Are there any recent P&E Court decisions that deal with minor changes that planners should be aware of?
The Planning and Environment Court’s recent decision in Jland Australia Pty Ltd v Logan City Council [2026] QPEC 20 serves as a useful reminder that there is a limit to how much a development proposal can be redesigned during an appeal before it ceases to be a “minor change”.
The appeal concerned a proposal for 101 townhouses at Bethania. During the course of the appeal, flooding emerged as a significant issue. In response, the Appellant sought to substantially redesign the proposed development by introducing extensive flood mitigation works, including flood walls, a bund, road reconstruction works and significant changes to levels and earthworks.
The problem was not necessarily whether those changes improved the proposal. The problem was that the changes fundamentally altered it.
The key issue was whether the changes resulted in a “substantially different development”. The case law on this point is well established. Whether a change is ‘minor’ is a question of fact and degree, to be considered broadly and fairly, with guidance drawn from Schedule 1 of the DA Rules.
In the Jland case, the Court found that the proposed flood mitigation measure introduced substantial new physical works into an adjoining retirement village, altered the visual character of parts of the site and changed how portions of the development would function. In those circumstances, the Court had little difficulty concluding that the amendments would result in a “substantially different development” and therefore could not be characterised as a minor change.
In reaching that conclusion, her Honour Judge Kefford reinforced an important principle that is sometimes overlooked in practice. The appeal process is not an opportunity to continually redesign a proposal until an acceptable outcome is reached. While the Court can consider changes to a development application, there remains a threshold that must be maintained. Once proposed amendments fundamentally change the nature, scale or operation of the development, the jurisdictional hurdle becomes difficult to overcome.
This decision is also a cautionary tale from a procedural perspective. The Appellant obtained multiple extensions of time, repeatedly failed to comply with court-ordered deadlines and ultimately conceded that the minor change application before the Court was “doomed to fail”. The Court dismissed an adjournment application, refused the minor change application and ordered the appellant to pay the Council’s costs, including indemnity costs for part of the proceeding.
For planners, the practical lesson is, if emerging technical issues require a proposal to be fundamentally redesigned, it is worth stepping back and asking whether the changes are truly capable of being advanced as a minor change. This decision demonstrates that there comes a point where the better course may be a fresh application rather than attempting to salvage a substantially different proposal through the appeal process.
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Mitchell Osborne MPIA
Partner
Mullins Lawyers
07 3224 0212 | 0411 848 356
[email protected]
Mitchell is a Planning and Environment Partner in our Property team, bringing over 15 years of specialist experience in environment, planning, and construction law. He is also a qualified town planner, giving him a unique perspective on the intersection of planning policy, legal frameworks, and practical project delivery. Mitchell advises developers, landowners, construction professionals, local and state government authorities, and submitters on a broad range of planning, development, construction, and environmental matters, including litigation in the Planning and Environment Court.
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