Attachment 2 - Letter from Thomson Geer · 132007.12.8

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6          The Substantially Different Development Test

6.1        The "substantially different development" test has formed part of Queensland planning law for
           some time now. Whilst the recent introduction of the Planning Act has amended the process for
           changing development approvals (together with other changes to the development assessment
           and approval regime), the "substantially different development" test is not a matter that has been
           the subject of amendment in the new Planning Act.

6.2        Whether a change to an approval will result in a "substantially different development" is a
           question of the nature and scale of the change to be determined in the circumstances of each
           individual case. Whether a change results in a substantially different development is a matter
           which should be looked at broadly and fairly.2

6.3        "Substantial” is defined in the Macquarie Dictionary as:

                  “… 7. relating to the substance, matter, or material of the thing. 8. Of or relating to the
                  essence of the thing; essential, material, or important …”

6.4        Schedule 1 of the Development Assessment Rules (DA Rules) provide the following guidance
           with respect to the phrase "substantially different development":

           3.     In determining whether the proposed change would result in substantially different
                  development, the assessment manager or referral agency must consider the individual
                  circumstances of the development, in the context of the change proposed.

           4.     A change may be considered to result in a substantially different development if the
                  proposed change:

                  (a) involves a new use; or

                  (b) results in the application applying to a new parcel of land; or

                  (c) dramatically changes the built form in terms of scale, bulk and appearance; or

                  (d) changes the ability of the proposed development to operate as intended; or

                  (e) removes a component that is integral to the operation of the development; or

                  (f) significantly impacts on traffic flow and the transport network, such as increasing traffic to
                      the site; or

                  (g) introduces new impacts or increase the severity of known impacts; or

                  (h) removes an incentive or offset component that would have balanced a negative impact of
                      the development; or

                  (i) impacts on infrastructure provisions.

6.5        The matters noted in point 4 of Schedule 1 of the DA Rules are effectively identical to the former
           Statutory Guideline that was in place under the terms of the Sustainable Planning Act 2009. In
           the context of that Guideline, the Court made the following comments:3

           Although it will depend on the individual circumstances of the development, the following list
           identifies changes that may result in a substantially different development and would, therefore,
           not be a minor change or permissible change under the SPA. This list is intended as a guide to
           assist assessment managers and applicants to determine whether a change will result in a
           substantially different development and is not intended to be exhaustive.


2 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510.
3 Ibid, at 511.




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