Application to amend a development approval – whether changes unlikely to cause a person to make a submission objecting to the proposed changes – s.367 Sustainable Planning Act 2009

Facts: This was a further application to amend a development approval. An Order had been previously made granting certain amendments, but not changes relating to inclusion of outdoor dining areas and of some Juliette balconies to the accommodation proposal.

The Court had particular regard to s.367 of SPA as to the definition of "permissible change" and in particular, sub-section 1(c) requiring the formulation of an opinion as to 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 Applicant had obtained a further report from a noise consultant.

People who had previously indicated a desire to have an opportunity to make an objection had again indicated such a desire, notwithstanding the acoustic report.

Decision: The Court held, in dismissing the application, that:

  1. The statutory provisions should be read as requiring the entity to consider whether someone would make a properly made submission objecting to the proposed change on a relevant basis, at least.
  2. If the Court was deciding the matter today as a matter of merit, the additional report would support an approval. However, the question was not whether the Court was prepared to approve a development in the amended form if that were the only material available upon the hearing of an appeal, but whether in the circumstances, in light of the material it could form the opinion that the changes would be unlikely to cause a person to make a properly made and, relevant, submission objecting to the proposed changes if the circumstances allowed.
  3. In light of the material that had been received from those who say they wished to have that opportunity, and having regard to the at least relevant grounds that are included in their material, the Court was not satisfied that the changes would not be likely to cause a person to make a relevant submission objecting to the proposed changes.

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