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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:
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.
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.
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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