Attachment 2 - Letter from Thomson Geer · 132007.12.8

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         A change may result in a substantially different development if the proposed change:

         •         involves a new use with different or additional impacts;

         •         results in the application applying to a new parcel of land;

         •         dramatically changes the built form in terms of scale, bulk and appearance;

         •         changes the ability of the proposal to operate as intended. For example, reducing the
                   size of a retail complex may reduce the capacity of the complex to service the intended
                   catchment;

         •         removes a component that is integral to the operation of the development;

         •         significantly impacts on traffic flow and the transport network, such as increasing traffic to
                   the site;

         •         introduces new impacts or increases the severity of known impacts;

         •         removes an incentive or offset component that would have balanced the negative impact
                   of the development;

         •         impacts on infrastructure provision, location or demand.’

         It may be noted that the list provided in the guideline is a list of those changes which "may" result
         in a substantially different development. It is not the case that a change of the kind there listed is
         necessarily to be judged to be substantially different.

         It may also be noted that the list is not intended to be exhaustive. There may be other changes
         not listed in the guideline which, in a particular case, can be judged to be more than minor, in that
         it involves a substantially different development. It may also be noted that the focus of the list in
         the guideline is, in some respects, on changes that would involve new, additional or increased
         impacts, rather than on changes which tend to ameliorate impacts.

6.6      In a separate case discussing the application of that same Guideline, the Court noted that:4

         The guideline is no more than that. The examples given are not exhaustive, nor are they
         determinative – they are simply some examples of changes that may result in substantially
         different development, depending on the individual circumstances of the case. The assessment of
         whether a proposed change would, or would not, result in a substantially different development
         involves matters of fact and degree, to be considered broadly and fairly, having regard to the
         overall development application. It is relevant to consider the changes from a qualitative as well
         as a quantitative perspective; and to consider both tangible and intangible impacts. It has been
         observed that the Court will scrutinise more critically those changes which have the potential to
         raise new or additional impacts, not dealt with at the development application stage.

6.7      Although each case will depend on its own facts, the Court has been prepared to adopt a
         generous approach in considering what is a substantially different development, including the
         following:

         (a)       An increase in the number of proposed residential low density zoned lots from 224 as
                   publicly notified to 298, an increase of 74 lots but those lots being contained on a smaller
                   development footprint;5

         (b)       The addition of a third level of residential to the original proposal for two levels above
                   parking in a series of buildings, resulting in an increase from 96 to 125 dwellings (30%);6


4 Multus Pty Ltd as Trustee for the Multus Trust Trading as Maxime v Rockhampton Regional Council & Ors [2016] QPEC 22 at [11].
5 Auspacific Engineers P/L v Scenic Rim Regional Council & Ors [2010] QPEC 117.




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