Warning - changing staged approvals!

Why there is usually more to these requests than meets the eye...   

Highlights

One of the considerations for a request to change a development approval is whether the proposed change will result in a substantially different development.

The Planning and Environment Court has recently confirmed that a simple change to the order in which components of the overall development are delivered may still result in a substantially different development, even though the change involves no physical alterations.

Context

Because an approval can only result in development if it is acted upon to some extent, Council's consideration of a proposed change will ordinarily require it to envisage the development that will result from the changed approval being acted upon.

Where, however, the proposed change is to a development authorised to occur in stages, the consideration is broader because such an approval may be acted upon to carry out:-

1. the whole of the approved development at one time;
2. different stages of the development in sequence, but at different times; or
3. one or more stages of the development, without obligation to develop all subsequent stages.

To guard against the third of these potential development outcomes, Councils will usually structure approvals to require important components such as roadworks, drainage or land dedication to occur as part of the first stage of the development.

Recent decisions 

In Thomco (No.2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8 the developer sought to change an approval authorising a motel building in stage one and dwellings for visitor accommodation in stage two.  The change involved no more than switching the order for delivery of those two uses and their associated components.

In rejecting the developer's contention that the change was a minor one the court observed that, given the differences between the two uses in terms of their form and function and the potential for a development outcome whereby only the visitor accommodation was ultimately constructed, the developer had not established that the change would not result in a substantially different development.

This approach was confirmed in Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19 where a developer sought to change a reconfiguring lot approval to defer the beneficial dedication of land adjoining vegetated watercourses to later stages.

The court was not persuaded that this change was inconsequential, or that there was no risk of this important component not being delivered.

Implications

When a request to change an approval is received that seeks to alter the order in which components of the overall development are delivered, Council should compare the potential development outcomes under the original approval with those available under the changed approval.

A changed approval that would operate to defer integral components to a later stage will allow for development outcomes that are not available under the original approval, including an outcome where those components are never delivered.

As the Development Assessment Rules provided under the Planning Act 2016 suggest, a proposed change may result in a substantially different development if it changes the ability of the proposed development to operate as intended or removes a component that is integral to the operation of the development.

While a relevant consideration in the above decisions was the developer's history of changing their plans for the site, the fact that an approval runs with the land and can be on-sold to another developer suggests that, in these circumstances, it may be difficult for a developer to demonstrate that the likely overall development outcomes pre and post change will be the same.

For more information regarding these decisions, and how they affect applications by developers seeking to change staged approvals, please email Michael Quirk or Michael Cerruto at King & Company, or call us now on (07) 3243 0000.