Request for permissible change – likelihood of
submission objecting to change – evidence from members of
the public – substantially different development deferral
of consideration of some changes – ss. 367 and 369 of the
Sustainable Planning Act 2009
Facts: Scanlon Property Group Pty Ltd
(Scanlon) applied to the Court for a permissible
change to an existing Court-ordered development approval for a
mixed use development, including residential and other uses. The
proposed changes included proposed staging of the development,
alterations to the commercial building, increased car parking,
re-design of internal traffic arrangements, internal design
changes, an amendment to the stormwater plan, an extension to the
currency period for the approval, the addition of two outdoor
dining areas and the addition of juliette balconies.
The key issues for the Court's consideration were whether
the proposed changes resulted in substantially different
development, and whether the changes would be likely to cause a
person to make a properly made submission objecting to the proposed
changes if the circumstances allowed.
The Court was provided with evidence in the form of two letters
from interested members of the public opposing the changes. Those
letters objected to the outdoor dining component as well as other
aspects of the proposed changes.
Scanlon obtained an expert acoustic report which concluded that
the proposed outdoor dining would be acceptable in this case.
However the expert report had not been provided to those who say
they are concerned. Further, the report only referred to the
outdoor dining and did not contain an analysis of the
Scanlon asked the Court to defer its consideration of the
outdoor dining areas and the juliette balconies, and only sought a
decision on the other proposed changes to the development.
Decision: The Court held that:
In relation to the likelihood of submissions, the question is
not whether the change would cause a person to make a submission
which would ultimately be upheld in the sense of leading to a
refusal on the merits. Rather, the question is whether the change
would cause a submission objecting to the changes to be made.
In relation to the changes other than the outdoor dining and
balconies, it was unlikely that they would provoke someone to make
a properly made submission objecting to those aspects of the
change. Also, they did not result in a substantially different
development or otherwise fall outside the parameters of a
The Court was prepared to make an order allowing the changes,
and deferring the consideration of the balconies and the outdoor
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