Ausco Modular Pty Ltd v Western Downs Regional Council - [2025] QPEC 1

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Ausco Modular Pty Ltd v Western Downs Regional Council [2025] QPEC 1

PARTIES:

AUSCO MODULAR PTY LTD

(Applicant)

v

WESTERN DOWNS REGIONAL COUNCIL

(Respondent)

FILE NO/S:

BD1979/24

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

13 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

21 and 25 October 2024 and 10 February 2025

JUDGE:

Kefford DCJ

ORDER:

THE APPLICATION IS DISMISSED.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change an existing development approval to introduce staging – whether the change is a minor change –– whether changes would result in substantially different development

LEGISLATION:

Planning Act 2016 (Qld), ss 73, 78, 78A, 79

CASES:

Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19; [2021] QPELR 112, approved

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied

Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8, [2020] QPELR 1113, approved

COUNSEL:

C Hughes KC, L Walker and S Formby for the Applicant
B Rix for the Respondent

SOLICITORS:

Piper Alderman Lawyers for the Applicant
King and Company Solicitors for the Respondent

TABLE OF CONTENTS

Introduction

What changes are proposed?

What are the legislative requirements for an application to the Court?

Is the application for a minor change to a development approval?

Would the proposed changes result in substantially different development?

Conclusion

Introduction

The Applicant, Ausco Modular Pty Ltd, has a development permit permitting it to make a material change of use for an undefined use (non-resident workforce accommodation – 1,000 rooms) (“the development approval”). The development approval attaches to land at 184 Zeller Street, Chinchilla that is more particularly described as Lot 78 on LY3 (“the subject land”). The approved use has commenced. It operates as “Stayover Chinchilla”.
The Applicant wants to change its development approval. It has applied to this Court to make the change. Western Downs Regional Council (“the Council”) does not oppose the relief sought.
What changes are proposed?
The development approval for non-resident workforce accommodation comprises 1,000 rooms and six laundry units, along with 11 combined laundry and storeroom units in a single stage.
The Applicant describes the proposed changes to the development approval as changes that:
“… introduce staging as follows:
(a)Stage One: 1000 rooms, six laundry units and 11 combined laundry and storeroom units (reflecting what presently exists on the Land);
(b)Stage Two: 856 rooms, three laundry units and 11 combined laundry and storeroom units (which involves the removal of 144 rooms – but not the infrastructure supporting them – on a temporary basis); and
(c)Stage Three: 1000 rooms, six laundry units and 11 combined laundry and storeroom units (thereby returning the full complement of 1,000 rooms as approved).”
The proposed changes also include the insertion of conditions that:
(a)indicate that the conditions in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QPEC 1
Decision Date: 13 February 2025

CaseChat Overview and Summary

Ausco Modular Pty Ltd sought to modify an existing development approval to introduce staging into a modular accommodation facility, which had been approved for up to 1,000 rooms. Western Downs Regional Council opposed the application, arguing that the proposed changes would result in substantially different development and would not constitute a minor change. The Land Court of Queensland was tasked with determining whether the proposed changes would result in a substantially different development and whether they could be considered a minor change under the Planning Act 2016.

The court had to decide whether the introduction of staging in the development approval constituted a minor change, as defined by the Planning Act 2016. The court also had to determine whether the proposed changes would result in substantially different development. The applicant argued that the introduction of staging would allow it to respond more nimbly to demand, which was a benefit of the original approval. The council contended that the changes would result in substantially different development and would not be minor. The court considered the evidence presented by both parties and the original intent of the development approval.

In assessing whether the proposed changes constituted a minor change, the court found that the applicant had not discharged its onus of proving that the changes would not result in substantially different development. The court was not persuaded that the introduction of staging would not alter the fundamental character of the approved development. The court noted that the original approval was based on the need to provide capacity for up to 1,000 rooms to cater for unpredictable demand and avoid significant adverse consequences for the community. The proposed changes would remove the obligation to proceed with stage 3, thereby altering the approved development. The court concluded that the proposed changes would result in a substantially different development and were not minor.

The application was dismissed, and the court held that the proposed changes to the development approval did not constitute a minor change. The applicant was unable to demonstrate that the changes would not result in substantially different development. As a result, the application was dismissed, and the development approval remained unchanged.

Orders

Orders of the court

THE APPLICATION IS DISMISSED.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons provided above, I am not persuaded on the balance of probabilities that the use of the land will operate as intended. Conclusion In summary, at the original hearing, in the face of evidence of low occupancy, the Applicant advanced a case that there was a need for 1,000 rooms to:(a)cater for demand that might arise at short notice; and(b)avoid significant adverse consequences for the community were demand left unanswered. The Applicant’s case was successful in that regard. It resulted in the development approval. Under the development approval, the development is intended to operate as a facility that provides capacity to accommodate demand for up to 1,000 rooms. It is intended to provide that capacity even though there will be low occupancy at times. It is intended to provide that capacity because of:(a)the inherently unpredictable nature of the industry to which the approval caters; and(b)the significant consequences for the community when demand is left unanswered. The approved rooms are intended to be provided in the form of modular accommodation. This was the situation at the original hearing. At that time, the Applicant did not propose that there be a fluctuation in the number of rooms located on the subject land from time to time. It now seeks to introduce that flexibility. The Applicant’s asserts that it can nimbly respond to demand that arises in a short period. That it will is not reflected in the changes that it proposes. If the proposed changes were approved, there would be no obligation to proceed with stage 3. As such, the proposed changes remove one of the benefits of approving 1,000 rooms, namely the avoidance of significant adverse consequences for the community occasioned by unanswered demand. That benefit was material to the decision to approve the development. While the Applicant’s assertions about its motivations to maximise revenue and the like informs its pursuit of the proposed changes, I am not persuaded that they demonstrate that the proposed changes would not result in a substantially different development. For the reasons provided above, the Applicant has not discharged its onus of establishing that the proposed changes constitute a minor change. In those circumstances, it is unnecessary to assess the merits of the proposed changes. The application should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ausco Modular Pty Ltd v Western Downs Regional Council [2025] QPEC 1
PARTIES:	AUSCO MODULAR PTY LTD (Applicant) v WESTERN DOWNS REGIONAL COUNCIL (Respondent)
FILE NO/S:	BD1979/24
DIVISION:	Planning and Environment
PROCEEDING:	Originating Application
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	13 February 2025
DELIVERED AT:	Brisbane
HEARING DATE:	21 and 25 October 2024 and 10 February 2025
JUDGE:	Kefford DCJ
ORDER:	THE APPLICATION IS DISMISSED.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change an existing development approval to introduce staging – whether the change is a minor change –– whether changes would result in substantially different development
LEGISLATION:	Planning Act 2016 (Qld), ss 73, 78, 78A, 79
CASES:	Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19; [2021] QPELR 112, approved Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705, applied Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2020] QPEC 8, [2020] QPELR 1113, approved
COUNSEL:	C Hughes KC, L Walker and S Formby for the Applicant B Rix for the Respondent
SOLICITORS:	Piper Alderman Lawyers for the Applicant King and Company Solicitors for the Respondent