Pioneer North Queensland Pty Ltd v Mareeba Shire Council
[2014] QPEC 33
•17 June 2014
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Pioneer North Queensland Pty Ltd v Mareeba Shire Council [2014] QPEC 33
PARTIES:
Pioneer North Queensland Pty Ltd
(Applicant)
v
Mareeba Shire Council
(Respondent)FILE NO:
59 of 2014
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Cairns
DELIVERED ON:
17 June 2014
DELIVERED AT:
Cairns
HEARING DATE:
17 June 2014
JUDGE:
Everson DCJ
ORDER:
Application dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL IMPACT ASSESSMENT AND APPROVAL GENERALLY - where the applicant seeks a change to a development approval the subject of a court order which authorised the applicant to operate an extractive industry– where the applicant seeks to increase the extraction area by approximately 45 per cent – where the development required impact assessment – whether the increase is a permissible change
Sustainable Planning Act 2009 (Qld), ss375, 367
COUNSEL:
SOLICITORS:
Miller Harris Lawyers for the Applicant
McCullough Robertson Lawyers for the Respondent
This is an application for an order pursuant to section 375 of the Sustainable Planning Act 2009 (“SPA”). The application seeks a change to a development approval the subject of an order of this court on 20 June 2008 which approved a development application to operate an extractive industry on land located at 383 Paglietta Road, Mareeba.
The development approval pursuant to the court order contemplated the extraction of sand in two areas on the subject site. The application the subject of the proceeding before me today seeks what is submitted to be an increase of about 45 per cent in the extraction area previously approved. It is submitted that the resource has become depleted more quickly than was anticipated and that the applicant now wishes to extract sand in the same manner from this additional area.
The areas of approved extraction activities and the area the subject of this application all adjoin the northern boundary of the subject site. The areas the subject of the approval are separated by approximately 250 metres. Should this application be approved, almost all of the northern boundary of the subject site will be approved for sand extraction.
On the other side of the northern boundary there are, I am informed, two residences: one which is located approximately 100 metres from the existing stage 1 area near the north-eastern boundary of the subject site and a further residence located approximately 250 metres from the north-western edge of the stage 1 extraction area and the edge of the proposed new additional extraction area. The attitude of the occupiers of these residences which are the closest to the proposed new extraction area is unknown.
Relevantly, pursuant to section 367(c) of SPA, a permissible change “for an approval for assessable development that previously required impact assessment” is defined as a change to the approval that would not, because of the change “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”.
Obviously the development the subject of the order of the court on 20 August 2008 was for development that required impact assessment. On the facts before me it cannot be the case that increasing the permissible area of the extractive industry by approximately 45 per cent within 300 metres of an adjoining dwelling would not be likely to cause a person to make a properly made submission objecting the proposed change if the circumstances allowed.
A permissible change application is not a desirable vehicle to extend the area of a development approval for an extractive industry in any event, given the impacts which usually arise from the carrying out of such a use.
I therefore dismiss the application.
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