(Everson DCJ - 3 June 2015)
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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 development.
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 (SPA).
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 application:
- 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 preliminary approval.
- 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 application.
- 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.