Court declares local government the responsible entity for a change application for a minor change to a development approval granted by the Court

The Planning and Environment Court dismissed an application made by an applicant Steven Becker seeking a declaration that the Court was the responsible entity for a change application for a minor change to a development approval which was originally granted by the Court. This decision has implications for developers and local government moving forward in relation to who the responsible entity is for a change application for a minor change to a development approval.

Implications

• The Court is the responsible entity for a change application for a minor change to a development approval under section 78 of the Planning Act 2016 only in circumstances where:
  • he change application is for a minor change;
  • the development approval was given because of an order of the Court; and
  • there were properly made submissions for the development application.

• In circumstances where those requirements are not met, the local government is the responsible entity, for example, the local government would be the responsible entity for a change application for a minor change to a development approval which required code assessment and was granted by the Court.
• The Court did not have the power under the Planning and Environment Court Act 2016 to exercise its discretion and determine the change application.
• This is contrary to the position under the Sustainable Planning Act 2009, whereby the Court was the responsible entity for a request to a permissible change to a development approval which was granted by the Court.

Decision

The applicant Steven Becker made an application to the Court which purported to be a change application under section 78 of the Planning Act 2016. At the hearing of the application, the applicant drew to the Court’s attention whether it had the power to decide the application. The key issue related to whether the Court or alternatively the Brisbane City Council was the responsible entity to whom the change application ought to have been made to.

• Section 78 of the Planning Act 2016 relevantly provided that:
• a change application must be made to the responsible entity;
  the Court is the responsible entity if:
  • the change application is for a minor change; and
  • the development approval was given because of an order of the Court; and
  • there were properly made submissions for the development application;

• otherwise, the responsible entity is the assessment manager.

The parties agreed that the change application was for a minor change, the development approval was given because of an order of the Court and there were no properly made submissions to the development application.

The Court determined that the responsible entity was the Brisbane City Council as if it was the intention of the legislature for the Court to be the responsible entity for all minor change applications involving a development approval granted by the Court, the provision would have stated so. The Court also drew reference to other sections in the Planning Act 2016 which supported the Court’s determination.

The applicant then subsequently asked the Court whether it could exercise its discretion under section 37 of the Planning and Environment Court Act 2016 and approve the application given the Council was not opposed to the granting of the application. However, given the extensive obligations involved in the change application process, the Court was not prepared to exercise its discretion.

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