Australia: Planning And Environment Court Of Queensland Holds That Proposed Changes To A Development Application For An Extension To A Landfill Facility And Waste Transfer Station Were Minor

In brief

The case of Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2020] QPEC 47 concerned an application by Cleanaway Solid Waste Pty Ltd (Applicant) to the Planning and Environment Court of Queensland that the proposed changes to the Applicant's development application were minor changes and that the appeal against the decision of the Ipswich City Council (Council) to refuse the development application (Appeal) be determined using the development application plans as changed. 

The Court considered the expert evidence before the Court and the arguments of Dr Turni (Third Co-Respondent) and concluded that the proposed changes did not result in "substantially different development" and would not cause a matter referred to in subparagraph (a)(ii) of the definition of "minor change" in  schedule 2 of the Planning Act 2016  (Planning Act) to apply.

Development application for expansion to a landfill facility and waste transfer station and the proposed changes

The development application the subject of the Appeal was for an expansion to a landfill facility and waste transfer station at Chum Street and Rhondda Road, New Chum.

The Court summarised the proposed changes to the development application, which relevantly included the following (at [19]): 

• greater detail and clarification of specific elements of the development application;
• changes to the landform contours which change the level but not the overall volume or peak height of the landfill; 
• relocation of the proposed leachate pond and the configuration of the sediment basins; 
• introduction of temporary screening bunds to provide greater screening of the landfill;
• changes to the rehabilitation strategy; and 
• correction of design errors. 

Minor change application requirements

The Court noted the definition of "minor change" in schedule 2 of the Planning Act and that the following elements of the definition were in dispute:

Whether the proposed changes resulted in a "substantially different development"?

After considering the definition of "minor change" in the Planning Act, the Court noted the following reasons and concluded that the proposed changes did not result in a substantially different development as the proposed changes (at [22] to [26]):

1. will not result in a new use;
2. will not change the nature, scale and intensity of the material change of use sought in the development application;
3. will not change the manner in which the use is intended to operate;
4. will achieve the following objectives:
5. 1. provide design detail;
   2. ameliorate visual impacts;
   3. ameliorate impacts on environmental values;
   4. improve environmental rehabilitation;
   5. improve the design of stormwater and leachate management measures; and
   6. correct errors.

Court did not accept the arguments of the Third Co-Respondent in opposition to the minor change application 

The Court addressed the following arguments of the Third Co-Respondent as follows:

1. The proposed changes are not clearly defined.
   
   The Court noted that the proposed changes were clearly expressed in a large body of expert evidence which examined the consequences of the proposed changes.
2. The evidence is unreliable as the experts have only provided provisional assessments.
   
   The Court confirmed that the plans of the proposed changes were not suitable for construction purposes and were not completely finalised in all respects. However, the Court noted that there was sufficient detail for the relevant experts to form concluded views.
3. A new assessment is required by relevant entities including the Council, the Department of State Development, Manufacturing, Infrastructure and Planning (DSDMIP) and the Environmental Protection Authority.
   
   As all the parties in the Appeal were required to review the proposed changes in accordance with  section 10(2) of the Planning and Environment Court Act 2016  (PECA), the Court determined that a review of the proposed changes by the Council and DSDMIP as parties to the Appeal was not an indicator that the proposed changes resulted in a "substantially different development". 
4. The review of the proposed changes will incur additional costs.
   
   The Court did not consider this argument relevant to the minor change application before the Court.
5. Technical matters relevant to the Appeal.
   
   The Court relied on the submissions of counsel that the technical matters were not relevant to the minor change application before the Court and ought more properly be addressed in the Appeal. 
6. Specific elements of the proposed changes were substantially important changes.
   
   The Court referred to the limitation on the Court's power to assess the proposed changes in  section 46(3) of the PECA and the definition of "minor change" in the Planning Act, and stated (at [43]) [underlining in original]:
   
   "Rather, the provisions, taken in combination, permit the court to consider a change where it is satisfied that, inter alia, it would not result in substantially different development. Central to this test is the result  of the change to a development application, rather than the significance of the change itself."
7. Specific elements of the proposed changes are required to be approved in a further approval by the Department of Environment and Science and referred to DSDMIP.

The Court agreed with the expert evidence that no referral was triggered and also noted that a need for a further approval was not an element of the definition of "minor change" in the Planning Act. 

Changes in law to the koala habitat provisions of the Planning Regulation 2017 not engaged

Whilst the development application was properly made before the changes in the law occurred, the Council's counsel nevertheless noted that the current law in relation to koala habitat mapping may now result in an additional trigger to a referral agency.

The Court considered the relevant sections of the Planning Regulation 2017 (Planning Regulation), and noted that the proposed changes fell within a statutory exception and therefore the proposed changes did not give rise to assessable development.

Conclusion

The Court held that the Appeal was to be heard and determined on the basis of the plans as amended in accordance with the proposed changes, for the reason that the proposed changes did not result in a substantially different development and would not cause a matter referred to in subparagraph (a)(ii) of the definition of "minor change" in schedule 2 of the Planning Act to apply. 

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