Planning & Environment Court Update

Permissible Changes - One Change Too Many?

The Sustainable Planning Act permissible change mechanism [1] available to developers continues to feature in litigation before the Planning and Environment Court. 

It appears settled that the appropriate benchmark for considering the causal effect of a proposed change is the most recent iteration of a development approval, be that an original approval never the subject of a successful permissible change, or the latest manifestation of a development approval as amended from time to time.  That being said, whether a point could be reached where a series of approved permissible changes result in a development substantially different from that originally approved, has provoked what has been described as divergent views from the judges of the Planning and Environment Court. 

The early view is that the permissible change process should not permit a developer to incrementally change a development approval by a series of requests, and create a development which is substantially different to that originally approved.  That is, the decision maker ought be mindful that the permissible change process should not circumvent the requirement for a development application by allowing a substantially different development to evolve by incremental change. [2]

A later view held by a second judge of the court expressed disagreement with the earlier analysis of the point, instead finding that the approval against which the change ought be measured in all cases is the development approval in place at the time the request to change is made, and that the proposed changes are to be assessed solely by comparing those further changes with the approval in its most recently modified form.[3]  That is, the permissible change test prescribed by the Act is not a double-barrelled one involving an initial comparison between the latest iteration of the development approval and the proposed changes, and a second consideration of the cumulative effect of all changes that have been approved since the approval was originally issued. 

The most recent view expressed by a third judge of the court offers support to the early view.  Instead of approaching the issue from the perspective that the early view proffered a double-barrelled test, it was thought that the cumulative effect consideration was more a kind of check and balance in the exercise of the decision maker's discretionary power to approve permissible change requests.[4]  Relying upon earlier decisions of the court in respect of the power to modify an approval and the observation that the power affords flexibility which, within limits, is desirable [5], this third view sought to reinforce that there ought be limits to the changes which may appropriately be approved to a development approval, and in some cases, notwithstanding that the benchmark for the permissible change test is the most recent manifestation of the approval, it will be appropriate to consider the original approval, in determining whether what is proposed in the permissible change request would, or would not, because of the change, result in a substantially different development. [6]

For now at least, what this means for Councils is that in exercising its discretionary power to decide a permissible change request, circumstances may require consideration of the cumulative effect of previously approved changes to a development approval, and whether incremental change has resulted in a new development substantially different to that originally approved. 

For assistance with consideration of such issues Council can contact our office.

1. The permissible change process is set out in Chapter 6, Part 8, Division 2, Sections 372 to 377 of the Sustainable Planning Act 2009 (Qld).
2. Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [44] and [54]; see also Forde v Toowoomba Regional Council [2016] QPELR 259 at [21].
3. Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53 at [44], [16] and [17]. 
4. Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 68 at [15]. 
5. Heilbronn & Partners Pty Ltd [2004] QPEC 80; (2005) QPELR 386 at [21] and [22]. 
6. Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 68.