Advertising & Development Applications Amendments

Robert Holbrook, Associate at Simmons Wolfhagen Lawyers, untangles a recent decision by the Tasmanian Supreme Court which determined how developers and Councils should approach amendments to development applications, and the appropriate advertising requirements for such applications.

Tomaszewski v Hobart City Council [2020] TASSC 48

This Supreme Court decision is important because it clarifies how Councils should respond to requests to amend development applications prior to determination by the planning authority, including after advertising. Amendments are at the discretion of the Council and can only validly occur via the imposition of an appropriate permit condition. Proposed amendments cannot result in a ‘substantially different’ development application. The common practice of readvertising amended development applications has no legal effect and should stop.

Background Facts

This decision concerned an appeal to the Supreme Court of Tasmania (the “Court”) on the basis that the Resource Management and Planning Appeal Tribunal (the “Tribunal”) made errors of law in its decision – P Tomaszewski and R Heath v Hobart City Council and Willar Pty Ltd and Anor [2020] TASRMPAT 5.

Willar Pty Ltd (the “Developer”) applied to the Hobart City Council (the “Council”) to undertake development, including the extension of an existing building. This application went through the usual notification and advertising process. The Developer later submitted revised plans to Council prior to the planning authority considering the application. The revised plans were re-notified and re-advertised by the Council and the Developer was ultimately granted a planning permit. One of the permit conditions required compliance with the revised plans.

The Councils decision to grant the permit was appealed to the Tribunal and subsequently the Court. As part of the decision the Court clarified when and how amendments to development applications can validly occur and generally considered the lawfulness of the process of re-advertising development applications.

Alteration of Proposed Use or Development by Permit Condition Only

The Court held that amendments of a proposed use or development that has not yet been determined by the planning authority can only be achieved via a permit condition imposed by the Council pursuant to section 51(3A) of the Land Use Planning and Approvals Act 1993 (the “Act”). Such a condition could require the development application to be undertaken substantially in accordance with revised or amended plans.

If the amendment(s) would transform the original proposal into something ‘substantially different’ there is no power to impose such a condition and the application must be refused. Whether an amendment is substantially different must be determined objectively on a case-by-case basis. Essentially where an amendment would result in a substantially different use or development a new development application is required.

The Court considered that a powerful indication as to when an amendment results in a substantially different development application is where there is reason to think that members of the public might wish to make further representations relating to the modified proposal.

Readvertising Cannot Occur

The Court also found that re-advertising development proposals was not permitted by section 57(3) of the Act. The process of notification, public display, representations and the considerations of representations for discretionary applications can only be validly undertaken once in accordance with the Act.

While there is nothing in the Act to prevent Councils from inviting further representations in whatever manner it chooses, including readvertising, any representations received in response have no legal effect. This means that the Council is not required to consider them as part of determining the application and no appeal rights attach to such a representation.

Outcome

The key outcome from this decision is that the amendment of the development application will always be at the discretion of the planning authority via the imposition of a permit condition. However, amendment(s) cannot result in a substantially different application. Councils should only advertise discretionary development applications once as required by the Act.

If you require assistance, please contact our Local Government, Planning and Development Law team or Robert Holbrook directly in our Hobart office on 03 6226 1200. Alternatively contact our Launceston office on 03 6338 2390 or Kingston office 03 6226 1200.

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