(Andrews SC DCJ - 14 February 2013)
Download
the judgment
Planning and Environment – whether minor change proposed – where proposed change involved a parcel of land not in the original development application – where proposal to lay underground stormwater pipes beneath and a footpath on the new parcel of land – whether new impacts or increased severity of impacts – whether adverse traffic impacts – whether adverse vegetation impacts – whether adverse stormwater impacts – whether substantially different development.
Sustainable Planning Act 2009 (Qld), s. 350 (1) (d) (i)
Facts: This matter involved an application for a declaration that a change proposed to a development application was a "minor change" within the meaning of that term in s. 350 of the Sustainable Planning Act 2009.
The Appellant had appealed against the conditions being imposed by the Council in a development approval granted for a shopping centre. There was a related submitter appeal against Council's approval.
In the course of the appeal, the Appellant wished to amend the original proposal by including a 3 metre wide footpath leading to the proposed shopping centre over an adjoining property known as "Lot 8".
Lot 8 was not part of the land the subject of the application.
The relevant test was whether the change resulted in a "substantially different development".
The fact that the change would result in the application applying to a new parcel of land, Lot 8, engaged a criterion from Statutory Guideline 06/09 (Substantially different development when changing applications and approvals).
The Council supported the application for the declaration but the submitters argued that the change, prima facie, was not a minor change.
The guideline provided that such a change "may result in a substantially different development" but in so providing, the guideline commences with the words: "Although it will depend on the individual circumstances of the development".
Decision: The Court held, in allowing the application:
It was necessary to consider the individual circumstances of the development when considering whether the inclusion of a new parcel of land results in substantially different development.
Lot 8 was affected. It seems the consequences for Lot 8 could be appropriately described as insubstantial. However, whether the consequences for Lot 8 were properly described as insubstantial or better described as significant was not the issue and the difference did not affect the outcome. The issue was whether the proposed change to the application resulted in a substantially different development and not whether there would be a consequence which had significance.
The result of the change was to enhance the pedestrian connectivity of the proposed shopping centre to the main street of Canungra, with a footpath over the drainage easement on Lot 8, and to improve the stormwater regime in the vicinity by filling that easement on Lot 8 and laying adequate stormwater pipes beneath the filled easement. It did not create adverse traffic, vegetation, pedestrian safety or stormwater impacts. The appellant still proposed to develop a shopping centre of the same scale, gross floor area, retail offering and style and did not propose to add new uses or new shopping facilities or offerings.
Looked at broadly and fairly, the changes would not result in a "sustainably different development".
It was appropriate to make the declaration sought.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
