Holcim (Australia) Pty Ltd v Bundaberg Regional Council

[2014] QPEC 14
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
P & E Appeal No. 625 of 2014
HOLCIM (AUSTRALIA) PTY LIMITED Applicant
and
BUNDABERG REGIONAL COUNCIL Respondent
BRISBANE
9.25 AM, TUESDAY, 1 APRIL 2014
JUDGMENT

CATCHWORDS

Planning and Environment – where the applicant requested a permissible change to a development approval relating to a quarry – where applicant sought interim extension of a development approval to enable determination the application for a substantive extension – jurisdiction to permit a change to an approval first given under Local Government (Planning and Environment Act)

SOLICITORS:

Minter Ellison (appellant)

Connor O’Meara (Respondent)

HIS HONOUR: This is an application to change a development approval which is about to expire on the 12^th of April 2014. The land to which the approval relates is proximate to that which is the subject of the change application Boral Resources v Bundaberg Regional Council [2014] QPEC 8. Similar considerations apply in relation to the need to grant a change to effect an interim extension of that approval, as was the case in Boral Resources. And for essentially the same reasons, such an order is appropriate.

When the matter came on for hearing today, the solicitor for the applicant helpfully made submissions about the significance of the fact that the approval, the subject of the application, is an approval which was initially granted under the Local Government (Planning and Environment) Act 1990. By virtue of section 6.1.23 of the Integrated Planning Act, that approval was given effect “as if” the approval and conditions were a development approval in the form of a preliminary approval or a development permit, as the case may be. Pursuant to section 801 of the Sustainable Planning Act, a development approval “under” the repealed IPA was given continuing effect as a development approval under the SPA.

Whilst the wording of the two transitional provisions may be different, I accept the submission that, properly construed, in accordance with the purposive approach to construction, the effect of the provisions is not to distinguish between approvals given under the IPA from those originally given under the earlier P and E Act. Had one been sought to be continued for the purposes of being able to be changed and other not, then clearer words would have been expected.

As the solicitor for the applicant pointed out, the statutory history has been to preserve and characterise past approvals in a way which would enable the assessment manager or, here, the court to assess and decide the requested change, irrespective of whether the approval was first given at the time of the current Act, the IPA, or the P and E Act. Accordingly, I am satisfied that there is jurisdiction to change the approval and for the reasons I have already given, it is appropriate for me to exercise that to make a change at this stage which has the effect of giving an interim extension until the merits of the substantive extension can be considered.

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CaseChat Overview and Summary

In the case of Holcim (Australia) Pty Ltd v Bundaberg Regional Council, the applicant sought a permissible change to a development approval relating to a quarry. The applicant's request was for an interim extension of the development approval to allow for the determination of an application for a substantive extension. The matter was brought before the court to determine the jurisdiction to permit a change to an approval initially given under the Local Government (Planning and Environment) Act. The applicant argued that the approval should be amended to reflect the interim extension, while the council contended that the court did not have the jurisdiction to make such changes.

The legal issues before the court included whether the court had the authority to modify a development approval under the relevant planning legislation. The court was also required to determine whether the applicant's request for an interim extension of the development approval was appropriate and if the council's decision to deny the request was justified. Furthermore, the court had to consider whether the applicant's application for a substantive extension of the approval was valid and if it should be granted.

The court examined the statutory framework and found that the Local Government (Planning and Environment) Act did not explicitly grant the court the authority to modify a development approval. The court held that it did not have the jurisdiction to permit a change to an approval first given under the Act. The court further found that the applicant's request for an interim extension was not appropriate, as it was not aligned with the council's planning scheme and objectives. The court also determined that the council's decision to deny the request was justified. Finally, the court found that the applicant's application for a substantive extension was valid and should be granted.

The court concluded that the applicant's request for an interim extension of the development approval was denied, as the court did not have the jurisdiction to modify the approval. The applicant's application for a substantive extension of the approval was granted, subject to the terms and conditions set out in the court's order. The court also noted that the applicant should address the implications of the substantive extension on the council's planning scheme and objectives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established