Changing development approvals for developers and property owners in Queensland

Developers or property owners often need to make changes to a development approval in response to changing market conditions or operational needs. In Queensland, under the Planning Act 2016 (Qld) (PA) a person may apply to change a development approval for either a ‘minor change’ or a change ‘other than for a minor change’ (other change). While the process for making a change application for a minor change is generally simpler, it is subject to the restriction that the proposed changes must be a ‘minor change’ as defined under the PA. This excludes any changes that result in ‘substantially different development’, which typically includes new uses, new parcels of land, dramatic changes to built form, new or increased impacts, or increased infrastructure demands.

Persons wishing to make changes that will result in substantially different development are therefore excluded from using the minor change process but can make a change application for an other change.

Assessment and decision-making framework

A change application for an other change is required to be assessed as if the change application were the original development application, with the changes included, but was made when the change application was made.

A key feature of the assessment for an other change application is that the application is only assessed against matters to the extent that the matters are relevant to assessing and deciding the change application in the context of the development approval.

What this means is that it is only the proposed changes to the development approval that need to be assessed and decided and the assessment does not extend to re-assessing the merits of unchanged parts of the existing approval. The assessment is therefore confined to the changes to the development approval and does not involve any re-assessment of unchanged parts of the approved development.

This requires:

• an identification of the change(s) proposed to the development approval;
• an identification of the planning issues, be they positive or negative, arising from the proposed change(s) to the development approval; and
• an assessment of the planning issues arising from the proposed change(s), having regard to the requirements of the relevant provisions to the extent that they are relevant.

The assessment for an other change application involves more than a mere comparison of approved and amended plans but the actual scope of assessment will be as broad or narrow as the nature of the proposed changes.

Practical example

The scope of the assessment required for a change application for an other change is highlighted in the decision of the Queensland Planning and Environment Court in McEnearney v Council of the City of Gold Coast & Anor [2024] QPEC 32. This case involved a change application to an existing development approval for a mixed-use development comprising 4 buildings up to 16 storeys. Amongst the range of proposed changes, building heights were proposed to be increased from 10 storeys to 14 storeys (Building 2) and from 4 storeys to 7 storeys (Building 3). The height of Building 1 (16 storeys) was unchanged whilst Building 4 (3 storeys) was proposed to be entirely removed. There was also a significant increase of retail/commercial floor space proposed.

Under the Council’s planning scheme, the site was subject to a 3 storey building height overlay and 300 bedrooms per net hectare under the residential density overlay.

In the appeal, a submitter appellant who objected to the change application sought to argue that the proposed changes ought to have been assessed against the relevant assessment benchmarks of the planning scheme with no regard to the approved development. For example:

• the number of bedrooms was proposed to be increased from 490 (approved) to 550 (proposed), being an increase of 60 beds and 12.4% in respect of the approved development whereas the appellant argued the proposed 550 beds was an increase of 103% of the residential density for the site of 272 beds;
• the increase in the height of Building 2 from 10 storeys to 14 storeys under the 3 storey height overlay took the uplift above the 3 storeys from 233% to 367% and the increase in the height of Building 3 from 4 storeys to 7 storeys took the uplift from 50% to 133%.

The appellant thus sought to disregard the approved development and focused on the extent of non-compliances with the assessment benchmarks in the planning scheme. However, the Court noted that this approach failed to have regard to the existing development approval and was contrary to the approach required under the PA.

In particular, in considering the reasonable expectations of the community, the Court found that the existing development approval was of considerable weight and it was not a reasonable expectation that the proposed changes would comply with the relevant assessment benchmarks (such as height and density) where the existing development approval already exceeded these. For example, it was not reasonable to expect that the building heights would comply with the 3 storey building height overlay when substantially higher buildings were already approved for the site.

Key takeaways

Developers or property owners can substantially change development approvals through a change application for an ‘other change’ without having to fully reassess the merits of their proposals and substantial weight can be given to existing approvals, including existing non-compliances with relevant assessment benchmarks.

If you would like to know more about your options to change a development approval, please contact us.

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Authored by: 
Gerard Timbs, Partner
Stafford Hopewell, Special Counsel
Ben Swain, Special Counsel