Environment and Planning – environmental planning
– where the appellant seeks a declaration that proposed
changes to a locality plan in an application for a preliminary
approval constitute a minor change – whether the changes
result in development – whether the changes to the
application result in a substantially different
Facts: This was an application in pending
proceeding in which the appellant sought a declaration that the
changes it proposed to the Noosa on Weyba Locality Plan
(Locality Plan) constituted a minor change
pursuant to s350 of the Sustainable Planning Act 2009
The Locality Plan was originally submitted in support of a
development application for a preliminary approval for a material
change of use to vary the effect of the Maroochy Plan 2000 and the
Noosa Plan. The Locality Plan stated the way in which the appellant
sought to vary the planning schemes that applied to the land.
The development application was refused and gave rise to an
appeal to the Court. During the course of the appeal, the appellant
sought to change the development application, giving rise to this
application in pending proceeding.
The proposed changes consisted of a reduction in the number of
'precincts' from four to two. The amount of attached
housing was to be reduced (from 407 attached dwellings to 40
attached dwellings), the lot sizes were to increase and the overall
density of the development was to be reduced. Retirement and
special needs housing was no longer proposed and access points and
internal roadways were also to be changed.
To satisfy the court that the proposed changes constituted a
minor change, the appellant needed to demonstrate that the proposed
changes would not result in sustainably different development
(pursuant to s350(1)(d)(i) of SPA).
The appellant argued that s350(1)(d)(i) did not apply to the
proposed changes. It was submitted that the proposed changes would
not result in development at all as the changes related to a
development application for a preliminary approval and a
preliminary approval does not authorise assessable
'development' to take place (as defined in s7 of SPA).
In the alternative, the appellant submitted that the proposed
changes did not result in substantially different development. It
was submitted that:
When the changes are broadly considered, the resulting
development will remain subject to Preliminary Approval for a
medium scale residential community, with developable areas; land
transferred to the Crown for environmental purposes; open space
areas and a small scale commercial area.
Decision: The Court held, in refusing the
Section 350(1)(d)(i) did apply to the proposed changes.
When regard was given to the fact that a development
application for a preliminary approval is subject to IDAS like
other development applications, and that the purpose of the
preliminary approval is to provide for development in accordance
with the Locality Plan, it was tolerably clear that the term
'does not result in a substantially different development'
refers to the outcomes in terms of the various categories of
development defined in s7 of SPA which were contemplated by the
The magnitude of changes proposed to the footprint and density
of the development were both material and important. This was so
from both a quantitative and a qualitative perspective as the
reductions in the footprint and density of the development occurred
in the context of material changes to the intended composition of
the mixed use community the subject of the development
In the context of a preliminary approval, the changes resulted
in substantially different development.
Changes to traffic access and connectively were, at least in
part, consequences of the changes but did not, of themselves make
for substantially different development. The same was true of the
consequential changes from an environmental and bushfire management
perspective. These consequential changes required assessment
through the IDAS process provided for in SPA.
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