The ability to change approvals, both before and after an appeal period has ended, is one of the more practical elements of the planning legislation. Under the Sustainable Planning Act 2009 (SPA), we became used to the “permissible change” regime for changing approvals after an appeal period ended. The process around negotiated decision notices (which operates before an appeal period ends) has been entrenched for some time. Under the Planning Act 2016 (Planning Act), there are some notable changes to the change rules, which are discussed in this article.
Negotiated decision notices
The provisions dealing with changes during the appeal period are contained in sections 74 to 76 of the Planning Act. As was the case under the SPA, these provisions are intended to allow developers and Councils to resolve disputes about conditions and other matters outside of an appeal, through a negotiated decision notice. The process is largely the same as that contained in the SPA – written representations must be made to Council, there is still an ability to suspend the appeal period if more time is required to make the representations and, as before, an applicant then has 20 business days to make the written representations.
Again, there is no timeframe for Council to decide the representations, but there is a new provision which is very important. Once the appeal period is suspended, and representations are made (within the 20 business day period) the suspension of the appeal period will only operate for a further 20 business days. After that, the balance of the appeal period will restart.
This is an important change because it means an appeal period might be ticking away, even though the Council has not made a decision in relation to the change representations. There is an ability for an applicant and Council to agree to extend the suspension of the appeal period. Applicants should ensure this power is used, in order to make sure an appeal period does not inadvertently expire.
Minor changes to approvals
Under the SPA, a development approval could only be changed if it was a “permissible change”. The Planning Act uses the term “minor change”, which is defined to cover familiar concepts such as changes that would not result in a substantially different development, not trigger additional referral agencies and not trigger public notification if it had not previously been required for the development application.
The important change here is that an assessment manager is no longer required to consider whether or not a person would make a properly made submission objecting to the change. This was an area of the permissible change test which generated difficulties for developers and Council alike. Its removal is a positive step forward.
Other changes to development approvals
The Planning Act now includes a process for changing approvals for “other changes” where those changes are not “minor changes”. This process can be used instead of making an entirely new development application. The change application is made to the Council, who will then assess and decide it. Public notification is required in some circumstances (i.e. if the change itself triggers public notice or the change involves a substantially different development).
The real benefit of the new “other change” regime lies in the assessment provisions. A Council must assess and decide the change application “in the context” of the existing development approval. The reference “in the context of the development approval” is intended to convey that the proposed change should not be considered in isolation, nor should the entire development (including the change) be re-assessed. Instead, it is intended that the change be assessed with reference to the context of the existing development approval. The example provided in the explanatory notes states that, if there is an approval for a 10 storey building and a change application is made for a further two storeys, the additional two storeys are assessed in the context of a 10 storey building. This suggests the assessment approach is to assume the 10 storey building exists with its associated impacts, meaning the further two storeys are assessed in that context, rather than in the context of an undeveloped site.
Further, when assessing the change application, the assessment benchmarks only apply to the extent relevant. The explanatory notes provide an example of an existing approval for a shopping centre, cinema and service station, with a change application which only relates to the cinema. It is unlikely that the assessment benchmarks relevant to the shopping centre and service station would be relevant to assessing the change application.
The new “other change” process will assist in dealing with inconsistencies between overlapping approvals. Because the old change regime under the SPA limited changes to permissible changes, it was necessary to go back and obtain an entirely new approval for changes outside of that scope. Now, it will be possible to consolidate changes into a single approval.
Changing Court approvals
Finally, for development approvals that have been issued by the Planning and Environment Court (P&E Court), the Court will be responsible for assessing and deciding a change application only if:
- the change is a minor change;
- the approval was given because of an order of the P&E Court; and
- submissions were made properly for the development application.
There are two important things to note here. First, the P&E Court can only consider “minor changes” to Court approvals. If the change is not a minor change, the alternative process for “other changes” applies. Secondly, the requirements are cumulative, so if there were no submissions made about the original application, it is not necessary to go back to Court to change the approval. A Council can assess and decide the change request, even if the approval was issued by the Court.
Overall, the changes to the change rules are positive. They add flexibility to the change regime in ways that will be useful to both Councils and developers.