Parcel One Pty Ltd v Ipswich City Council

[2007] QPEC 33

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Parcel One Pty Ltd & Ors v Ipswich City Council & Ors [2007] QPEC 033
PARTIES:	PARCEL ONE PTY LTD, ALLAMBI NOMINEES PTY LTD AND GEORGE EDWARD O’DONNELL
Appellants/applicants V
IPSWICH CITY COUNCIL
Respondent And
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY
First Co-Respondent by Election And
BRISBANE CITY COUNCIL
Second Co-Respondent by Election And
THE MINISTER OF LOCAL GOVERNMENT AND PLANNING
Third Co-Respondent by Election
FILE NO/S:	234/2006
DIVISION:	Planning and Environment
PROCEEDING:	Applications within a proceeding
ORIGINATING  COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	20 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 April 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	1 Declare that the Court is satisfied the amendments to the Development Application referred to in paragraph 1 of the application filed in this proceeding on 2 April 2007 are minor changes as that term is used in s 4.1.52(2)(b) of the Integrated Planning Act 1997
2 Declare that, notwithstanding the Order of 5 April 2007, the Court declines to determine the matter raised in paragraph 1 of the application filed in this proceeding on 30 March 2007 as a preliminary point
CATCHWORDS:	PLANNING – PLANNING LAW – amendments to Development Application after commencement of appeal proceedings – application under s 4.1.52(2)(b) IPA – meaning of term ‘minor’
Integrated Planning Act 1997, s 4.1.52(2)(b)
Cases considered: Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61 Butler v Kingaroy Shire Council [2006] QPEC 093 Grant v Pine Rivers Shire Council & Ors [2005] QPEC 081 Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386 Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481 Lascorp Development Group v Burnett Shire Council & Anor [2007] QPEC 024 Liquorland (Australia) Pty Ltd v Gold Coast City Council (2001) 2 Qd R 476 Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPEC 020 Simmons v Esk Shire Council [2006] QPEC 038 Studio Tekton Pty Ltd v Redland Shire Council [2006] QPEC 107
COUNSEL:	J Haydon for appellants/applicants
R Bain QC and M Williamson for respondent Ipswich City Council
E Morzone for first Co-Respondent Environmental Protection Agency
Ms Johnston, solicitor, for second Co-Respondent Brisbane City Council
SOLICITORS:	MacDonnells Law for appellants/applicants
Brian Bartley & Associates for respondent Ipswich City Council
Crown Law for first Co-Respondent Environmental Protection Agency
Brisbane City Legal Practice for second Co-Respondent Brisbane City Council

1. This is another instance of what has become a frequent application in this jurisdiction: the appellants seek to alter the development proposal which is already the subject of the appeal, without prejudicing their right to continue that appeal. The outcome of their application hinges on whether the changes are ‘minor’ within the meaning of that word where appearing in s 4.1.52 of the Integrated Planning Act 1997 (IPA). The section (and its predecessor) has been extensively considered by the court. It provides:

   4.1.52 Appeal by way of hearing anew

(1)	An appeal is by way of hearing anew.
(2)	However, if the appellant is the applicant or a submitter for a development application, the court –
…
(b) Must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.

1. At the outset Counsel for the Environmental Protection Agency and the solicitor representing Brisbane City Council indicated their clients did not oppose the proposed changes and agreed they were minor and, at their request, those parties were excused.

2. In late 2003 the appellants lodged a development application with Ipswich City Council seeking a development permit for a material change of use for a number of environmentally relevant activities on land at Chuwar. The proposal involved, in short, a general waste disposal facility.

3. The application was impact assessable and attracted the interest and participation of a variety of government agencies and the involvement of the Environmental Protection Agency, the Department of Main Roads, the Department of Local Government and Planning, and Brisbane Water. The application was refused by the respondent in December 2005. The matter has proceeded through the usual stages of an appeal in this Court including meetings of experts which began in August 2006.

4. Those meetings have led to the production of a new Concept Design Report (CDR) and Site Management Manual (SMM) which are exhibited to a recent affidavit from Dr Trevor Johnson, an engineer and director of Cardno retained by the appellants. These documents have been considered at experts meetings attended by Dr Johnson, David Bristow (an engineer retained by the respondent), David Kershaw (a landfill/rehabilitation expert, also retained by the respondent), Luke Zambelli of the Environmental Protection Agency and Trevor Lloyd, retained by the Brisbane City Council. All agree the CDR and SMM contain information and procedures referrable to the original development application which are satisfactory to them.

5. The original application involved the filling of an existing, water filled void left by old mining operations on the land, with the ultimate aim of rehabilitating it to a form consistent with a large lot residential development. Many of the changes are highly technical but the most striking, summarised in written submissions from Mr Bain QC and Mr Williamson, Counsel for the respondent, being:

(a)	the proposed filling activity will no longer be staged so as to fill the void from the top down;
(b)	the void is to be completely dewatered and partially filled with clean inert fill prior to the commencement of the use – a process which will take about seven years;
(c)	the proposed use is to be completed within 12 years, plus an allowance for closure activities (in contrast to 20 years plus an allowance for closure activities, according to the original);
(d)	the volume of waste material to be buried has been reduced by 71 per cent.

1. Ipswich City Council also asserted that while the original application only sought approval for a facility designed to receive waste at the rate of 75,000-100,000 tonnes per annum, the amended proposal has increased this capacity to 100,000- 150,000 tonnes per annum. A traverse of the application documents, and responses from Council and co-respondents, makes it clear, however, that annual filling at the higher rate was always understood or anticipated and I am not persuaded this constitutes an actual change.

[8]     Lengthy affidavits have been filed by Dr Johnson, and Mr Kershaw and Mr Bristow, addressing the changes. Mr Kershaw has prepared a Table containing a comparison of the original and current proposals[1]. It does not on its face suggest that, in the large scale of the operations originally proposed, the alterations are dramatic, or striking. The Table tends to corroborate, in fact, a point made by Dr Johnson in his affidavit filed 4 April 2007: that the details contained in the CDR and SMM are largely operational and that, from the viewpoint of any change external to the site or impacts on amenity and the like, there is no obvious difference in the nature of the proposal at all.

[1]            Exhibited to his affidavit filed 13 April 2007

1. The overall nature of the original proposal and the context in which the changes are to be considered was, I thought, nicely summed up by Dr Johnson at para 26 of that affidavit:

   … there is an existing hole to fill and the appellants are proposing to fill it. That concept hasn’t changed nor has the type or volume of material to be used, the manner in which it is to be brought into the site, the external impacts to be generated, nor the end result of the rehabilitation. The only thing that has changed is the process by which the hole is filled once material arrives on site.

2. As this witness elsewhere points out, and I also accept, these changes are ‘operational’ in the sense they relate to the manner in which the material change of use would be brought into effect, and not to the essential nature of the proposal itself. These operational aspects of a development proposal do not always, or indeed commonly, fall to be considered at this stage. As Dr Johnson elsewhere says[2], and I again accept:

   The level of detail required to be provided in the SMM is well beyond that which would normally consider necessary at this stage (that is at the material change of use stage) of a development proposal and more appropriate for the engineering design stage associated with a relevant operational works application. In my 29 year experience as a professional engineer, I have not previously been involved in an application for a material change of use which required the level of detail the appellants have been expected to provide in this matter.

   [2]            Affidavit Trevor Charles Johnson filed 4 April 2007, para 11

3. Dr Johnson’s evidence touching Mr Kershaw’s Table[3] shows, convincingly, that the changes are of this, essentially, ‘operational’ type. It is also persuasive that the change in the manner of the filling activities does not alter the fundamental nature of the proposal, and would have little or no external impact: dewatering was always a requirement, and it is simply the procedure which has altered; and, both the duration of the works and the volume of material required to fill the void were always long, or large. The former appears to have been considerably shortened – something which, commonsense dictates, will reduce impacts. The size of the void has not changed, but the original figures appear to show the volume below the standing water level, while the new figure in the CDR represents the volume below a specified upper water table level.

   [3]            17 April 2007

4. While Dr Johnson uses the word ‘significant’[4] to describe some of the alterations, that adjective appears with specific reference to methods of dewatering and filling the void, changes which are internal to the site and have been required to satisfy the Environmental Protection Agency. As he again points out, however (and without contradiction), none of these changes affect external impacts or the nature, size and purpose of the intended use.

   [4]            Affidavit Trevor Charles Johnson filed 4 April 2007, para 23

5. The changes are summarised by saying that instead of the original proposed method of filling the void in cells and progressively dewatering it over the life of the project, the dewatering will be completed prior to commencement of any fill which will then take place in stages. The CDR and SMM simply record the details of the systems and procedures for the development of the site in this manner – which, as Dr Johnson says and I accept, would normally be resolved later, after approval, when permission for operational works came to be sought. As he also says, the level of detail provided at this stage, without the certainty of planning approval, is unusual.

6. The parties provided copies of 12 decisions of this court touching s 4.1.52, and its predecessor. Recently, 17 decisions were cited to his Honour Judge Brabazon QC in Butler v Kingaroy Shire Council [2006] QPEC 093. Reference was also made, before me, to two subsequent decisions: Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPEC 020, and Lascorp Development Group v Burnett Shire Council & Anor [2007] QPEC 024. Certain principles can be distilled from those cases:

(a)	it is important not to adopt a test other than that stipulated in the statute. The phrase ‘only a minor change’ is a simple and straightforward one which should be construed principally by reference to matters of scale and degree, and broadly and fairly[5];
(b)	it is attractive to adopt a generous approach to the interpretation of the limits within which an application may be changed[6];
(c)	it must, however, be remembered that the matter comes before the court by way of an appeal and the court must not deprive the proceedings of that character by usurping the function of the decision-maker at first instance[7];
(d)	the question may be determined with some assistance from the criteria referred to in Schedule 10 of IPA[8];
(e)	the possibility that the changes proposed are beneficial or ameliorative may be relevant to the third arm of the definition of minor change in Schedule 10, (c) of IPA[9]; but the fact that the changes proposed may be characterised in that way does not automatically overcome the jurisdictional hurdle that the changes must be limited to ones which are only minor[10];
(f)	for the purpose of the exercise it will be useful in some cases to distinguish between the salient, and incidental, features of the original proposal. Modification of a salient feature, if small or inessential, may amount to no more than a minor change. On the other hand, modification of a salient feature which cannot reasonably be seen as small or inessential is likely to be more than a minor change[11];
(g)	the dictionary definition of ‘minor’ includes unimportant, or insignificant. The use of the word ‘only’ in s 4.1.52(2)(b) of IPA might be taken as an indication that what is contemplated is something relatively unimportant[12].

[5]            Grant v Pine Rivers Shire Council & Ors [2005] QPEC 081; Simmons v Esk Shire Council [2006] QPEC 038; Macquarie Leisure Operations (supra)

[6]            Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386, at para [22]

[7]            Macquarie Leisure (supra) at para [25]

[8]            Macquarie Leisure (supra) at paras [21] and [22]

[9]            Macquarie Leisure (supra) at para [28]

[10]           Macquarie Leisure (supra) at para [33]; Studio Tekton Pty Ltd v Redland Shire Council [2006] QPEC 107, at para [17]

[11]           Lascorp Development Group v Burnett Shire Council [2007] QPEC 024, at para [4]

[12]           Lascorp (supra) at para [5]

1. There is nothing novel in the notion that a development application may, and indeed (as recent developments in this jurisdiction suggest) probably will change in the course of assessment, or when subjected to the intense scrutiny of an appeal process[13]. All of the experts appear to agree that the changes here have served to enhance the original proposal, and improved the manner in which it will be performed. That is a not uncommon product of both the IDAS process under IPA, and of the meetings of experts conducted in the course of appeal proceedings here pursuant to Practice Direction 1 of 2006[14].

   [13]           Liquorland (Australia) Pty Ltd v Gold Coast City Council (2001) 2 Qd R 476

   [14]           Heilbronn & Partners v Gold Coast (supra) at para [21]

2. That is not to say, of course, that because changes flow from those processes they are somehow inoculated against categorisation as major, or at least more than minor, changes for the purposes of s 4.1.52. At the highest, the fact they arise from those processes might attract a legitimate submission that they are beneficial with reference to things like impacts, but, it might be expected, it will be a rare case in which changes which attract that description compel, for the same reason, the conclusion that they are minor.

3. The respondent pressed the argument that, vide the remarks of McLauchlan QC, DCJ in Lascorp, the proposed operational changes are salient, rather than incidental elements of the original proposal – the distinction discussed by his Honour in that case, at para [4]. As he also pointed out, however, the distinction will only be useful in certain cases. This appeal has unusual elements – in particular, the fact that no major or permanent structures are proposed and, in truth, all of the work is essentially subterranean. Certainly, the proposal is dramatically different from that which fell for consideration in Lascorp. I doubt, with respect, that the distinction is an appropriate one here but, if it were to be adopted, the changes are more readily described as incidental: they relate to earthworks and the like, involve no apparent change in impacts or effects on amenity, and would only be discernible to an expert engineer.

4. As McLauchlan QC, DCJ went on to note, modification of an incidental feature, even though extensive, may nevertheless amount to no more than a minor change. That is an apt description of the changes here.

5. Council also pressed an argument that an applicant who elects to make a material change to an application, in the context of an appeal like this, obtains a benefit because the modified proposal is assessed in the context of the disputed issues, rather than the array of matters arising by virtue of IPA, ss 6.1.29 and 6.1.30. The argument is not compelling: firstly, it is clear the changes are, essentially, operational and it would be very surprising if their essential elements had not already been scrutinised, properly, under the relevant legislation; secondly, they have been subject to intensive scrutiny from experts retained for the respondent and, indeed, largely approved by them; and, thirdly, the respondent has not pointed to any legal, practical or tactical disadvantage it will suffer in the appeal process as a consequence of the appellants’ application.

6. In Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481 the proceedings involved a deemed refusal of an application for a ‘minor change’ to be made to a town planning consent permit for an extractive industry. The precise change related to an additional area of land comprising between seven and eight hectares. Although the circumstances specifically called up the definition of ‘minor change’ in Schedule 10, Robin QC, DCJ accepted that the ultimate test was simply whether or not the change was only a minor one[15]. His Honour held, however, that while there would be no lessening of the quarrying activity there would, in truth, be no intensification. As he said, at para [17]:

   … the operation will proceed as it has always been conceived and presented – or, if
   

   [15]           Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61

   anything, in a more environmentally sensitive fashion …

7. Those comments are apposite to describe the alterations here. In essence, both physically and operationally, the same material change of use arising from the same development application will occur. It is simply, rather, the process by which it will be affected which is different. While it is conceivable that changes of that kind which give rise to measurably different impacts – the integral element of impact assessment – might in some circumstances be categorised as major, or more than minor, that is not a fair appellation for the changes here.

8. They are of a different kind from those which have fallen for consideration by the court in the other cases to which reference has been made. In Macquarie Leisure it was plainly important that, as was said at para [14], the changes went ‘… well beyond mere matters of detail’. Again, that is neither a fair nor accurate description of the changes here which are, essentially, matters of particularity and detail. Even if they are described as ‘significant’, that adjective attaches itself in a particular circumstance – one in which the alterations are, for the observer, undetectable and without effect, or impact.

9. Once that is understood, the principles summarised earlier compel the conclusion that the changes are minor. It does not involve any straining of the ordinary meaning of the word when it is read in the context of s 4.1.52 and IPA generally. As the Macquarie Dictionary defines the word, one legitimate meaning is ‘… lesser, in size, extent or importance …’; among a number of meanings, the Shorter Oxford has ‘… also, comparatively unimportant or insignificant …’. Both definitions are apt here. For these reasons, I am satisfied the appeal should be allowed to proceed in a way which incorporates the changes in the original application.

1. Pursuant to an order of this court of 5 April 2007, the appellants were also given permission to raise, as a preliminary issue, a question phrased in these terms:

   The private economics of the proposed development are irrelevant to the issue of public or community need raised in the appeal.

2. It was difficult to discern the source, or basis for the application. The same order directed the appellants’ solicitors to file an affidavit exhibiting pieces of transcript which were, however, unilluminating. It appears the question arose out of a dispute about disclosure or, perhaps, costs.

3. In any event, the matter of ‘private economics’ has never been identified as a dispute issue in the appeal and the respondent Council has never suggested the application should be refused for any matter related to that question. The declaration is not required to determine the outcome of the appeal having regard to the notified issues and the evidence which has been exchanged between the parties and I am unpersuaded there is any advantage, or purpose, in addressing it.