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 (SPA).
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 basement; and
- 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 development.
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 and appearance
...
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 impacts..."
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 parking stations
- 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 importantly different"
- even if the proposed changes did conflict with the Code, there were sufficient grounds to approve the changes notwithstanding the conflict.
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