The Planning and Environment Court delivered a decision in the matter of Highgate Developments Pty Ltd v Sunshine Coast Regional Council  QPEC37 which involved a permissible change request made by Highgate Developments Pty Ltd to the Sunshine Coast Regional Council in respect of a development approval.
The development approval had been originally granted by the Court on 17 October 2008, and changes to the original approval had been previously approved on 29 April 2011 (in relation to stage 1 which had been completed) and 24 June 2016 (in relation to stage 2). The proposed changes as part of this request involved changes to the third stage of the development which had the effect of changing the layout and realigning the access road by:
Highgate Developments also sought a declaration from the Court that the consent of the owners of the land to the proposed changes to the development approval was not required because it was not practicable to obtain the owners’ consent and the proposed changes did not materially affect the land of those owners.
The Council and the Department of Infrastructure, Local Government and Planning consented to the order sought by Highgate Developments.
The Court was satisfied with the material put forward by Highgate Developments and the submissions made by the parties, and on that basis, made the order.
The Court noted that it must be satisfied that the changes were permissible changes within the meaning of section 367 of the Sustainable Planning Act 2009. In particular, whether the proposed changes to the development approval would result in a substantially different development and whether the changes would cause a person to make a properly made submission objecting to the proposed changes if the circumstances allowed.
The Court was also required to exercise its discretion in excusing the requirement for Highgate Developments to provide owners’ consent as part of the application in accordance with section 371(e) of the Act.
Consent of the owners
Highgate Developments was the owner of the lot the subject of stage 3 of the development, and a company related to Highgate Developments was the owner of the lot the subject of stage 2 of the development.
Evidence of owners’ consent to the lot the subject of stage 2 was in evidence. However, stage 1 had been completed and the relevant lot had since been subdivided and 20 individual owners now owned the subdivided lots.
Highgate Developments sought an exception to provide owners’ consent under section 371(e) of the Act on the basis that:
The Court noted that the impracticability and potential cost and delay in informing separate owners and obtaining their consent in relation to the proposed changes and how they would be affected were also relevant considerations.
Ultimately, having regard to the proposed changes and their impact on the owners of the subdivided lots in stage 1, the Court exercised its discretion to excuse Highgate Developments for not obtaining the relevant owners’ consent.
In assessing whether the proposed changes to the development approval were permissible changes, the Court had regard to the following matters:
The Court accepted Highgate Developments’ submissions, and the uncontested evidence of Highgate Developments’ town planner that the proposed changes would not result in a substantially different development to the existing approval and would improve the development overall. In particular:
Likelihood of properly made submissions
Due to the proposed changes in increasing the number of lots adjoining the northern boundary of stage 1 from three to six, the Court had to consider whether this change would, on the balance of probabilities, give rise to a real or not-remote chance or possibility of causing a properly made submission objecting to the proposed changes.
For guidance, the Court referred to previous properly made submissions in relation to the development to identify whether the proposed changes dealt with any of the issues that were identified. The Court found that the proposed changes dealt favourably with the issues in the eight properly made submissions received during the assessment of the original development applications which generally related to setback distance and environmental concerns. These matters were addressed by reducing the number of lots on the eastern boundary and increasing the areas for vegetation and reserves in stage 3.
Upon consideration of these issues, the Court was satisfied that the proposed changes were permissible changes.
Regardless of whether a proposed change will result in an improved quality of development, when deciding if the proposed change is a permissible change under the Sustainable Planning Act 2009, the Court will still consider whether the proposed changes will result in a substantially different development and consider the likelihood of the proposed changed development causing a person to make a properly made submission if the circumstances allowed.