By: Anthony O’Dwyer, Esq. & James Deegan, Esq.
Mullins Lawyers
Brisbane, Australia
The requirement for changes to development applications not to result in substantially different development extends to changes to applications for preliminary approvals. This is despite preliminary approvals not authorizing assessable development to take place.
In Northbrook Corporation Pty Ltd v Noosa Shire Council & Ors1, the Planning and Environment Court refused an application seeking a declaration that changes to a locality plan were minor changes as the changes to the plan would result in a substantially different development.
In December 2012, Northbrook Corporation Pty Ltd (the Appellant) sought to obtain a preliminary approval to vary the effect of the Maroochy and Noosa planning schemes which applied to a proposed mixed use community title development.
The Appellant submitted a Locality Plan with the application which outlined the ways in which the Appellant sought to vary the planning schemes. The application was refused and on appeal the Appellant sought to make changes to the Locality Plan, arguing that the changes constituted minor changes as they did not result in a substantially different development under section 350 of the Sustainable Planning Act 2009 (SPA).
The principal changes sought by the Appellant are summarised as follows:
- A reduction in the number of precincts comprising the locality plan from four to two;
- A reduction of over 75% in the proposed density of the development (from a maximum 1009 dwellings to 251);
- An increase in lot sizes for detached housing; and
- Various changes to the access and internal linkages of the development.
The Appellant argued the proposed changes did not result in a substantially different development for the following reasons:
- The proposed changes to the Locality Plan did not result in any development at all, and as such could not result in a substantially different development. It was argued that because the Appellant was merely seeking a preliminary approval which did not authorize assessable development to take place, there could not be any substantially different development.
- In any event, the Appellant argued the proposed changes to the Locality Plan did not amount to a substantially different development as when viewed broadly, the development was still 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.
Regarding the Appellant’s first argument, the Court held that although the application was only for preliminary approval, the application remained subject to the Integrated Development Assessment System and was to be assessed in a manner similar to other development applications.
The Court had regard to the purpose of the preliminary approval (which provided for the development to be in accordance with the proposed Locality Plan) together with the requirement for preliminary approvals to be assessed in the same manner as other development applications, and held that the section 350 SPA requirement that changes “do not result in a substantially different development” applied to the outcomes of the development contemplated by the preliminary approval.
Regarding the second ground of appeal, the Court referred to the Macquarie Dictionary definition of ‘substantial’ as being “essential, material or important” and held that the question for determination was whether the proposed changes fell within this definition in the context of a preliminary approval.
In this context, the Court held that the magnitude of the changes proposed to the footprint and density of the intended composition of the development, involving the elimination of two of the four precincts, a substantial reduction in the developable area and a 75% reduction in proposed dwellings, were both material and important.
The Court held that the Appellant’s proposed changes to the Locality Plan would result in a substantially different development and the Application was refused.
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