Application for permissible change – whether proposed
changes to conditions amount to "permissible change"
– whether amending car parking arrangements and basement
constitute a "permissible change" – whether
conflict with planning scheme code – ss. 367, 369, 374 and
375 of the Sustainable Planning Act 2009
Facts: This was an application by Naaman George
Malouf and George Mark Malouf (the applicants) who
had the benefit of a development permit for a seven-storey
apartment building on land at 197-199 Jefferson Lane, Palm Beach.
The approval was originally pursuant to a consent Judgment of the
Court made on 27 February 2007. That approval included a condition
requiring the applicants to dedicate 215m2 of the beachfront land
to the respondent and construct a seawall along the beachfront.
The applicants sought to amend three conditions:
Condition 1 – to change the approved plans;
Condition 41 – to change the design of the building's
Condition 51 – which required certification as to the
height and setback of the basement.
The issue before the Court was whether the proposed changes to
the conditions were permissible changes in accordance with section
367 of the SPA. More particularly, the Court had to enquire whether
the changes to the approval would result in substantially different
In addition to the relevant statutory provisions of the SPA
relating to the assessment of a permissible change, the Court also
considered Statutory Guideline 06/09, which provided:
"A change may result in a substantially different
development, if the proposed change:
dramatically changes the built form in terms of scale, bulk
significantly impacts on traffic flow and the transport
network, such as increasing traffic to the site
introduces new impacts or increases the severity of known
The respondent submitted that the proposed changes were in
conflict with PC1 of The Ocean Front Land Code (the Code) in the
Gold Coast City Council planning scheme. Other issues were raised
by the Council in respect of traffic safety, the basement access
ramp gradient, car parking heights and visual amenity.
Decision: The Court held that, the application
be granted for the reasons that:
in assessing the proposed changes against PC1 and AS1 of the
Code, strict compliance was not required and the focus was on PC1
in a scheme which was performance based
Australian Standards were not textbooks for the design of
the changes contemplated by the proposed new conditions did not
constitute a substantially different development; that was, one
that "is different in essence or essentially, materially or
even if the proposed changes did conflict with the Code, there
were sufficient grounds to approve the changes notwithstanding the
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