Minor Change… but a Major Problem?

Planning and Environment

minutes reading time

DATE PUBLISHED: April 19, 2021

Now more than ever, decisions in the Planning and Environment Court are becoming more complex to resolve, taking longer and costing more.

This is a fair assumption to make, with the reasons being:

  •  Recent Court decisions have made it clear that comprehensive and high-quality supporting evidence is required in minor change applications, irrespective of the significance or complexity of the change in the context of the development approval.1  Well-prepared and comprehensive evidence from expert witnesses is usually necessary.
  • The Planning Act provides an extremely broad range of matters that may be taken into account in decision making, and the influence that those matters have on a decision (or the weight which they are given) is at the absolute discretion of the Court. 
  • The approval pathway for proposed changes requires careful consideration given that legal complexities can arise, for example:
    •  in an appeal about a minor change application, the Court has limited power to approve ‘changes to a change application’, where the ability to give effect to changes to a change application is generally limited to, or aligned with, exercise of discretion to vary or impose new approval conditions.2  This can present difficulties in giving effect to practical and efficient outcomes that might be agreed between parties to resolve a dispute in a change application appeal, and a fresh change application can be necessary to give effect to any agreement in some circumstances (which can present its own difficulties); and
    • even where the result of a proposed minor change is uncontroversial, the Planning Act creates uncertainty about whether changes to laws that would trigger a new referral or a new matter for a referral agency to consider standing in the way of approval of the proposed change.3
  •  Overcoming the threshold question of whether or not a proposed change meets the definition of a minor change only gets you to the starting line.  The question of whether or not you win the race (so the change is approved) requires further assessment in regards to the very broad range of matters and vast discretion of the decision-maker mentioned above. 

McInnes Wilson Lawyers have demonstrated recent success in complex minor change applications and would be pleased to help you also. 
 

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1    See Highgate Partners v Sunshine Coast Regional Council [2020] QPEC 19 and Tokyo 2 v Brisbane City Council [2020] QPEC 23.
2    See Ellendale (Qld) Pty Ltd LFT Ellendale (Qld) Unit Trust v Brisbane City Council [2020] QPEC 68.
3    Cleanaway Solid Waste v Ipswich City Council [2020] QPEC 47 at [52] appears to answer the question about the effect of only a change in law.

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