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 of:

  • Minor change to a development application (section 350 of the Sustainable Planning Act 2009 ("SPA")).
  • 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 change.

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 land.
  • Dramatically changes the built form in terms of scale, bulk and appearance.
  • 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 development.
  • 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 impacts.
  • 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.