Making changes to development applications or approvals is a common occurrence in the development industry. If a change meets the criteria for a “minor change” under the Planning Act 2016 (PA), the change can be made with minimal disruption to the development assessment or appeal process.
The minor change test has frequently been the subject of judicial consideration, and this year there have been a number of reported decisions from the Planning and Environment Court (P&E Court). In this alert, Partner, Sarah Macoun; Senior Associate, Tom Buckley; and Law Graduate, Sarah Buchanan recap what has occurred in 2020 so far.
The test
In simple terms, a change can be considered a minor change if the proposed change:[1]
- does not result in substantially different development;
- does not include prohibited development;
- does not introduce new grounds for assessment by a referral agency;
- does not introduce a new or additional referral agency; or
- does not give rise to impact assessment where the assessment was previously code.
Most minor change applications turn on whether the change would result in a “substantially different development”. There is a non-exhaustive list of changes which fall within this category, such as changes which dramatically change the built form of the development, or changes that introduce new impacts or increase the severity of known impacts.[2]
Zumbo v Brisbane City Council & Ors [2020] QPEC 14
This matter involved an appeal against the Council’s decision to refuse an application for an 18-storey apartment building in Kangaroo Point. During the course of the appeal, the appellant applied to reduce the number of storeys from 18 to 12.
The P&E Court acknowledged that quantitatively, the reduction in height was significant. However, from a qualitative perspective, the development remained a medium height tower in an urban context and retained the key architectural features and design of the building. The decrease in height did not cause any adverse impacts or raise any further considerations. The change was not considered to result in a substantially different development and the change application was approved.
Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8
Thomco had an existing approval to develop 19 three-bedroom dwellings, a manager’s unit and a motel building with 22 one-bedroom and 10 two-bedroom motel rooms. The approval was conditional upon the motel component being developed in the first stage. Thomco’s change application sought to reverse the order of the stages, so that the motel would be developed in a later stage.
The issue identified by the P&E Court was that this proposal effectively changed the motel from being an essential component of the development to a potentially optional component. This was because if the approval was acted upon, the applicant was only required to deliver the first stage. There was no obligation to complete the second stage.
The P&E Court also noted that despite the dwellings and the motel falling within the same use class in the planning scheme, they were considered substantially different developments due to the differences in: their location on site; the size and form; the number of bedrooms; the space about the curtilage; and the convention facility of the motel and the market served. The minor change application was dismissed.
Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19
Highgate had an existing subdivision approval for 73 lots. The land has been subdivided into 53 residential lots and one balance lot over three stages. Highgate applied to change the approval by splitting stage 3B into three sub-stages - Stages 3B, 3C and 3D. Stage 3B contained the balance lot and included land that was required to be dedicated to the Council.
Stage 3 of the development is located on steeply sloping land. The change application did not include evidence from a qualified engineer to address any potential geotechnical impacts arising from the creation of sub-stages. Without evidence to this effect, the P&E Court was not convinced the changes would not result in a substantially different development.
The P&E Court was also concerned about the consequence of the sub-staging. Under Stage 3B, the applicant was required to dedicate land to the Council. By creating sub-stages, the land dedication would not occur until Stage 3C and 3D. As there was no obligation to complete Stages 3C and 3D once Stage 3B was complete, this created the possibility that additional lots could be created without having to dedicate any land to the Council. The P&E Court was concerned this would result in a substantially different development and the change application was dismissed.
Tokyo 2 Pty Ltd v Brisbane City Council [2020] QPEC 23
Tokyo 2 had an existing approval to develop 17 multiple dwellings and subdivide four lots into six lots. It applied to the P&E Court to make internal design and engineering changes. The majority of these changes were readily accepted by the P&E Court as minor changes.
The only problematic change was the proposed removal of existing significant trees at the rear of the property to be replaced by six new planted trees. It was submitted that the existing trees were impracticable to be retained having regard to existing encumbrances located within the tree protection zone. It was also submitted that the proposed change would affect the identified environmental protection zone on the lots.
The P&E Court had regard to the fact that 300 properly made submissions were made when the original development application was publicly notified, and that many of those submissions focussed on landscape and vegetation issues. It decided that the removal of the existing significant trees presented a very different outcome, both environmentally and aesthetically. Further, it considered the change would allow two small lots that were given significant environmental protection to effectively be razed, with potential future building areas substantially increased such that the built form may well cover a much greater part of each lot than was contemplated under the existing approval.
The proposed removal of the existing significant trees was considered to be a substantially different development, and that part of the change application was dismissed.
Rochedale Piazza Pty Ltd v Brisbane City Council & Ors [2020] QPEC 30
This matter involved an appeal against Council’s refusal of a proposed relocatable home park. During the appeal, the applicant applied to change the application. The applicant applied to change the description of what was proposed from “relocatable home park” to “relocatable home park (for seniors and retirees)”. The change was solely descriptive, there was no proposed change to the development in a physical sense.
The application was dismissed for two reasons:
- The change sought in reality contemplated a different use from the current application, being a use as a retirement facility, that would require assessment under the retirement and residential care facility code which had not been considered in the assessment of the application.
- The purpose of the change was expressed as “to make clear what has always been identified”. The P&E Court decided it was obvious that there is no sensible room for doubt about what the intended use is and what were the real issues in the appeal.
Shun Pty Ltd v Logan City Council & Anor [2020] QPEC 31
This matter was an appeal by a submitter against Council’s approval of mixed use development involving 198 multiple dwellings, food and drink outlets, function facility, offices, health care services, shops and shopping centre. The applicant for the proposed development sought to change the development application in three ways:
- abandon the option for a supermarket operated by a traditional major chain operator;
- change the description of one of the uses in the application from “shops” to “shops (including Asian themed supermarket)”; and
- change the level 1 floor plan to show “Asian themed supermarket” in place of the current notation of “supermarket”.
The submitter appellant contended that the proposed change would be substantially different to what was applied for as each of those forms of supermarkets had different impacts.
Unlike Rochedale Piazza, the P&E Court concluded the proposed change did not provide for something not otherwise contemplated in the original development application. The application contemplated the possibility of either supermarket option. The P&E Court was satisfied the election to only pursue an “Asian themed supermarket” did not result in a substantially different development and the change application was approved.
Conclusion
Some key considerations from the minor change cases this year include:
- change applications are assessed from qualitative and quantitative perspectives;
- proposed changes to the staging of a development require consideration of whether the obligation to deliver an integral component of the development will be impacted;
- submissions made in relation to the original development application may be relevant to a change application for an existing approval; and
- descriptive changes are permissible provided they do not introduce a use not contemplated in the development application.
For further information or discussion, please contact a member of our Planning and Environment team.
[1] The full test is set out in Schedule 2 of the PA and must be read together with the Development Assessment Rules
[2] The full list is set out in Schedule 1 of the Development Assessment Rules