RSA (Moorvale Station) Pty Ltd v Isaac Regional Council

[2010] QPEC 147

[2010] QPEC 147

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3038 of 2010

RSA (MOORVALE STATION) PTY LTD	Applicant
and
ISAAC REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 17/11/2010

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning Act 2009, s 367, s 369, s 371, s 374, s 376
Integrated Planning Act 1997, s 4.5.5

Change to an approval by the court in 2007 of a development for miners' accommodation on an isolated rural property of 400 units (now operating) to allow increase to 440 held "permissible change" - Council and principal concurrence agency supportive

HIS HONOUR: This is an application under section 369 of the Sustainable Planning Act 2009 (SPA) that the changes be made to a development approval constituted by an order of Judge Wilson SC in appeal BD845 of 2007 on the 2nd of October 2007.

The order was made after a merits hearing. His Honour's reasons can be found at PMM Brisbane Pty Ltd v. Nebo Shire Council [2007] QPEC 075. What was approved was a new use to be confined to some 27 hectares of a very large rural property to accommodate miners working in mines in Central Queensland.

Four hundred accommodation units were proposed.  His Honour noted that the application showed future expansion plans to 470 units and some additional facilities.  The local town is Coppabella, from which the property itself is quite remote.  The development is up and running. 

What the applicant, who was not involved in the appeal before Judge Wilson, wishes to do is increase by 10 per cent the number of accommodation units to 440.  The court is given to understand that that's necessary to permit the operator to comply with contractual obligations to provide accommodation for miners employed by other contracting parties.  The operator is the applicant.

There is, so Mr Loos, appearing for the applicant tells the court, a proposal, if not, an application to increase the total number of accommodation units to 750.  The court is not being asked to approve an expansion of that order which, on the face of things, as a near doubling of the proposal, would seem inappropriate.

What the court can approve if the assessment process described in section 374 of the SPA leads to a favourable outcome from the applicant's point of view is a "permissible change" as defined in section 367 and that boils down in the present context to determining whether or not the change to the approval might "result in a substantially different development." I do not think that it would.

What's proposed is an expansion at the periphery of the footprint occupied by accommodation units.  It's unlikely that anyone in the outside world would even notice the change.  That's not, in my view, a substantially different development.

I found it an intriguing concept that with the approved development constructed and operating, the SPA provisions could be used to allow an expansion rather than a new development application being required.

The applicant is fortunate to have the support of the Council and, indeed, of the Department of Environment and Resource Management. It was they who were approached last August when the applicant was ready with its proposal for the increase to 440 units. Although amenable to the applicant's proposal, the Council and the Department were unable to provide the changed approval needed given that it's an order of the court that is to be changed (see section 369(1)(d)), hence this originating application which was filed on the 22nd of October 2010.

By section 371, the consent of the owner to such a request is required. Obtaining that has been relatively complicated given that the site has no fewer than six owners. Their consent is established by the signed consents exhibited to Ms McCracken's affidavit sworn on the 15th of November 2010. Mr Loos has tendered relevant extracts from the powers of attorney under which five of those consents were executed on behalf of the relevant companies.

Notwithstanding what strikes me as the unusual feature of the procedure the applicant has adopted, rather than make a new application of the kind that is apparently underway for the increase to 750, I think that the court's obligations under sections 4 and 5 of the SPA to promote efficiency, accountability, coordination and the like in respect of decision making processes indicates that the court ought to grant the relief sought. I don't find anything in the SPA which would stand in the way of the relief sought being granted, especially in circumstances where all concerned are supportive. As things have developed, in undertaking its task as the assessor for purposes of section 374, the court has the advantage of the considerable amount of work that's been done by the Council and by the Department. There's no reason why the court ought not to rely on that work and endorse the results of it.

So far as the Department is concerned, a bulky set of conditions has been prepared.  That will become annexure BB to the court's order today.  It's so described to distinguish it from annexure B (so called) which was the corresponding set of conditions forming part of Judge Wilson's order. 

It also contained an annexure A which might be understood as the Council's conditions.  Those are being changed in ways described in the draft order provided to the court in conditions 1, 6, 28, 29 and 30.

Mr Loos has pointed out that in some respects the changed conditions defer matters so that the Council is to be satisfied of them at the stage of lodgement of a building works application for the additional 40 units.  I accept that that's appropriate in the circumstances.

The last topic for comment I could see in section 376 of the Act which imposes obligations on the court as "the responsible entity" to give written notice of its decision.

The draft order will serve as the notice described in section 376(2).

...

HIS HONOUR:  Paragraph 1 I'll make say "The relief sought in the originating application filed on 22 October 2010 and heard and determined today be granted."

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HIS HONOUR:  Paragraph 8 "The applicant serve a copy of this order on the Department of Transport and Main Roads, being a concurrence agency."

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