Test for minor change
1. The test for a minor change is set out in its definition in Schedule 2 of the Planning Act 2016 (PA) which must be read with the Development Assessment Rules (DAR).[1] Relevantly, a change can be considered as a minor change if the proposed change does not result in ‘substantially different development.’ A minor change application is assessed in accordance with s 81 of the Planning Act 2016 and will not be publicly notified. Accordingly, submitters do not have the right to be heard in an application seeking a minor change, as they otherwise would for an appeal regarding a development application.[2]
2. A change other than a minor change application is assessed in accordance with s 82 of the PA and the DAR, which follow the timeframes of a new application and may require public notification of the change to be carried out.
Determining whether a change is ‘substantially different’
3. ‘Substantially different’ is undefined in the PA or the DAR. Everson DCJ, in Northbrook Corp Pty Ltd v Noosa Shire Council[3]states:
“[13] The starting point for the assessment of whether the changes result in a substantially different development is the words of the relevant statutory provision and “substantial” is defined in the Macquarie Concise Dictionary as, inter alia, “essential, material or important”. The question for determination is whether the proposed changes fall within this definition in the context of the development application.”
4. However, Williamson QC DCJ in Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors[4] states:
“[43] The definition of minor change in the PA does not, in combination with s 46(3) of PECA, preclude the court from considering a change to a development application that is characterised as essential, material or important. Rather, the provisions, taken in combination, permit the court to consider a change where it is satisfied that, inter alia, it would not result in substantially different development. Central to this test is the result of the change to a development application, rather than the significance of the change itself. That this is so has long been recognised by the court: see for example Dempsey v Brisbane City Council [2012] QPELR 396, [20]. To the extent it is submitted the decision in Jimboomba Lakes suggests otherwise, I am not persuaded that such an approach is correct having regard to the definition of ‘minor change’ in the PA, which is the definition to be applied to the application presently before the court.”
5. Schedule 1 of the DAR provides a non-exhaustive list of circumstances of which a change may constitute a substantially different development.[5] Schedule 1 of the DAR states a change may result in a substantially different development, if the proposed change:
(a) involves a new use;
(b) means the application applies to a new parcel of land;
(c) dramatically changes the built form (scale, bulk and appearance);
(d) changes the operation of the development from that intended;
(e) removes an integral component to the development’s operation;
(f) significantly impacts on traffic flow or transport networks;
(g) introduces new impacts, or increases the severity of known impacts;
(h) removes an incentive or offset component, balancing a negative impact of development; or
(i) impacts on infrastructure provisions.
6. There is no legislative requirement for the Court to consider the matters in Schedule 1 DAR.[6] Whether a change is ‘minor’ is a matter of fact and degree, considered broadly and fairly, with guidance found in Schedule 1 DAR as listed below.[7] The Court may consider both quantitative and qualitative matters, as relevant.[8] However, the individual circumstances of the development (including the development application),[9] in the context of the proposed change, must be considered.[10] For example, a reduction in height maybe significant quantitatively. However, from a qualitative perspective, the development may remain a ‘medium-height tower’, in an urban context, and retain the key architectural features and design of the building.[11]
Removal of salient feature
7. The removal of a salient feature will be considered as constituting a substantially different development. In Tokyo 2 Pty Ltd v Brisbane City Council,[12] it was proposed to remove existing significant trees at the rear of the property and replace them with six new planted trees. The P&E Court decided that the removal of the existing significant trees presented a very different outcome, both environmentally and aesthetically. It 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.
8. Another example where a change involving the removal of a particular use was found to be substantial was in the oft cited case of Carillon Development Ltd v Maroochy SC.[13] An application was made to delete a cinema complex and some car parking from a mixed use development. The Court held that the removal of the cinema complex was not minor as it could have been regarded by residents as a community benefit provided by the development and might have overcome dissatisfaction with other features of the proposal that might otherwise have provoked objection.
9. In contrast, in Murphy v Moreton Bay Regional Council & Anor[14], the proposed change included the removal of a number of uses in a centre from 41 down to 6. The Court held that the removal of the uses constituted a minor change. However, the advertisement of the development included those uses as merely ‘possible uses’ rather than essential features of the development, and were uses that would require the development be code assessable. The uses that were specifically contemplated in the application remained. Thus, while public notification and submissions relating to child care and religious activities were uses that were removed, it did not remove an incentive or offset component (balancing negative impacts of the development) as they were only ones that ‘might’ be included, not ones that would. The Court distinguished the case in this regard from Carillon Development Ltd v Maroochy Shire Council.
E J Morzone QC
Chambers
