A new approach to amending development applications to Councils prior to determination

The recent Supreme Court decision of Tomaszewski v Hobart City Council (2020) TASSC 48 addressed an issue frequently encountered by developers; the process for amending an application for planning approval after it is lodged with a Council, publicly advertised, but not yet determined.

Historically, Councils have readvertised amended proposals to ensure compliance with s.57(3) of the Land Use Planning and Approvals Act 1993. This type of readvertising is common practice adopted by most (if not all) Councils in Tasmania.

However, in Tomaszewski v Hobart City Council, the Supreme Court held that:

  • the legislation only allows for one statutory advertisement period; if revised plans are provided to Council then Council is free to provide them to the representors, but it cannot undertake a second statutory advertisement period with consequent representation and appeal rights; and
  • a Council may grant approval to a set of revised or amended plans after the application and original plans have been advertised, by imposing conditions requiring the proposal to be undertaken substantially in accordance with the revised or amended plans.

The key limitation to the above process is that revised or amended plans cannot change or expand the nature or scale of the proposal in question such that the revised proposal is substantially different from that which was originally applied for; this is an objective test and must be applied on a case-by-case basis.

If you have any queries or would like further information regarding this article, please contact:

Anthony Spence SC
Principal
M: 0400 545 503
E: aspence@pageseager.com.au

Marc Edwards
Senior Associate
M: 0407 205 719
E: medwards@pageseager.com.au

Published: 24 February 2021

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