Australia: The Court approves a permissible change application

In brief: The case of Highgate Developments Pty Ltd v Sunshine Coast Regional Council [2017] QPEC 37 concerned a permissible change application made by an Applicant under section 369(1)(d) of the Sustainable Planning Act 2009 for a development approval contained in a previous order of the Court for the subdivision of land at Tramline Rise and Pope Avenue, Burnside.

There were two matters for the Court to determine. The first matter was whether there was effective service of the originating application in compliance with the statutory requirements and the second matter was whether the proposed changes were permissible changes within the meaning of section 367 of the Sustainable Planning Act 2009.

As the Council raised no issue as to compliance with the statutory requirements regarding the service of the originating application, and there was evidence before the Court affirming this matter, the Court concluded that the statutory requirements regarding the service of the originating application had been satisfied.

After considering the extent of the proposed changes and the uncontested evidence submitted by the town planner for the Applicant in light of the relevant limbs of section 367 of the Sustainable Planning Act 2009, the Court concluded that the proposed changes would not result in a substantially different development. Further, the Court held that the proposed changes dealt favourably with the issues raised in the properly made submissions made in respect of the original development application and that, on the balance of probabilities, there would be no real prospect of causing any properly made submission objecting to the proposal.

After considering evidence and receiving no objection from the Council, the Court held that the statutory requirements regarding service of the originating application had been satisfied

Evidence as to the service of the originating application was submitted on behalf of the Applicant, satisfying the statutory requirements.

In addition to this, the Council raised no issue as to compliance with the statutory requirements and the concurrence agency for the development, the Department of Infrastructure, Local Government and Planning, submitted that it did not object to the proposed changes. Accordingly, the Court held that the statutory requirements regarding the service of the originating application had been satisfied.

There had been two previous changes made to the first two stages of the original approval by the Court with the present application being made in respect of stage three

The proposed changes were to a development approval granted by the Court and upon an appeal from the Council's refusal of the original development application.

The original approval was to be completed in three stages. The first stage had been completed. The second stage was the subject of a permissible change request granted by the Court in 2016 and related to a revised layout and consequential amendments to conditions.
The application the subject of this case concerned a permissible change application made under section 369(1)(d) of the Sustainable Planning Act 2009 and related to stage three of the original development approval.

Although the Council consented to the permissible change application, the Court was required to find that the proposed changes were permissible changes

The Applicant submitted that the following proposed changes responded to the natural topography of the site, changed the layout of the subdivision and realigned an access road:

  • increase in lot yield resulting in an overall development increase from 61 to 73 lots;
  • compliance with existing minimum lot sizes;
  • dedication of land along an existing watercourses to the Council as a reserve;
  • realignment of 'Road A' through stage three to reduce the amount of earthworks and retaining required for construction and an adjustment of 'Road B' to position it over level ground;
  • division of stage three into stages 3A and 3B.

Although the Council consented to the permissible change application, the Court was nevertheless still required to make a determination about whether the proposed changes were permissible changes within the meaning of section 367(1)(a) and (c) of the Sustainable Planning Act 2009.

The Court applied the exception under section 371(e) of the Sustainable Planning Act 2009 and held that it was not practicable for the Applicant to obtain consent from 20 individual owners in respect of the permissible change application

The issue of owner's consent under section 371 of the Sustainable Planning Act 2009 was raised briefly by the Court. The Applicant and a related company were the owners of the land subject to stage three and stage two of the development, respectively. However, as it had been completed, stage one had 20 individual owners which led the Applicant to seek to apply the exception available under section 371(e) of the Sustainable Planning Act 2009, being that consent from all owners can be excused.

The Court applied the exception as it was satisfied that due to the number of owners and the fact that the proposed changes did not materially affect the land of those owners, it was not practicable for the Applicant to obtain the consent from the 20 individual owners. The Court took into consideration whether the proposed changes caused any discernible impact to those lots as well as the potential cost and delay in informing the owners and obtaining their consent.

In considering the Applicant's submissions and the uncontested evidence of the town planner, the Court accepted that the proposed changes did not result in a substantially different development and would not cause any properly made submission objecting to the proposal

In assessing whether the proposed changes were a permissible change, the Court had to consider the cumulative effect of what was proposed on the existing approval and whether that constituted a substantially different development under section 367(1)(a) of the Sustainable Planning Act 2009.

The Court accepted the uncontested evidence of the town planner for the Applicant as well as the contentions set out in the Applicant's outline of submissions and held that the proposed changes did not result in a substantially different development as the changes did not introduce new impacts or increase the severity of known impacts.

The Court also considered whether, on the balance of probabilities, the proposed change would give rise to a real prospect of causing a person to make a properly made submission objecting to the proposed change.

The Court considered the issues raised in previous submissions and was satisfied that the proposed change would not result in the provocation of an adverse submission.

After considering the extent of the proposed changes, the evidence submitted by the town planner and the Applicant's submissions, the Court approved the permissible change application, concluding that the proposed changes would not result in a substantially different development. Further, the Court held that the proposed changes dealt favourably with the issues raised in the properly made submissions made in respect of the original development application and that, on the balance of probabilities, there would be no real prospect of the proposed changes causing any properly made submission objecting to the proposal

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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Ian Wright
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