Background
The Planning and Environment Court has refused two change applications for a minor change to a development approval in Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8 (Thomco) and Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19 (Highgate).
- Thomco concerned a change application for a minor change to a development approval for visitor accommodation, a manager’s unit and a motel building on land located at 215 David Low Way, Peregian Beach; and
- Highgate concerned an application to an existing development approval for the reconfiguration of a lot for a major urban subdivision (73 lots plus drainage/road reserves) on land located at Burnside on the Sunshine Coast.
Change applications
In Thomco, the applicant had sought to ‘reverse’ the staging plan under the existing approval to allow for visitor accommodation to be constructed first, followed by the construction of a motel building at a later date, dependent on economic conditions.
The applicant in Highgate had also sought changes to a staging plan which would result in an increase in lot yield and sub-staging. The effect of the proposed changes were that the existing approval permitted the reconfiguration of all of the land within proposed stages 3B, 3C and 3D, such that the dedication of land to the Council was assured if any additional lots were created on the balance land. Conversely, the changes, where granted, would permit the reconfiguration of all of the balance land at one time, “without staging or reconfiguration of just stage 3B while maintaining the land that forms stage 3C and 3D as a balance lot and without providing any land dedication to the council.” (emphasis added)
Minor change
The term ‘minor change’ is defined under schedule 2 of the Planning Act 2016 (Act) as change that, for a development approval, would, inter alia, not result in ‘substantially different development’.
The Development Assessment Rules (Rules) provide for circumstances in which a change to an existing development approval may be considered to result in a ‘substantially different development’. The Court in Thomco and Highgate noted the effect of paragraph 4(e) and (g) respectively, which provide as follows:
“(e) removes a component that is integral to the operation of the development;
…
(g) introduces new impacts or increase the severity of known impacts”
Notwithstanding this, his Honour Judge Rackemann stated in Thomco that “the list in paragraph 4 is not exhaustive and the listed changes may, but not must, be considered to result in a substantially different development [and that] the individual circumstances of the development, in the context of the change proposed, must be considered. Both quantitative and qualitative matters may be of relevance. Matters of fact and degree intrude.” (emphasis added)
Evidence of the applicants
While evidence of the applicant’s commercial intentions to ‘go on’ and construct the motel building in Thomco was led by Counsel at trial, the Court rejected this on the basis of the applicant’s previous representations in respect of the development of the site in that the applicant had not provided the Court with a “compelling basis for the favourable exercise of discretion” to grant the change application in the circumstances. Here, the Court was critical of the applicant’s considerable history of failing to act on development approvals granted by the Court, applications for extension to the relevant period of a development approval, and change applications concerning the subject site which dated back to 2010.
The Court similarly rejected the evidence of the applicant in Highgate, stating that the applicant had “not adduced sufficient evidence to demonstrate that the proposed change [did] not introduce new geotechnical impacts or increase the severity of known geotechnical impacts”. Her Honour Judge Kefford noted that in doing so, the applicant had failed to demonstrate that the proposed changes would not introduce new geotechnical impacts or increase the severity of known geotechnical impacts in according with the Rules.
The Court was also highly critical of the applicant’s use of its town planner to provide ‘expert evidence’ in relation to the geotechnical issues affecting the subject site.
Staging
His Honour Judge Rackemann provided the following observations in relation to the staging of development in Thomco:
“It is not uncommon for changes to approvals that permit or alter staging to be accepted as minor. Where development authorised by an approval is relatively homogenous, as can be the case in … new residential [development], industrial or commercial estates, changes to staging and the potential for later stages not to be delivered often have little, if any, prospect of resulting in substantially different development.” (emphasis added)
However, his Honour considered that the proposed changes to the existing approval in Thomco could not overcome paragraph 4(e) of the Rules, stating that “the motel component is, in form and function, substantially different from the dwelling component [such that] its non-provision would mean that the proposed development would lack an integral component and not operate as intended.”
Decision
Dismissing the application in Thomco, the Court held that the applicant had failed to establish that the reversal of the staging plan under the existing approval would not result in a substantially different development and was therefore not a minor change.
Also dismissing the application in Highgate, the Court held that the application would not provide any land dedication to the Council as previously envisaged under the existing approval and second, the applicant had failed to prove to the Court the application would not introduce new, or increase the severity of known geotechnical impacts.
Implications
Developers proposing to make a change application for a minor change to a development approval, particularly in relation to staging, should be aware of the following considerations:
- The history of activity concerning the development of a subject site;
- Removal of components that may be integral to the operation of their development; and
- Ability to demonstrate that changes to a development approval will not introduce new impacts or increase the severity of known impacts.
This article was written by Peter Bittner, Partner, Luke Walker, Senior Associate and Chris Vale, Solicitor.
