and landscaping within the carpark, resulting in the reduction of four carparks overall. Ellendale lodged a change application with the Council to remove the requirement for landscaping within the carpark, reinstating the four carparks and provide compensatory landscaping.
The change application was refused by the Council. On appeal the parties agreed that the four carparks could be reinstated on the footing that compensatory landscaping was provided in lieu. However, the compensatory landscaping agreed between the parties differed to that proposed in the change application. This raised the central question – did the court have power to approve all of the agreed changes, or was it was limited to approving the specific changes identified in the change application?
Approving a change application subject to conditions
The Court held that it could approve a change which was not sought in a change application, provided the change was the product of the exercise of the conditions power conferred in section 81A(2) of the PA.
Section 81A(2) of the PA provides as follows:
“After assessing the change application under section 81, the responsible entity must decide to –
(a) make the change, with or without imposing or amending development conditions in relation to the change; or
(b) refuse to make the change.”
This provision provides a responsible entity with three decision outcomes. One of those outcomes is to decide to make the change subject to conditions (new or amended). The power to make the change subject to conditions is to be read in conjunction with the words “in relation to the change”. The Court said this phrase calls for the demonstration of a connection (either direct or indirect) between the exercise of the conditions power and the change approved by the responsible entity1.
In Ellendale, the Court was satisfied that imposing a condition which achieved an amended landscaping outcome (and not the original landscaping outcome proposed under the change application) had a ‘direct connection’ with the change that was being approved (namely, approving the reinstatement of four carparks). Accordingly, the Court could make a decision that was within the bounds of the power conferred by section 81A(2) of the PA.
Whether the condition is “in relation to the change”
What Ellendale demonstrates is a responsible entity (typically a local government or the Court) can approve a change to a development approval that differs from the change originally sought in the change application, provided the change is the product of the exercise of the conditions power. The key limitation on this power2, and where debate is likely to arise in the future, is the requirement to demonstrate a connection between the condition and the change approved. It needs to be a condition “in relation to the change”.
The Court has said that it will ultimately turn on the facts and circumstances of each case, however, “given the phrase is an expression of broad import, the identification of the necessary connection should not be approached narrowly, or in a restrictive way"3. A ‘connection’ can be both direct or indirect between the change and the condition imposed (or the condition amended).
In Ellendale, the condition which provided for amended compensatory landscaping was found to have a direct connection with the change approved (reinstatement of four carparks). The ‘connection’ in this case is clear – landscaping was going to be lost by the reinstatement of four carparks and compensatory landscaping was proposed by an amended condition as a consequence of the reinstatement of the four carparks. Thought will need to be given to conditions which do not bear an obvious relationship with the change approved.
In light of the decision, consideration should be given to how a change application is framed. It may be possible to identify the changes sought in a way that is sufficiently certain to enable the application to be assessed, but also with an eye to framing the changes so as to enable some flexibility through the exercise of the power to impose conditions.
1 Ellendale at [21]
2 The Court also said that the exercise of the power is constrained by (1) sections 65 and 66 of the PA (which prescribe permitted and prohibited development conditions) and, in the context of a request to make a minor change, (2) section 46(4) of the Planning and Environment Court Act 2016 (that any change approved can only be a ‘minor change’).
Ellendale at [21]
3 Ellendale at [21]