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
Sustainable Planning Act 2009 (Qld), s. 350 (1) (d)
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
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 was not part of the land the subject of the
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
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
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.
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guide to the subject matter. Specialist advice should be sought
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