Gillion Pty Ltd v Scenic Rim Regional Council and Ors
[2017] QPEC 24
•28 April 2017
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2017] QPEC 24
PARTIES:
GILLION PTY LTD
(Appellant/Applicant)
v
SCENIC RIM REGIONAL COUNCIL
(Respondent)
and
JENNIFER PEAT & ORS
(1st, 69th to 105th and 108th Co-Respondents by Election)
and
STUART WRIGHT & ORS
(2nd to 12th Co-Respondents by Election)
and
JEANETTE LOCKEY & ORS
(13th to 61st Co-Respondent by Election)
and
WENDY ALLENDER & ORS
(62nd to 68th Co-Respondent by Election)
and
EAGLE HEIGHTS VILLAGE ASSOCIATION INC.
(106th Co-Respondent by Election)
and
TAMBORINE MOUNTAIN PROGRESS ASSOCIATION
(107th Co-Respondent by Election)
and
THE CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009
(109th Co-Respondent by Election)
FILE NO:
2424 of 2015
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
28 April 2017
DELIVERED BY AUDIO/VISUAL LINK AT:
Brisbane (via Cairns)
HEARING DATE:
24 April 2017
JUDGE:
Morzone QC DCJ
ORDER:
1. It is declared that the proposed changes to the development application are minor changes for the purposes of s. 350 of SPA.
2. The appeal will proceed to be heard and determined on the basis of the changed development application.
3. Costs of the application are reserved.
4. I will hear the parties about the form of orders and any further directions to facilitate a timely appeal hearing in due course.
CATCHWORDS:
PLANNING AND ENVIRONMENT – Application for to proceed with changed development application - “permissible change” –– Whether “substantially different development” under s 367(1)(a) of SPA – nature and scope of change compared to original proposal – proposal premised on various operational constrains to be secured by conditions.
Legislation.
Sustainable Planning Act 2009 (Qld), ss 350, 495 & 760Cases
Coles Group Property Developments Ltd v Sunshine Coast Regional Council [2010] QPELR 494
Collard v Brisbane City Council [2010] QPELR 635
Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579
Heritage Properties Pty Ltd v. Redland City Council [2010] QPELR 510
Multus Pty Ltd (trustee for Multus Trust (t/as Maximes v Rockhampton Regional Council and others) [2016] QPEC 22
Northbrook v. Noosa Shire Council [2015] QPELR 664COUNSEL:
C Hughes QC & M Williamson for the Applicant/Appellant
R Traves QC & P Djohan for the Respondent
OS Williamson for the 109th Respondent by Election
SOLICITORS:
HWL Ebsworth Lawyers for the Applicant/Appellant
Corrs Chambers Westgarth Lawyers for the Respondent
J Peat for the 1st, 69th to 105th and 108th Respondent by Election
S Wright for the 2nd to 12th Respondent by Election
J Lockey for the 12th to 61st & 107th Respondent by Election
W Allender for the 62nd to 68th Respondent by Election
No appearance for the 106th Respondent by Election
HopgoodGanim for the 109th Respondent by Election
The appellant applies to amend its development application subject of the appeal, and seeks orders that the appeal proceed on the basis of the amended application.
Background
The appellant sought development approval for a commercial groundwater extraction use on land at 22-26 Power Parade at Mount Tamborine.
The appellant was apparently motivated to make this further application with a view to meeting critical deficiencies of a previous proposal determined by Robertson DCJ in Gillion Pty Ltd v. Scenic Rim Regional Council & Ors [2013] QPEC 15. Section 5.3 of the supporting town planning described the further proposed development in detail.[1] In essence the proposal involves:
(a)the extraction of water from a sub-artesian source accessed by bore;[2]
(b)the storage of extracted water on-site in large water tanks;[3] and
(c)the transportation of water off-site using a single transporter along a defined route.[4]
[1]Affidavit of B J Lyons [162], exhibits pp. 32-34.
[2]Affidavit of B J Lyons [162], exhibits pp. 32-33.
[3]Affidavit of B J Lyons [162], exhibits p. 33.
[4]Affidavit of B J Lyons [162], exhibits pp. 33-34.
The proposal attracted a number of submissions, including the first 108 respondents by election. The application was assessed and refused by the respondent council. The appellant has appealed the decision.
The proceeding was poised for hearing when the appellant applied for the appeal to be heard and determined on the basis of a changed development application with the changes foreshadowed in the appellant’s solicitors’ letter dated 22 February 2017. The changes follow some personal health issues and the sale of the appellant’s interest in the transport operator.[5]
[5]Affidavit of PA Gill [160].
The application is opposed by the other parties, except the Chief Executive (109threspondent).
Permissible Change
Section 495(2)(b) of the Sustainable Planning Act 1999 (Qld) (“SPA”) provides that a court “must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”
Section 350 of SPA relevantly defines “minor change” as follows:
Meaning of minor change
(1) A minor change in relation to an application, is any of the following changes to the application-
…
(d) a change that-
(i) does not result in a substantially different development; and
(ii) does not require the application to be referred to any additional referral agencies; and
(iii) does not change the type of development approval sought;
(iv) does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment.
(2) In deciding whether a change is a minor change under subsection (1)(d), the planning instruments or law in force at the time the change was made apply (the applicable law).
(3) Application of the applicable law does not stop a change mentioned in subsection 1(d)(ii) or (iv) from being a minor change only because the applicable law, if applied to the application as originally made, would require referral to any additional referral agencies or involve impact assessment.
The controversy in the present application is whether the proposed changes constitute a substantially different development within the meaning of s. 350(1)(d)(i) of SPA.
Substantial in this context means essential, material or important.[6]
[6]Northbrook v. Noosa Shire Council [2015] QPELR 664 at [13].
Whether a change to a development is a minor change is a matter of fact and degree,[7] and is to be considered broadly and fairly,[8] applying a ‘common sense practical approach’.[9] It is also appropriate to have regard to the Statutory Guideline 06/09 ‘Substantially different development when changing applications and approvals’.[10]
[7]Heritage Properties Pty Ltd v. Redland City Council [2010] QPELR 510 at 512, Line E.
[8]Heritage Properties Pty Ltd v. Redland City Council [2010] QPELR 510 at 514, Line F.
[9]Collard v Brisbane City Council [2010] QPELR 635 at 637; Coles Group Property Developments Ltd v Sunshine Coast Regional Council [2010] QPELR 494 at 495.
[10]SPA, s 760.
The Guideline relevantly provides, in part, as follows:
“Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would, therefore, not be a minor change or permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change will result in a substantially different development and is not intended to be exhaustive.
A change may result in a substantially different development if the proposed change:
·involves a new use with different or additional impacts;
·results in the application applying to a new parcel of land;
·dramatically changes the built form in terms of scale, bulk and appearance;
·changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment;
·removes a component that is integral to the operation of the development;
·significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;
·introduces new impacts or increases the severity of known impacts;
·removes an incentive or offset component that would have balanced the negative impact of the development;
·impacts on infrastructure provision from a location or demand.”
This is not intended to be an exhaustive list but a mere guide to determine each case on its own particular circumstances.[11] In doing so, the court ought scrutinise more critically the proposed changes that potentially give rise to raise new or additional impacts not dealt with at the development application stage.[12] The nature and scope of the changes will be examined in the context of the unchanged aspects of the proposed development. It is not a question of whether or not any new or additional impacts can be managed by way of conditions if approved.[13]
[11]Heritage Properties Pty Ltd v. Redland City Council [2010] QPELR 510 at 512, Lines C-E.
[12]Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579 at [15].
[13]Multus Pty Ltd (as trustee for the Multus Trust (t/as Maximes v Rockhampton Regional Council and others) [2016] QPEC 22 at [42].
If the proposed changes create substantially different development, then the changed proposal ought be the subject of a new development application, the IDAS process including public notification.[14]
[14]Emaaas Pty Ltd v Brisbane City Council [2014] QPELR 579 at [17] per Rackemann DCJ.
Proposed Change
The nature and extent of the change is best understood by contrasting the changes with the original proposal. The appellant only seeks to change an aspect of the third component of the proposal, which involves the transportation of the extracted water from the land.
Original Proposal
Section 5.3.3 of the town planning report in the development application described this component as follows (with the relevant part in bold):[15]
[15]Affidavit of B J Lyons [162], exhibits pp.33-34.
“Transportation of Water Off-site
Generally, the only component of the proposed development that would be discernible from beyond the boundaries of the subject site is the transportation of the water off-site.
Only the applicant and its related entity Wetfix Pty Ltd would transport water off-site, using a single truck with a tanker which has a maximum capacity of 28,200 Litres. The truck and tanker trailer is to be stored off-site when it is not in use.
The water would be pumped, via an electric pump located within an existing shed, from the stainless steel storage tanks via pipes and then a hose which connects to the tanker. The location of the storage tanks, pump, truck turn-around area and outlet point for loading are illustrated on the Appendix B – Site Survey included herewith.
The process associated with the transportation of the water off-site is described as follows:
· Tanker truck travels southwards along Power Parade at a slow speed and opens the site entry gate using a remote control.
· Tanker truck enters the site and continues slowly east along an unsealed driveway then around the turnaround facility in a clockwise direction before proceeding to park adjacent the fill point just inside the front gate.
· Driver stops truck engine and connects fill hose to tanker before commencing pumping. Observations demonstrate that the pumping process is barely audible in the near-filed and inaudible at surrounding residences.
· Once the tanker driver is full (approximately 15 to 20 minute filling process) the driver starts the truck and leaves via the gate which is then closed by remote as the truck travels slowly northwards along Power Parade.
…
The truck driver would be the sole operator of the commercial ground water extraction and would only be on-site during the loading of the water. No other employees associated with the commercial ground water extraction use are required on-site to operate the use.
Vehicular movements associated with the transportation of the water off-site will only operate Monday to Friday between the hours of 7:00am and 6pm. Scenic Rim Regional Council could impose a reasonable and relevant condition upon an approval of the development application, restricting the operation of the commercial ground water extraction use to within these nominated times.
The tanker truck will collect on average 4 loads a day (i.e. a maximum of 20 loads a week). Scenic Rim Regional Council could impose a reasonable and relevant condition upon an approval of the development application, restricting the operation of the commercial ground water extraction use to a maximum of 20 loads per week.”
Proposed Change
The proposed changes proposed to the development application will alter the bolded part of the application that limited the transportation to an identified entity, truck and bottling facilities.
In this regard the appellant proposes two changes to the development application, namely:
1. The transport of extracted water from the land will not be via a vehicle owned by an entity related to the appellant (Wetfix), but by vehicles owned by third parties; [16] and
[16]Affidavit of B J Lyons, para 6(a).
2. The transportation of ground water extracted from the land will not be limited to delivery to one water bottling entity related to the appellant, but will also include deliveries to: [17]
[17]Affidavit of B J Lyons [162], para 6(b).
(a) residents and businesses of Mount Tamborine and nearby areas;
(b) a range of bottling facilities off the Mountain;
(c) a range of bottling facilities for charitable purposes (in the case of emergency); and
(d) the location of fire for fire fighting purposes (in the case of a building or bush fire emergency by fire services vehicles).
As emphasised in the appellant’s submissions, the proposed changes are not made at large, instead, they are carefully limited to the confines of the original proposal. In particular, the appellant adheres to the following operational matters (as opposed to mere conditions, if approved), which will remain unchanged and therefore extend to the proposed changes relating transportation:[18]
[18]Affidavit of B J Lyons [162], para 8.
1. The maximum number of daily vehicle movements is limited to 4 empty vehicles entering the land, and 4 laden vehicles leaving the land.
2. A restriction on the times of vehicles movements of:
(a) between the hours of 7.00am and 6.00pm; and
(b) no weekend or public holiday deliveries or collections;
3. Vehicles accessing the land by Power Parade are limited to a left in and right out turn only, thereby precluding a left hand turn to travel in a southerly direction along Power Parade.[19]
[19]Affidavits of P A King [167], para 22(a); B J Lyons [168], para 5; and, A J Douglas [169], para 9.
4. Water carriers associated with deliveries for the local community, including businesses, will be limited to a maximum capacity of 13,000L and a gross vehicle mass of no more than 26 tonnes.[20]
[20]Affidavit of A J Douglas [169], para 5(b).
5. Any articulated vehicle must utilise the haul route approved in the Reasons for Judgment delivered by His Honour Judge Robertson in Gillion Pty Ltd v. Scenic Rim Regional Council & Ors [2013] QPEC 15;
6. A restriction on the type and maximum size of vehicles for transportation of extracted water, including:
(a) a forward cab design vehicle; and
(b) a maximum length of vehicle no greater than 15.3m;
7. Pavement areas of Power Parade to be widened with annual inspections of the pavement by a traffic engineer (at the appellant’s expense), including repairs to that pavement within a reasonable period;
8. The replacement of the existing mirror at the intersection of Power Parade and Main Western Road;
9. An investigation by a qualified person into the temporary impacts of the proposal on neighbouring bores, to be completed and submitted to the respondent within 12 months of any approval.
10. Ongoing monitoring of the production bore and the bore situated at the adjoining nursery to demonstrate that the extraction of groundwater on the land continues to be sustainable. By way of clarification (unrelated to the changes) the appellant propose a limit to the weekly extraction volume of groundwater to a maximum of 564,000L.
11. Compliance with the conditions referred to in attachment 1 to the letter of Hopgood Ganim of 11 November 2015, including Condition 4 requiring an upgrade of the intersection of Geissmann Drive and Eagle Heights Road.
12. A requirement to amend the proposed noise management plan to exclude parking of trucks on the site (and to include a noise barrier on the Land at the turn around area).
It seems to me that these are operational matters integral to the proposal (as changed), as distinct from the appellant merely identifying possible conditions necessary to ameliorate likely impacts. This was emphasised and affirmed in the appellant’s counsel’s oral and written submissions, which allayed much of the respondent’s concerns about the turns in and out onto Power Parade, and any new traffic and amenity impacts of local delivery trucks.[21]
[21]Contrast Affidavit C Schomburgk [164], para. 27(b) etc, J Savery [166] and S Healey [165].
In addition, the appellant accepts that Water Supply Agreements may assure other operational requirements of transporters.[22] At this stage, I only need to proceed on the assumption that the prospective transport operators will act lawfully.
[22]Affidavit of B J Lyons [168], para 4(b) and exhibit BJL-4.
Whether a substantially different development proposed
The controversy in this application is whether the proposed changes constitute a substantially different development within the meaning of s. 350(1)(d)(i) of SPA.
The changes proposed to the development application will not change the three core components of the development, save that additional transporters will have access to the land for local supply. It does not remove any component that is integral to the operation of the proposed development.
The proposed changes will not result in a change to the scale or intensity of the proposed use because there is no change to: the maximum annual extraction; the hours of operation; vehicle numbers, movements and maximum size; or any change the built form or layout of the development in terms of scale, bulk and appearance. The changes do not result in the application applying to a new parcel of land.
The changes will not alter the character or ability of the proposed development to operate as intended from a planning perspective. A commercial ground water extraction use is not dependant upon the transportation or end use of the water. The use is defined in the Beaudesert Shire Planning Scheme 2007 as follows:
“Commercial ground water extraction: means the extraction of ground water resources and the removal of that resource from the property for the purpose of sale. The term includes the treatment and storage of extracted groundwater resources.”
The changes relating to emergency services vehicles merely affirms that emergency services are entitled under the Fire and Emergency Services Act 1990 to issue directions and to access the land to obtain water for fire fighting purposes in any event.[23]
[23]Affidavit of A J Douglas [163], para 14.
The proposed change will facilitate local water supply to the local community, being the residents and businesses of Mount Tamborine and nearby areas. It is arguable that this aspect introduces a benefit, or new incentive, that did not otherwise exist to offset perceived negatives or impacts of the proposed development.[24] Although the local deliveries may generate traffic in the road network, this must be considered in context. These smaller water delivery trucks will depart from the haul route to supply to local businesses or residences in response to community demand, which would otherwise be met by other suppliers associated with the development. In this regard:
[24]Affidavit of B J Lyons [162], para 24.
(a) the proposal will generate not more than 8 low level traffic movements from to and from the land, being minor given the extent of vehicle movements in the local network;[25]
[25]Affidavit of A J Douglas [169], para 8(c)(iv).
(b) the transportation of water for emergency or charitable purposes is likely to occur on limited occasions and for a limited period;[26]
[26]Affidavit of A J Douglas [163], para 16, 19 and 21.
(c) alternative water carriers already travel in the local road network to supply water in response to local demand.[27] The changed proposal will effectively compete and replace water trucks delivering to the local community where those trucks travel from other locations;[28]
(d) the number of deliveries to local members of the community and businesses will remain ad hoc and constrained by local demand and the conditions imposed which limit daily truck movements in any event.[29]
[27]Affidavit of A J Douglas [169] para 10 and earlier affidavit [163], para 12.
[28]Affidavit of A J Douglas [163], para 12.
[29]Affidavit of A J Douglas, para 8(c)(v).
Therefore, in my view, the changes will not give rise to any significant traffic or transport planning issue.[30] For similar reasons, the changed proposal will not introduce new impacts to the existing acoustic currently experienced by the community in relation to water supply.[31] Further, there are no discernable impacts on infrastructure provision, location or demand by reason of the proposed changes.
[30]Contrast Affidavit of S R Healey [165], paras 22-23 and C J Schomburgk [164], paras 29-30.
[31]Contrast Affidavits of J F Savery [166], paras.18–36 and C J Schomburgk [164], paras 27-28.
For these reasons, when considered broadly and fairly, I conclude that the changes proposed to the development application do not result in a substantially different development and are permissible changes for the purposes of s. 350 of SPA.
Conclusion
Therefore, I will allow the application and make the following orders:
1. It is declared that the proposed changes to the development application are minor changes for the purposes of s. 350 of SPA; and
2. The appeal will proceed to be heard and determined on the basis of the changed development application.
3. Costs of the application are reserved.
I will hear the parties about the form of orders and any further directions to facilitate a timely appeal hearing in due course.
Judge DP Morzone QC
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