Environment and Planning – Practice Direction 19: Minor Variations

A new Practice Direction has been published under section 42 of the Planning, Development and Infrastructure Act 2016 (Act) addressing the concept of a ‘minor variation’ where that term appears in the Act and the Planning, Development and Infrastructure (General) Regulations 2017 (Regulations).

The new Practice Direction 19 Minor Variations (Practice Direction) is available to read here.

The Practice Direction describes the particular assessment considerations for determining if a matter is in the nature of a ‘minor variation’, both in the context of Deemed-to-Satisfy (DTS) assessment and variations to existing planning consents.

Minor variation from DTS criteria

Clause 6 of the Practice Direction addresses the consideration of a minor variation from DTS criteria under the Code, in accordance with section 106(2) of the Act.

In particular, the clause requires the relevant authority to be satisfied that:

• the extent (if any) to which the variation departs from a measurable feature of the DTS criteria is insignificant; and
• the extent (if any) to which the variation will impact adjacent land is insignificant; and
• the effect of the variation will not be contextually important

in determining that the variation (or multiple variations) is minor (clause 6(1)).

Additionally, clause 6(2) provides that if a particular variation results in a departure from another DTS criterion, then clause 6(1) must be considered in respect of that departure as well. Clause 6(3) further provides that where more than one variation to DTS criteria is considered, each variation must satisfy the criteria under clause 6(1) to be considered a minor variation.

Finally, clause 6(4) describes the circumstances that will not constitute a minor variation, namely, where the variation would trigger public notification or a referral requirement.

Minor variation to an existing planning consent (section 128(2)(b) and regulation 65)

Clause 7 of the Practice Direction addresses the consideration of a variation to, specifically, an existing planning consent that is minor in nature, in the context of section 128(2) of the Act and regulation 65 of the Regulations.

As with clause 6(1), clause 7(1) sets out the following criteria that the relevant authority must satisfy itself of when determining if a variation is minor in nature:

• the variation is insignificant; and
• the extent (if any) to which the variation will impact adjacent land is insignificant; and
• the effect of the variation will not be contextually important.

Clause 7(2) requires the relevant authority to take into account any previous variations to an element or ‘aspect of a planning consent’, and provides that the relevant authority must consider the subsequent variation in comparison to the original (unvaried) planning consent.

Clause 7(3) further requires the relevant authority to take into account all variations that have occurred over time, and must be satisfied that, when considered together, the cumulative effect of those variations ‘is minor in nature in comparison to the original planning consent (prior to any variations)’.

In similar terms to clause 6(4), clause 7(4) sets out the circumstances in which a variation cannot be considered minor in nature. As with clause 6(4), whether the variation would trigger public notification (clause 7(4)(b)) or require external referral (clause 7(4)(c)) are determinative that a proposed variation is not minor in nature. Where the proposed variation concerns or relates to a condition imposed by a referral body, that will also preclude the variation from being considered minor unless the relevant authority already has prior support from the referral body in relation to the proposed minor variation (clause 7(4)(e)).

In addition, a variation to a planning consent will not be considered minor if it would change the assessment pathway or the essential nature of the proposed development (clause 7(4)(a)) or introduce a new element that requires planning consent (clause 7(4)(d)).

Other requirements

The Practice Direction introduces two new procedural requirements when making an assessment: that the assessment be made as expeditiously as possible (clause 8), and that it be documented in accordance with the prescriptive requirements of clause 9.

Take home messages

Whilst providing guidance on the parameters for what can be considered a ‘minor variation’, the Practice Direction introduces a number of consequential procedural requirements that a relevant authority undertaking assessment will be obliged to comply with. Failure to do so may introduce procedural errors that could be subject to review.

It is important for relevant authorities, and delegates of relevant authorities, to understand the requirements of this Practice Direction and how it may impact decision-making where matters involve (or are suspected to involve) minor variations.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.