A change to a proposed service station, carwash facility and drive through restaurant was declared to be a minor change

The Planning and Environment Court in King of Gifts (Qld) Pty Ltd & Anor v Redland City Council & Anor [2017] QPEC 15 declared that a change to a proposed service station, carwash facility and drive through restaurant was a minor change.

The changes to the proposed development comprised the following:

• refining the onsite sewerage treatment regime by increasing the above ground effluent disposal area from 2,100m2 to 5,060m2 and utilising the subsurface irrigation area;
• making provision for the emergency removal of treated effluent by tanker during periods of excessively high rainfall;
• including fauna exclusion fencing.

The Court determined that the proposed changes did not result in a substantially different development and therefore declared that the changes were a minor change.

Snapshot of the Court’s consideration and findings

King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd filed an appeal in the Court against the Redland City Council’s refusal of the development application for a development permit for a proposed service station, carwash facility and drive through restaurant in Alexandra Hills.

During the course of the appeal, King of Gifts and HTC Consulting sought a declaration from the Court that the proposed changes to the application were a minor change.

The Court noted that it must not consider a change to the application, unless the change was a minor change. The meaning of a minor change was set out under section 350 of the Sustainable Planning Act 2009 and relevantly stated that a minor change in relation to an application was a change that would not result in a substantially different development.

The only change of significance as that proposed was the increase in the proposed above ground effluent disposal area. The change was proposed in order to address the requirements of the Department of Environment and Heritage Protection which was a concurrence agency to the application.

The Court determined that the proposed changes to the application were not a substantially different development and therefore were a minor change having regard to the following:

• the question was not whether the proposal, as changed, was acceptable or not, as that would be a matter for debate at a later merits hearing;
• the test of determining whether the change was a minor change must be applied in the context of the development application as a whole;
• a comparison of the current plan with the proposed plan showed that the subsurface irrigation area would be contained within the same general area of open space on the land;
• the changes were merely design solutions to incidental aspects of the proposed development.

Points worth noting

When making a change to a development application during an appeal, the question is not whether the proposal, as changed, is acceptable or not, rather it is whether the change is a minor change under the Sustainable Planning Act 2009.

The test of determining whether a change is a minor change must be applied in the context of the development application as a whole.