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Whether change to proposed development a minor change
– change required referral to an additional referral
agency – ss.350, 440, 441 and 840 Sustainable Planning
Act 2009
Facts: An application had been brought for
Orders that changes to the proposed development constituted a minor
change for the purposes of s.4.1.52(2)(b) of IPA and s.350 of
SPA.
The development application was for a material change of use and
for a development permit for reconfiguring a lot to facilitate a
staged residential subdivision.
The relevant changes to the proposal involved a change in design
and construction of a proposed bridge connecting the subdivision on
an island pad to the south; filling part of a proposed lagoon; the
fill on the island pad was to be increased by about 1.1m; and
backfilling to the west of the island pad.
The filling of the lagoon involved filling below RL 5m AHD. That
required referral to the Department of Environment and Resource
Management (DERM). An acid sulphate soil issue arose calling up the
referral agency.
The Respondent submitted that pursuant to s.350(1)(d)(ii) the
change was not a minor change. The Appellant relied upon ss.350(2)
and (3) to contend that the requirement that the application be
referred to DERM as an advice agency was not fatal. In so doing it
emphasised the different roles and responsibilities of advice
agencies and concurrence agencies under the IPA.
The Appellant also submitted that even if the change were not a
minor change, the Court retained a discretion based upon ss.440,
441 and 840 of SPA.
Decision: The Court held, in refusing the
application, that:
Notwithstanding a significantly different visual appearance of
the new bridge when compared with the original design, this change
could only be described as minor when considered in the light of
the nature and extent of the proposed subdivision.
Sub-sections (2) and, in particular, (3) of s.350 did not have
the meaning and effect contended for by the Appellant. The trigger
for the referral had nothing to do with any changes to the
"applicable law", but was instead a direct consequence of
proposed new works. The Explanatory Notes to the Sustainable
Planning Bill 2009 were clearly against the position adopted
by the Appellant.
Sections 440, 441 and 820 of SPA did not assist the Applicant.
ss.440 and 820 had no relevance in the circumstances of this
application as it did not involve compliance, non-compliance or
partial compliance with a statutory provision. Section 441 gives
wide powers to the Court to make Orders it considers appropriate in
the circumstances of each case. However, any Order must be made in
accordance with the relevant law. To make the Orders sought by the
Applicant would be in direct conflict with, and defeat the intent
of, s.350(1)(d)(ii) of SPA and, accordingly, would not be
"authorised".
Given the level of unresolved differences of opinion between
the parties' experts, the Court was not sufficiently satisfied
that the proposed changes would not result in a substantially
different development by introducing significant new impacts and/or
increasing the severity of known impacts.
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