Changes to a 15 level multi-unit residential development are not a minor change

The Planning and Environment Court has refused an appeal against the decision of Brisbane City Council to refuse a change application for a minor change to a development approval on the basis that the change would result in ‘substantially different development’. The decision provides useful guidance on the consideration of whether proposed changes are a ‘minor change’ under the Planning Act 2016 (PA).

In GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33, the appellant had made a change application for a minor change to its development approval for a multi-unit residential dwelling overhanging a heritage building on premises in Kangaroo Point. There were a number of changes sought which included the extension of the slab of the dwelling on its western elevation on all floors so that the building overhung further over the heritage building on the premises.

The Council refused that aspect of the change on the basis that it was not a minor change because it would result in substantially different development for the following reasons:

• The proposed change would increase the severity of the known impacts and would result in a dramatic change to the built form in respect of scale and bulk;

• The proposed change was inconsistent with the Heritage Overlay Code and Strategic Framework under the City Plan 2014 in so far as (amongst other things):
  • the proposed change would detract from the cultural heritage significance of the heritage place and setting of the heritage place;
  • the dwelling would no longer be compatible with the heritage place.

The change application was made and decided under the PA and the appeal is by way of a hearing anew. This means that the Court is to first, determine the appeal standing in the shoes of the Council, and second, base its determination on the law as it presently stands, subject to the qualifications in section 81 of the PA.

Section 81 relevantly provides:

• The Court must have regard to the matters that applied when the development application was made;

• The Court may assess against, or have regard to, the matters that applied when the change application was made;

• A minor change means a change that (amongst other things) would not result in a substantially different development;

• Schedule 1 of the Development Assessment Rules provides further guidance in relation to what a substantially different development may amount to;

• Whether the proposed change is a minor change is a matter of fact and degree and should be considered broadly and fairly with guidance found in Schedule 1 of the Development Assessment Rules;

• In assessing a change application for a minor change, a higher level of scrutiny will be applied for provisions of a Council’s planning scheme which are site specific;

• GBW Investments Pty Ltd has the onus of establishing the appeal should be upheld.

Experts in the areas of town planning, architecture, visual amenity and heritage were called by the parties to give evidence on their behalf.

Ultimately, the Court was satisfied that the proposed change would result in the dwelling overhanging further over the heritage building which would increase the severity of the impacts in terms of the protection of the setting of the heritage place and the place itself.

Accordingly, the Court determined that the proposed change was not a minor change and therefore it was not necessary to undertake an assessment of the proposed change against the provisions of the Council’s planning scheme.

Key takeaway

Developers and local governments need to be especially careful when applying for and assessing a change application for a minor change where there are site specific provisions of a planning scheme applicable to any consideration of whether the change is a minor change.

Authored by:
Stafford Hopewell, Partner
Elton Morais, Senior Associate