A variation request is a request to vary the effect of a local government's planning scheme for a particular development. It is made as part of an application for a preliminary approval. While often confused with the 'rezoning' applications that existed under previous legislation, it is different in many ways and a powerful tool for complex developments. If approved, a variation request effectively changes the operation of the planning scheme for the premises, for example by lowering the levels of assessment for future development, or changing the assessment benchmarks against which future development will be assessed.

The decision of Yaralla Sports Club v Gladstone Regional Council [2021] QPEC 74 is a timely reminder that a variation request can only be applied for if there is also a development application for a preliminary approval for some form of development. The decision also confirms that the Court may consider and approve a 'minor change' to a variation request in the same way as any other development application.

Yaralla Sports Club Inc (Yaralla) lodged a development application (DA) with the Gladstone Regional Council (Council) in November 2020. According to the town planning report, the DA was for 'a Variation Request – Short Term Accommodation & Material Change of Use (MCU) and Building Works for a new Theatre' on land in Barney Point, Gladstone. The Council approved the MCU, but refused the variation request.

Yaralla appealed the decision to the Planning and Environment Court. Following a without prejudice conference, Yaralla lodged a minor change application. Two threshold issues arose in respect of the change application:

• Firstly, did the variation request form part of a valid DA for a preliminary approval?
• Secondly, can the Court consider a change to a variation request?

For the reasons below, the Court's response to both threshold issues was yes.

Variation requests cannot be lodged in isolation

Section 50(3) of the Planning Act 2016 (Qld) (Planning Act) states that a DA for a preliminary approval 'may also include a variation request.' A proponent must therefore have a DA for a preliminary approval if it wants to include a variation request.

Yaralla applied for a preliminary approval

Yaralla's town planning report was poorly worded, and at first glance, appeared to indicate that the DA was for a bare variation request.

The Court was nevertheless satisfied that the variation request formed part of a DA for a preliminary approval. In particular, the Court found that the DA Form 1 indicated that a preliminary approval was sought, and Council's confirmation notice included reference to a preliminary approval.

However, the Court emphasised the importance of paying close attention to the wording of DAs to ensure they clearly state what is intended to be applied for. The failure to do so may have far-reaching consequences, including that the assessment manager may be devoid of authority to decide the DA.

Court can consider a minor change to a variation request

Section 46(3) of the Planning and Environment Court Act 2016 (Qld) (PEC Act) allows the Court to consider a minor change to a DA. A DA is an application for a development approval, which can be either a preliminary approval, a development permit, or a combination of both. A preliminary approval is defined in section 49(2) of the Planning Act to mean that part of a decision notice that approves development but does not authorise the carrying out of assessable development.

A variation request does not approve development. Consequently, it appears at first glance that a variation request does not form part of a DA. However, the Court was not satisfied that the statutory scheme supported that view. In particular:

• Both 'variation approval' and 'variation request' are defined in Schedule 2 of the Planning Act to mean 'part of' either a preliminary approval or a DA.
• Section 50(3) of the Planning Act states that a DA for a preliminary approval may include a variation request.
• When assessing and deciding a variation request, the variation request is taken to form part of a properly made DA.
• Treating a variation request as distinct from a DA would have consequences for the appeal rights of applicants.

Consequently, the Court held that a variation request forms part of a DA for the purposes of the Planning Act and section 46(3) of the PEC Act, with the effect that the Court can consider a minor change to a variation request.

The proposed changes were minor

A minor change is essentially a change that will not result in substantially different development. The Court ultimately exercised its discretion in favour of Yaralla and allowed the application on the basis that the proposed changes did not, individually or collectively, result in substantially different development.