(Everson DCJ - 23 October 2015)
Environment and planning – environmental planning – whether changes to a development application are a minor change – whether changes to a development application result in a substantially different development
Facts: This was an application in pending proceeding in which the appellant (Jimboomba Lakes) sought orders including a declaration that changes it wished to make to a development application were a minor change as defined in s 35 of the Sustainable Planning Act 2009 (SPA).
The development application sought a development permit for a material change of use for accommodation units (relocatable home park) on land at 5376 Mount Lindesay Highway, Jimboomba.
The respondent (Council) opposed the application, arguing that the changes were not a minor change as defined in s 350 of SPA.
The development application had been made under the repealed Integrated Planning Act 1997 (IPA) but not decided until after the commencement of SPA. The repealed IPA continued to apply as if SPA had not commenced, and the appeal was to be heard and determined under the repealed IPA as per ss 802(2), 819(5), (6) of SPA.
Pursuant to s 4.1.52 of IPA the court “must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”. The meaning of a “minor change” is defined in s 350 of SPA as inter alia, a change that “does not result in a substantially different development”.
The development application was originally lodged on 26 October 2006. It was accompanied by a plan showing 533 relocatable home sites, 297 parking spaces and the only access to the proposed development was to be from the Mount Lindesay Highway to the west of the land.
The plans had been amended multiple times since the application was lodged. The changes the subject of this application involved:
- an increase to the setback along the southern and western boundaries;
- relocation of certain car parks in the vicinity of the community building to enable retention of trees;
- removal of certain relocatable home sites from the south western corner of the development to enable stormwater infrastructure to be placed there and make provision for increased boundary setbacks;
- further reduction to the number of relocatable home sites to 390; and
- the making of provisions for an emergency access to the east of the land over two adjoining parcels of land to a cul-de-sac in Swan Road.
Decision: The Court held, in dismissing this application:
- Each of the proposed changes, with the exception of the emergency access, involved a change to the internal design of the proposed development with a view to lessening impacts. None of these items resulted in a substantially different development.
- The only access to the proposed development was from the Mount Lindesay Highway to the west. The appellant proposed that this be the primary access and that emergency access to the east be limited to use by emergency vehicles when the primary access is inundated by floodwater. The primary access to the land, however, was likely to be cut off by floodwater. The proposed emergency access to the east would require significant infrastructure.
- When assessing whether changes to an application resulted in a substantially different development the starting point was the words of the relevant statutory provision. Macquarie Concise Dictionary defined “substantial” as, inter alia, “essential, material or important”. The question for determination was whether the proposed changes fell within this definition in the context of the development application.
- Conversely, pursuant to s 4.1.2(2)(b) of IPA the court must not consider a change to an application on which the decision being appealed was made unless the change is only a minor change. This is because an assessment of proposed changes to a development application ought not be otherwise constrained by and subject to the exigencies of litigation in the absence of important assessment and decision making tools conferred by IPA, in the IDAS process.
- The limitation in s 350 of SPA that the change not result in a substantially different development meant that the proposed change must not be essential, material or important in the context of the development application.
- The proposed emergency access to the east was to be the only terrestrial link for residents of the proposed development to the outside world in flooding events which were forecast to occur on average once every five years. The Court was of the opinion that without the emergency exit, the development application could not be supported, making it essential to the proposed development.
- The Macquarie Concise Dictionary defined “material” as “of substantial import or much consequence”. Not only was the proposed emergency access of much consequence in providing for the evacuation of stranded residents in the foreseeable flooding occurrences which were forecast to inundate the primary access to the west, but the construction of it would involve significant engineering works.
- Consequently, the Court was satisfied that the proposed change for the emergency access was material. While each of the proposed changes with the exception of the change incorporating the emergency access to the east did not result in a substantially different development, the proposed emergency access would result in a substantially different development. It therefore had the consequence that the proposed changes were not a minor change as defined in s 350 of SPA.