Dixing International Pty Ltd v Sunshine Coast Regional Council [2012] QPEC 64

Background

This matter was an application by Dixing International Pty Ltd (“Dixing”) to the court for an exercise of the discretion of the Court to approve the changes to their Development Application as “minor changes”. This application is part of a wider appeal against the decision of the Sunshine Coast Regional Council (“the Council”) to refuse an application for a Development Permit.

The grounds of the Council’s refusal were that the proposed development did not set aside land required for a future widening and upgrade of a neighbouring road, which was contemplated in the Mooloolaba Integrated Transport Plan; and that the proposed development was inconsistent with the Maroochy Plan 2000.

Fortunately, the parties have reached an agreement where the Council intends to support the approval of a changed form of the development which makes allowance for the necessary land required for a future widening and upgrade of the neighbouring road.

Facts

The Development Application for the mixed use development was to be contained within an eight storey building, 25 metres high and set on a podium level which occupied a larger footprint on the land.

The change to the Development Application provides for the same mixed use development, although in an eight storey building of the same height but without the podium level. It now has a set back from the neighbouring road (to satisfy the reasons for refusal), a change to the gross floor area of the building, a change to the relative ratio of non-residential to residential uses, a change to the ratio of multiple dwellings and motel units, and an alteration to the architectural style of the external appearance of the building.

Issues

The appeal was lodged under the Integrated Planning Act (“IPA“) and accordingly the Court must not consider a change to the application unless the change is only a “minor change”.1

Pursuant to s 350 of the Sustainable Planning Act (“SPA”) a minor change is one that:

  1. Does not result in a substantially different development;
  2. Does not require the application to be referred to any additional referral agencies;
  3. Does not change the type of development approval sought; and
  4. Does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment.

The original Development Application was subject to impact assessment. No additional referral agencies are triggered by the changes to the proposed development. The type of Development Approval sought has not changed.

Hence the primary issue is whether the changes result in a “substantially different development”.

So far as is relevant in this case, a change may result in a substantially different development if the proposed change:

  • Dramatically changes the built form in terms of scale, bulk and appearance;
  • Significantly impacts on traffic flow and the transport network, such as increasing traffic to the site.2

Decision

His Honour agreed with Dixing’s argument that the changes to the architectural design of the building could be regarded as being significant in their scale, but that the changes provide an improved architectural outcome, even though the external aspect of the building has altered quite markedly. His Honour also agree that the changes reflect a response to the reasons for refusal in the sense that provision has now been made for the possible widening and upgrade of the neighbouring road.

Whilst the issue of minor change involves consideration of the broader considerations contained in s 350 of SPA, even under the IPA provision the relevant case authorities applied a fairly broad and generous construction of what constitutes a “minor change”. The essence of the proposed development as it has been changed is still the same as originally proposed, despite what appears to be multiple changes of a large scale.

Whilst the changes might be considered “significant” by reference to a dictionary definition of that expression, they do not in His Honour’s view amount to a substantially different development for the purpose of the statutory definition of “minor change”.

His Honour was satisfied that the proposed changes to the development application in the strict legal sense are not “different in essence or essentially or materially or importantly different”, in a holistic context. There is no evidence of any community concern about the development and that probably reflects the fact that a development of this kind either in its original form or as changed is expected to be constructed in this precinct at the gateway entrance to Mooloolaba.

His Honour was also conscious of the fact that the proposed changes are the consequence of a negotiated resolution of the reasons for refusal by the respondent Council, that the Council supports the development application as changed and supports this application for an exercise of discretion by the Court with respect to the issue of “minor change”.

In these circumstances, the Court found that the changes to the proposed development were, in accordance with the legislation, “minor changes”. Accordingly, upon an exercise of his discretion, Durward DCJ determined that the changes may properly be considered as “minor changes” on the application of the statutory test.