In Philip Usher Constructions Pty Ltd v Logan City Council [2026] QPEC 33, the Planning and Environment Court dismissed a challenge to the validity of a confirmation notice, confirming that where an applicant changes a development application in a way that is not a minor change, the assessment process stops and restarts, the council must reassess whether the changed application is “properly made,” and a new “properly made” date applies. Williamson KC DCJ held there was no legal error in the notice, which recorded the properly made date as 10 November 2025 rather than the original 25 August 2020.
The date on which an application is “properly made” is not a technicality. Under s 45(7) of the Planning Act 2016, a development application is assessed against the planning controls in effect when it was properly made, so the date determines which version of the planning scheme applies. In that respect the decision sits alongside X-Elio Sixteen Mile Solar Farm Pty Ltd v Western Downs Regional Council [2026] QPEC 31, which we wrote about recently. Both decisions show that the point at which an application crystallises determines the legal framework applied to it, and that an applicant can be exposed to intervening change in the law.
Background
In August 2020 the applicant made an impact assessable development application to reconfigure land at Wembley Road, Browns Plains, from two lots into 83 residential lots, with drainage reserve, park and roads. Landowner’s consent was given only for the reconfiguration. The council was satisfied the application was properly made and gave a confirmation notice recording a properly made date of 25 August 2020. More than five years later, in responding to an information request, the applicant changed the application to add a new form of assessable development, namely a material change of use for 134 multiple dwellings (townhouses). The council found the change was not a minor change, which stopped the process and returned it to the start of the confirmation period. It reassessed the changed application against ss 51(5) and (6), issued an action notice requiring landowner’s consent for the material change of use and an additional fee, and, once satisfied, gave a fresh confirmation notice recording a properly made date of 10 November 2025.
The legal issue
The applicant contended the confirmation notice was invalid because it should have retained the original 2020 date. Its argument was that the council could only reassess whether the application was properly made under s 51 where the change engaged the landowner’s consent criteria in s 52(2)(b) of the Planning Act, which was not engaged here, and that the Development Assessment Rules could neither compel nor authorise the council to act otherwise.
The Court’s reasoning
Williamson KC DCJ rejected the argument, holding that s 52 was “the key that unlocks the dispute.” The effect of a change on the assessment process depends on the type of change, that is, whether it is a minor change, and not on whether s 52(2)(b) is engaged. Section 52(3) provides that a minor change does not affect the process; the Act is deliberately silent on the effect of a change that is not a minor change, leaving that to the Development Assessment Rules made under s 68. The Rules provide that a change which is not a minor change stops the process and returns it to the start of the confirmation period, during which the assessment manager must consider whether the application is properly made under ss 51(5) and (6), and a confirmation notice can only be given for a properly made application. Sections 51 and 52 do not “cover the field” and do not constrain the Rules, and the purpose of s 52(2)(b) is simply to state a landowner’s consent requirement for an applicant giving notice of a change, not to limit the reassessment of properly made status. The council had asked the correct question, and its finding that the changed application was properly made on 10 November 2025 was correct.
The decision
The Court held that the confirmation notice was valid and would stand, that the applicant had not discharged its onus, and that the originating application was dismissed.
Why this decision matters
The decision confirms that adding a new form of development to an application by way of a change is not a route to preserving an earlier, and possibly more favourable, “properly made” date. A change that is not a minor change resets the confirmation period and the properly made date, and exposes the changed application to the planning controls current at the new date, here, controls that had moved on across the intervening five years. The properly made assessment, including landowner’s consent and the payment of fees, is reapplied to the application as changed.
Practical implications
For applicants, the timing and content of a change matter a great deal. Introducing a materially new component, such as a material change of use added to a reconfiguration, will not carry the benefit of the original lodgement date, may bring the application under a less favourable current scheme, and will trigger fresh consent and fee requirements. Where preserving an early assessment date is important, an applicant should consider carefully whether a change is truly minor, or whether a fresh, separate application is the better course. For councils, the decision supports reassessing properly made status, and re-dating the confirmation notice, whenever a change that is not a minor change is made.
A note on this update
This article is a general summary and is not legal advice. We can advise applicants and councils on change applications, minor change assessment, properly made status and confirmation notices, and on how the applicable planning controls are fixed for a particular application.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.