The State Government has released a statutory guideline
06/09 which provides guidance on what may constitute a
substantially different development in the context of the meaning
Minor change to a development application (section 350
of the Sustainable Planning Act 2009
Permissible change to a development approval (section
367 of the SPA).
The purpose of this guideline is to assist applicants
and assessment managers to determine if a proposed change for a
development application or development approval would result in a
substantially different development
Changing Development Applications and Approvals
Changes can be made to development applications before they are
decided, provided that those changes are minor changes. Development
approvals can also be changed, if the change is a permissible
Section 350 of the SPA defines a minor change in relation to a
development application. This definition sets out a number of
requirements that the change to the development application must
meet in order to be a minor change. One of these requirements is
that the change must not result in a substantially different
development to that which was applied for.
Section 367 of the SPA defines a permissible change in relation
to a development approval. This definition also sets out a number
of requirements that the change to the development approval must
meet in order to be a permissible change. One of these requirements
is that the change to the development approval must not result in a
substantially different development to that which was approved.
What Constitutes a Substantially Different Development?
Although it will depend on the individual circumstances of the
development, the following list identifies changes that may result
in a substantially different development and would therefore not be
a minor change or permissible change under the SPA. This list is
intended as a guide to assist assessment managers and applicants to
determine whether a change would result in a substantially
different development and is not intended to be exhaustive.
Under the guidelines, a change may result in a substantially
different development if the proposed change:
Involves a new use with different or additional impacts.
Results in the application applying to a new parcel of
Dramatically changes the built form in terms of scale, bulk and
Changes the ability of the proposal to operate as intended. For
example, reducing the size of a retail complex may reduce the
capacity of the complex to service the intended catchment.
Removes a component that is integral to the operation of the
Significantly impacts on traffic flow and the transport
network, such as increasing traffic to the site.
Introduces new impacts or increase the severity of known
Removes an incentive or offset component that would have
balanced a negative impact on the development.
Impacts on infrastructure provision, location or demand.
It must, however, be noted that the guideline is just that
– a guideline. It is not meant to be determinative. It has
been gleaned from recent judgements of the court that although the
court continues to have regard to the guideline, the court decide
whether a proposed change amounts to a substantially different
development on a case by case basis.
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.
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