06/0823 - Proposed change to development approval · 132006.823.04

Sunshine Coast Regional Council
7 November 2008

 

7. There is no change in the intensity of the use or the site population density.
8. There is no visual change to the development in any respect.
9. There are no external impacts.

What, then, is the effect of the change? It is a very limited effect in our opinion. It would mean that
the 54 affected dwelling units could be:

* occupied by permanent residents, i.e. full-time owner occupiers;

¢ occupied by semi-permanent residents, i.e. owner occupiers who put their unit into the
resort rental pool for part of the year;

e occupied by resort guests all or most of the time because the unit is put into the letting pool
all or most of the year.

These consequences involve only a slight variation in the use, in our opinion. They do not involve
starting a new use, nor do they invoive a material change in the scale or intensity of the use.

In particular, in terms of the definition of “minor change” in Schedule 10 of the IPA the variation
wouid not result in:

¢« any requirement to refer the application to additional concurrence agencies;
« the assessment level changing from code to impact assessment;
¢ any person being caused to make a submission objecting to the proposal.

Turning to s. 3.5.33 which concerns changing development conditions, for the same reasons the
change to the wording of condition 23 does not give rise to any assessable development in the form
of a material change of use being either the start of a new use or a material change in the scale or
intensity of the use. It cannot be said that the change results in a different development proposal
such as requires development approval preceded by the normal assessment process. The Court’
has held that in respect of $3.5.33(1}(b), the approach to be adopted:

“should be understood to mean that the proposed changes to any condition of approval would
not give rise to a form of development that was so different to the original as to require
independent assessment as assessable development within the meaning of the Act.”

We note the Council's view expressed in its letter of 31 October 2008 that “the request seeks to
introduce a new use”. In response to that assertion we make the following points:

1. Firstly, for the reasons outlined above, no new use is proposed. The use is exactly the same
despite the different definitional treatment of multiple dwellings in the Planning Scheme.

2. Secondly, the question of “minor change” must be approached in accordance with the
definition of that term in Schedule 10 of the Act, rather than from the perspective of the
Planning Scheme’s definitions. In that regard the touchstone is whether the change would
attract submissions objecting to it. Bearing in mind the originally advertised and assessed
proposal, plainly it would not, in our opinion. On no rational view of the nature and effect of
the proposed change would it be thought that a hypothetical potential objector? would object
to an impact assessabie application incorporating solely this change. Consequently s. 3.5.24
of the IPA is capable of operating for the purposes intended here. In any event, whether the
proposed change is likely to attract an adverse submission that was not provoked by the
proposal in its original form is but one of the number of considerations the Council should

" Rose Bay Developments Pty Ltd v Bowen Shire Council & Anor [2001] QPELR 340; Rhema
Management Services Pty Ltd & Anor v Noosa Shire Council [2000] QPELR 15

? Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409 at [11]; Sinnamon v Miriam Vale
Shire Council (2003) QPELR 195 at 198; Ryan & Anor v Brisbane City.Council & Ors (2005) QPELR
544 at [10]

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