Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council

[2014] QPEC 8

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No. 46 of 2014

BORAL RESOURCES (QLD) PTY LTD              Applicant

and

BUNDABERG REGIONAL COUNCIL  Respondent

BRISBANE

10.59 AM, THURSDAY, 13 MARCH 2014

ORDER

CATCHWORDS: 

 Planning and Environment – where the applicant requested a permissible change to a development approval relating to a quarry – where approval is limited by condition to a time about to expire - where applicant will be seeking a substantive extension to the period for which the approval has effect – where applicant sought interim extension of the permit to enable determination of the substantive application for approval

COUNSEL: 

SOLICITORS:

D Gore QC (appellant)

N Loos (appellant)

Corrs Chambers Westgarth (appellant)

Connor O’Meara (respondent)

HIS HONOUR:   This is a request for a permissible change to a development approval relating to a quarry.  The change which the applicant ultimately wants is a substantive extension to the period for which the approval has effect.  Currently that is limited by condition to a time which is about to expire. The applicant will be seeking an extension for a further five years.

As senior counsel for the applicant acknowledges, the matter will require some consideration and today, being a day for reviews and directions, is not an appropriate occasion to decide the relief which is ultimately sought.  The matter was, however, brought on today in light of the fact that the approval is soon to lapse. 

A problem of this kind, but under the former legislation, arose in Coominya Sand & Gravel Proprietary Limited v Council of the Shire of Esk [2006] QCA 208. In that case, the approval was allowed to lapse before the Court was asked to make a determination and the Court found itself being unable to assist. An application for leave to appeal to the Court of Appeal was dismissed. In the course of dealing with that application, the Court of Appeal made reference to the fact that no application had been made for an interim change to the relevant condition in order to extend the period of the permit for a time to enable the application for the approval of the substantive relief to be heard and determined. Ultimately, what senior counsel for the applicant sought was an “interim” extension of that kind, and I gave his client leave to amend its originating application to seek such a change.

I have already noted that the legislation which governs this application is different from that which applied in the Coominya Sand & Gravel case and so it’s necessary to look at the provisions of the Sustainable Planning Act to see whether the change which is now requested is appropriate.

What the Court can accede to, pursuant to section 375, is a request for a permissible change.  That expression is defined in section 367 as follows,

(1)    A permissible change, for a development approval, is a change to the approval that would not, because of the change –

(a) result in a substantially different development; or

(b) if the application for the approval were remade including the change –

(i) require referral to additional concurrence agencies; or

(ii) for an approval for assessable development that previously did not require impact assessment—require impact assessment; or

(c) for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity's opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or

(d) cause development to which the approval relates to include any prohibited development.

The change which is requested at this stage, namely a request to extend the period pending determination of the other request to extend for a period of five years – does not fall foul of subparagraphs (a) or (d). Insofar as paragraph (b) is concerned, the expression “concurrence agencies” and “impact assessment” were not features of the legislation which applied at the time. The original development approval was given. Whilst an application for approval which included the change, if made today, would require referral and/or impact assessment, that is not something which has arisen by reason of the change but rather simply by the different planning statute which is now in force. It may also be noted that when the initial development application was made, it went through a publically notified application process which is akin to the assessment process under the Sustainable Planning Act. In such circumstances, I accept the submission that subparagraph (b) is not engaged.

That leaves subparagraph (c) for consideration. That subparagraph focuses upon whether the change would be likely to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed.  I am not in a position today to make a determination about whether the requested five year extension would be likely to have that effect, however it seems to me that it is unlikely that any person would make a properly made submission objecting to the change if the circumstances allowed. It is a modest extension of time simply for the purposes of allowing consideration of the greater extension which is otherwise sought.  In considering likelihood in such circumstances, it seems to me that one must have regard to a reasonable likelihood rather than something which is far fetched or fanciful.

In the circumstances I am satisfied that the change which would extend the life of the permit only for so long as is necessary for the matter to otherwise be determined is a permissible change and I am prepared to approve that request subject to the condition that the proceedings otherwise be promptly prosecuted.

Mr Gore, should the extension instead be worded to say, “Pending final determination or earlier order?”  It seems to me that if, for example and  I’m not suggesting it will, but if your client was to drag its feet and simply refuse to progress the proceedings in reliance upon this new provision, that it would be appropriate for the Court to be able to make an order to vacating the amendment.

MR GORE:   I agree, your Honour.

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