A Queensland council’s refusal to accept a minor change application (and its failure to advise the applicable fee) has been considered procedurally flawed by the Planning and Environment Court. The recent hearing of an Originating Application confirms that a council’s role at the acceptance stage under section 79 of the Planning Act 2016 (Qld) (Planning Act) is confined to formal requirements only – not a substantive assessment of the merits of the proposed change.
Background
Carter Newell’s Planning & Environment Team, led by Partner Fraser Hardman, is pleased to have successfully assisted a client in obtaining favourable orders from the Queensland Planning and Environment Court in relation to a disputed minor change application made to a local authority.
The matter concerned Council’s refusal to formally accept a change application lodged by our client on the basis that Council’s delegate considered the proposed change was not a “minor change” under the Planning Act. Importantly, Council also refused to advise the applicable application fee, thereby preventing our client from properly paying the fee required to progress the application. As a consequence, our client was effectively denied the ability to obtain a formal decision notice and, in turn, denied access to statutory appeal rights.
Proceedings were commenced on behalf of our client in the Planning and Environment Court at Maroochydore by way of an Originating Application. Our client sought declarations and orders to the effect that Council had erred in refusing to accept the application as a properly made change application for a minor change to an existing development approval. Orders were also sought requiring Council to accept, assess, and decide the application in accordance with the Planning Act.
What are the requirements for minor change applications under the Planning Act 2016 (Qld)?
Section 78(1) of the Planning Act permits a person to make a change application to change a development approval. Such applications must be made to the responsible entity, being the relevant local government authority in this instance, and are to be assessed having regard to section 78A of the Planning Act.
Section 79(1) to (3) of the Planning Act outlines the requirements for a properly made change application, including that the application:
- is made in the approved form;
- is accompanied by the required fee;
- for a minor change application, includes any required pre-request response notice; and
- where applicable, includes the written consent of the owner of the subject premises.
The legislation also imposes additional requirements for certain applications involving development requiring social impact assessment.
Relevantly, section 79(4)(a) of the Planning Act requires the responsible entity to accept a change application if satisfied that the application complies with the statutory requirements contained within section 79(1)–(3).
Our client contended the only reason Council could not have been satisfied the application complied with requirements outlined under section 79 of the Planning Act was because the required fee had not been paid – a circumstance caused solely by Council’s refusal or failure to identify the fee payable.
Importantly, our client further argued that the responsible entity’s task under section 79(4) is fundamentally procedural in nature and does not require the decision-maker to form an opinion by engaging with the substance of the criteria in subsections 79(1) and (2) to be able to assess whether the requirements are met. The requirements simply relate to form. A review of the material comprising an application is sufficient to inform the delegate as to whether or not the application meets those requirements. That task does not require the decision-maker, at the acceptance stage, to substantively determine whether the proposed change satisfies the legal test for a “minor change”. Rather, the acceptance provisions concern whether the prescribed application materials and formal requirements have been satisfied.
Our client submitted that any substantive assessment regarding whether the proposed change constituted “substantially different development” was a matter to be considered during the assessment phase under section 81 of the Planning Act, not at the preliminary acceptance stage.
What did the Court order?
The Court ultimately made orders declaring that Council’s refusal to accept the minor change application be treated as a deemed refusal under section 81A(2) of the Planning Act. This outcome preserved and activated our client’s appeal rights.
The Court also ordered that the proceedings continue as if commenced as an appeal against Council’s refusal, thereby allowing the substantive merits hearing of the application to proceed expeditiously.
Although formal reasons were not delivered, the outcome provides important practical guidance to both applicants and local authorities in the administration and assessment of minor change applications.
What are the implications for councils and applicants?
The proceedings suggest that a responsible entity should not refuse to accept a minor change application merely because it holds the preliminary view that the proposal does not satisfy the statutory test for a minor change. Nor should a local authority refuse to advise or issue the required application fee on that basis. Such an approach risks denying applicants procedural fairness and statutory appeal rights by preventing the issue of an appealable decision.
The practical effect of the Court’s orders reinforces that, where an application complies with the formal requirements of section 79(1) to (3) of the Planning Act, the responsible entity should accept the application, receive or invoice the prescribed fee, and proceed to assess the merits of the proposal. If, following assessment, the authority forms the view that the proposed change would result in “substantially different development” under Schedule 1 of the Development Assessment Rules, the appropriate course is to issue a formal refusal decision, thereby enlivening the applicant’s appeal rights.
Key takeaways for developers and councils
This matter highlights the importance of procedural fairness in the administration of change applications under the Planning Act. The key takeaway is that Council’s role at the acceptance stage is confined to determining whether a change application satisfies the formal requirements of section 79 of the Planning Act. Questions concerning whether the proposed change constitutes substantially different development are properly matters for assessment and determination – not threshold acceptance.
Carter Newell’s Planning and Environment team regularly advises developers, landowners, and proponents on minor change applications, procedural fairness, and appeal rights under the Planning Act 2016 (Qld). Contact Partner Fraser Hardman to discuss your matter.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
