Stephen Family Pastoral Pty Ltd v Logan City Council
[2023] QPEC 30
•12 June 2023
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stephen Family Pastoral Pty Ltd v Logan City Council [2023] QPEC 30
PARTIES:
STEPHEN FAMILY PASTORAL PTY LTD
(Appellant)
v
LOGAN CITY COUNCIL
(Respondent)
and
LOGANVIEW ROAD NORTH PTY LTD
(Co-Respondent)
FILE NO/S:
2401/2021
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
12 June 2023
DELIVERED AT:
Brisbane
HEARING DATE:
12 June 2023
JUDGE:
Rackemann DCJ
ORDER:
UPON THE COURT BEING SATISFIED THAT THE CHANGE TO THE DEVELOPMENT APPLICATION AS SET OUT IN THE AFFIDAVITS OF JENNIFER PATRICIA ROUGHAN FILED 20 APRIL 2023, ADRIAN HAROLD CANERIS FILED 20 APRIL 2023, BRYCE RANDALL TREVILYAN FILED 20 APRIL 2023, PAUL ANTHONY KING FILED 26 APRIL 2023, NICHOLAS JOHN MCGOWAN FILED 26 APRIL 2023, JENNIFER PATRICIA ROUGHAN FILED 28 APRIL 2023, NICHOLAS JOHN MCGOWAN FILED 4 MAY 2023, (THE CHANGED DEVELOPMENT APPLICATION) INVOLVES ONLY A MINOR CHANGE WITHIN THE MEANING OF THE TERM IN THE PLANNING ACT 2016, IT IS ORDERED THAT THE APPEALS PROCEED TO BE HEARD ON THE BASIS OF THE CHANGED DEVELOPMENT APPLICATION.
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – AMENDMENT TO PROPOSAL – appeal against council’s approval for a material change of use for the subject land for a childcare centre, service station and shopping centre and a development permit for reconfiguration of the lot, two lots into eight and access easements and a development permit for operational works, being earthworks – where the development application was made in 2018 – where the planning regulation was amended by the Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020 – where that regulation inserted a section that provided that development is assessable development to the extent the development involves interfering with koala habitat in an area that is a koala habitat area but not a koala priority area – where that does not apply to the extent the development is exempted development – where the proposed change does not increase the amount of koala habitat to be interfered with – whether the development insofar as the koala provisions are concerned would be exempted development – whether the change is a ‘minor change’ within the meaning given it in schedule 2 of the Planning Act.
COUNSEL:
D Gore KC and W Macintosh for the Appellant.
N Loos for the Respondent.
C Hughes KC and B Rix for the Co-Respondent.
SOLICITORS:
HWL Ebsworth Lawyers for the Appellant.
Colin Biggers and Paisley for the Respondent.
Mills Oakley for the Co-Respondent.
These are two submitter appeals against the council’s approval of the development application by the co-respondent seeking a development permit for a material change of use for the subject land for a childcare centre, service station and shopping centre and a development permit for reconfiguration of the lot, two lots into eight and access easements and a development permit for operational works, being earthworks. The co-respondent seeks orders that the appeals proceed on the basis of a change to its proposal.
Pursuant to Section 46(3) of the Planning and Environment Court Act 2016, this Court cannot consider a change to the development application unless a change is only a minor change. The same Act defines a minor change by reference to the meaning given it in schedule 2 of the Planning Act. That definition, is relevantly for present purposes, as follows:
minor change means a change that –
a) for a development application –
(i)does not result in substantially different development; and
(ii)if the application, including the change, were made when the change is made—would not cause –
…
D) a referral agency, in assessing the application under section 55 (2) , to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made;
…
The changes to the proposal are described and assessed in the affidavit material, particularly of the co-respondent’s experts. No party to either of the appeals suggested that the changes would result in substantially different development, and I am satisfied on the material that the changes would not result in substantially different development.
There was one party, namely the appellant in appeal 2401 of 2021 – SFP –which contended that the changes are nevertheless not minor because of an asserted failure of the test in subparagraph (a)(ii)(D) of the definition of minor change. In particular, it was asserted that if the development application including the change were now made, the referral agency would be called upon to assess the application, having regard to the development’s interference with koala habitat in a koala habitat area outside koala priority areas.
The development application was made in 2018. It was only subsequent to that, in 2020, that the Planning Regulation was amended by the Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020. That regulation inserted, amongst other things, section 16B into the Planning Regulation. That section provided, in subsection 1, that development is assessable development to the extent the development involves interfering with koala habitat in an area that is a koala habitat area but not a koala priority area. The provision went on, however, to provide that subsection 1 does not apply to the extent the development is, amongst other things, exempted development. I will return to that later.
The SFP submission is that, since a new application including the change would, if now made, require a referral agency to assess the application having regard to that matter, which was not a consideration at the time the original application was made and assessed, the change cannot be considered to be minor. The other submitter appellant did not seek to be heard in relation to that matter. The respondent supported the co-respondent in submitting that there was no difficulty for the co-respondent as alleged by SFP.
There were said to be three answers to the SFP contention. The first was the effect of section 73 of the Regulation which is a transitional provision in relation to the Nature Conservation and Other Legislation (Koala Protection) Amended Regulation 2020. It provides that the regulation as in force from time to time before the commencement, continues to apply in relation to an application that was properly made but not decided before the commencement. That was pointed to in order to submit that the subject application should not be troubled, in any respect, by the changes brought about by the amended regulation. The difficulty with that submission is that section 73 of the Regulation and the definition of minor change in schedule 2 of the Planning Act are dealing with different things.
Section 73 is dealing with the applications to which the Regulation applies. The definition of minor change is dealing with what change or changes will be considered to be minor. In that regard, subsection (a)(ii)(D) poses a hypothetical scenario of what would be the case if the development application were made at the time the change was made. It does not seem to me that section 73 of the Planning Regulation assists the co-respondent in that regard, because I do not regard section 73 as in some way limiting or curtailing or altering the hypothetical scenario which is required to be postulated by the definition of minor change.
The second answer to the SFP submission was that there would, even if the application were to be remade today, be no requirement for assessment pursuant to the new provisions, because the development would be exempted development. I have already observed that section 16B(2) provides that subsection 1 does not apply to the extent that the development is exempted development. Exempted development is defined in schedule 24 to include the following:
development, other than development mentioned in any of paragraphs (a) to (j), that results in a total area on the premises of 500m2 or less of 1 or more koala habitat areas being cleared of native vegetation since 7 February 2020, disregarding an area cleared of native vegetation if any of paragraphs (l) to (p) applies to the clearing; or
…
Those provisions call for an identification of “koala habitat areas”. That is a term that, is in turn, defined in the Regulation by reference to section 7(B)(1) of the Nature Conservation (Koala) Conservation Plan 2017. That section provides as follow:
(1) The chief executive may determine that an area in a koala district is a koala habitat area.
It will be observed that to be a koala habitat area there must be a determination of the Chief Executive. It may be noted that, pursuant to section 4(2), the main purposes of the Act are to be achieved by, amongst other things, enabling the Chief Executive to determine koala priority areas and koala habitat areas. Further, Section 8(1) provides that the chief executive must prepare a map (the Koala Conservation Plan Map) showing, amongst other things, each koala habitat area.
Further, pursuant to subsection 3, if the chief executive makes, amends or revokes a determination under, amongst other things, section 7B, the chief executive must amend the Koala Conservation Plan Map accordingly. Pursuant to section 9, the Koala Conservation Plan Map must be made available for inspection by the public free of charge. The transitional provisions for the Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020 provide, in section 20, that upon the commencement, the map called Koala Conservation Plan Map made by the Chief Executive on the 17th of January 2020 and published on the Department’s website is taken to be the Koala Conservation Plan Map and by reason of Section 21(b) on the commencement the Chief Executive is taken to have determined, under section 7B, that an area in a koala district shown on the Koala Conservation Plan map as a koala habitat area is a koala habitat area.
There is a Koala Conservation Plan Map showing a koala habitat area in relation to the subject site. That shows only a very small area of koala habitat area intruding into the northern boundary at approximately the midpoint of that boundary into the subject site. Mr Caneris, an expert retained by the co-respondent, puts the quantum of clearing on that area presently proposed (i.e., without changes) at approximately 195 square metres. Whilst he contends that, with the proposed changes, that will only decrease, SFP is content to concede that, in any event, it will not increase as a result of the changes.
In order to contend that the development would not be exempted development under the new provisions, SFP points to notes to the relevant map. Those notes refer to the varying scales used for the linework and state that:
Linework should be used as a guide only.
It may be noted that the notes also contain a disclaimer about the accuracy and reliability, completeness or suitability for any particular purpose of mapping as well as a statement that the maps would be updated at least annually to include any koala habitat areas that have been made, amended or revoked. Those notes are used in order to contend that the koala habitat area should not be taken to be that which appears on the map, but rather a much greater area of approximately 2600 square metres of habitat which the expert engaged by SFP, Dr Watson, says has been found on the site.
It is plain from the mapping attached to Dr Watson’s affidavit that the area which he identifies is not simply a matter of a resolution of the scale of the map, but in fact, is an area closer to the north-eastern part of the site which does not appear to be mapped on the map published by the Chief Executive. I have already noted that the relevant provisions require that the koala habitat area to be an area as determined by the chief executive. It may be noted that the Nature Conservation (Koala) Conservation Plan 2017 distinguishes, including in the dictionary, between a koala habitat area and koala habitat.
I do not consider that the qualifications in the notes to the map can lawfully and effectually constitute a determination that the koala habitat area extends beyond anything that could sensibly be said to be shown on the map to other areas of the site by reason of the opinions of an expert engaged in order to do a ground truthing exercise. I therefore reject the submissions of SFP in this regard and accept that even if made today, the development insofar as the koala provisions are concerned would be exempted development. That is sufficient to dispose of the SFP position. I will, however, also address the third argument.
The third basis for rejecting the contention of SFP relates to the definition of minor change itself. The SFP submission simply invites the Court to look at the position that applied at the time the development application was made and to compare it to the position that would apply if the application were remade today and ask whether there would be another matter for the purposes of the particular provision. What that fails to deal with, however, is the cause of the change of position.
The definition of minor change commences with the words, “means a change that”. The definition is, as one might expect, focused on the change and what it results in. The first of the considerations for a development application is that the change does not result in a substantially different development. I have already dealt with that. The second consideration is whether the change is a change that, if a further application were made, would not cause, relevantly, the circumstances referred to in subsection (D). The focus is on the change and what it would cause if the application including the change were made when the change is made. It is not whether the law has changed in the meantime such that the assessment of unaltered parts of a development application would now attract a greater degree of scrutiny.
It is perfectly understandable that the parameters within which a change can be made would be designed such that one could not include some new or different element or aspect at this stage which, if the application were now made again, would attract some greater level of scrutiny by reason of that. It is entirely a different thing to suggest, as senior counsel for the appellant did, that the provision is intended to be triggered by unaltered parts of an application, simply because in the time since the development application was made, there has been some change to the law.
My view in this regard is consistent with the view expressed by Williamson KC DCJ in Cleanaway Solid Waste Pty Ltd v Ipswich City Council and others [2021] QPELR 809 at paragraph 52. Senior counsel for SFP observed, correctly, that his Honour’s view in this regard was strictly obiter. It is nevertheless, in my respectful view, correct. Senior counsel for SFP also suggested that his Honour ought not to have placed as much weight as he did on the explanatory notes to the Planning Bill 2015. There is no need for me to go into the detail of that argument since my view is in accordance with what I regard as an approach to interpretation which gives the provision its ordinary meaning and does not depend upon resort to the explanatory memoranda.
In this case, as I have already noted, the changes that are now sought to the development application are not changes which seek to increase, at all, any clearing of koala vegetation and if anything, there is to be a reduction. There is nothing about the change which causes subparagraph (D) of the definition of minor change to be offended.
Accordingly, I am satisfied that the change comes within the definition of a minor change and the appeals should be permitted to proceed on the basis of the changed proposal.
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